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April 6, 1984



Before Cirillo, Johnson and Cercone, JJ. Johnson, J., files a Memorandum Dissenting Opinion.

Per Curiam:

Judgment of sentence affirmed.

JOHNSON, J., files a Memorandum Dissenting Opinion.



The majority affirms appellant's conviction of simple assault*fn1 and aggravated assault.*fn2 From my review of the record, I am convinced the evidence is insufficient as a matter of law to sustain these convictions. I would therefore discharge the appellant.

A recapitulation of the facts relevant to the assault charges against the appellant, viewed in the light most favorable to the Commonwealth, as the verdict winner, are as follows. Officers Rihl and Yezzi responded to a police radio message to investigate the activities of an allegedly suspicious black man. Officer Rihl was the first to encounter a black male walking south on Richlieu Road. When questioned by the officer, the man identified himself and said he was on his way to his wife's apartment at Richlieu Garden Apartments. That man was Donald Cummings, the appellant. The appellant, when asked for identification, produced a Pennsylvania driver's license, which Officer Rihl testified properly identified him. Officer Yezzi arrived at the scene at this point.

After examining appellant's identification, Officer Rihl told appellant he was free to go. The appellant then requested a ride to the Richlieu Garden Apartments. Officer Rihl agreed to drive appellant subject to his submitting to a patdown. Appellant voluntarily consented to a patdown and placed himself in the requisite position with his hands on the police car's roof. The appellant then removed his hand from the roof, pulled his shirt tail up with his right hand, and exposed a steak knief that was tucked into his belt. Officer Rihl, who was standing on appellant's right side, yelled to Officer Yezzi, who was on appellant's left side, to warn him that the appellant possessed the knife. Appellant Cummings then pulled the knife from his pants, grabbing the handle with his thumb and forefinger, and dropped it to the ground. Officer Rihl began to step toward the appellant, and, concurrently, the appellant "swooped down and picked up the knife in his right hand." Officer Rihl does not recall to what level above the ground the appellant brought the knife, and the officer's last recollection is that it appeared the appellant was about to turn. At this moment the appellant and the two police officers were struck by an automobile.

The appellant would be culpable for the assault allegations if his actions were sufficient to constitute an attempt. The Pennsylvania Crimes Code provides: "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime."*fn3 Therefore, the essential question for this inquiry is whether these facts constituted a substantial step in the commission of the crimes charged.

Upon reviewing the details of this tragic situation and the trial court's opinion, I must conclude that the facts, as a matter of law, cannot support the jury's conclusion that the appellant's actions evidenced criminal intent or embodied a substantial step toward an assault on either one or both of the police officers. The principal conviction involved, aggravated assault, is a serious offense and a conviction should not be allowed unless clearly warranted by the evidence. Commonwealth v. Lees, 199 Pa. Super. 383, 185 A.2d 815 (1962).

I am unable to conclude that there exists sufficient evidence to warrant the appellant's conviction.

"The test for sufficiency of the evidence is whether accepting as true all the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." (citations omitted)

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 976, 977 (1982).

The facts indicate the appellant voluntarily consented to a patdown, unsolicitedly elected to reveal the steak knife the was carrying, removed it from his belt in a deliberate and non-threatening manner, dropped it, and "swooped down" to pick it up. The accepted recitation of the facts does not indicate the rose from the ground with the knife in any manner that evinced an intent to harm the police officers, nor that he took any action--other than picking up the knife slightly off the ground--that can be construed as a significant act towards an assault.

The majority's opinion inaccurately represents a number of the facts comprising this incident. First, the majority opinion states, "Officer Rihl, upon seeing the knife... prepared to arrest appellant for possession of an offensive weapon." (Majority Opinion, p. 2). Nothing in the record indicates Officer Rihl took any steps that can legitimately be characterized as "prepar(ing)" to arrest appellant. Officer Rihl initiated no physical act, nor did he verbalize anything to appellant to indicate he was about to arrest him. The only indicator of Officer Rihl's intent to arrest the appellant came in his response to questions during direct examination.

Q. "Now, sir, at that point after seeing the knife, what was your intention?"

A. "I would have placed him under arrest."

Q. "Why is that?"

A. "For carrying a prohibited offensive weapon."


THE COURT: Overruled."

(N.T. January 22, 1981, at 209). What Officer Rihl surmised at trial he would have done, especially when nothing else in the record buttresses this assertion, cannot properly be expressed as preparation for arrest. Moreover, Appellant was not even charged with possession of a prohibited weapon.*fn4 The police officer's state of mind concerning this allegation is totally without probative value on the issue of whether the appellant committed aggravated assault and battery. The issue before the trial court should not be confused through the introduction of collateral matters. Bruno v. Brown, 414 Pa. 361, 200 A.2d 405 (1964). Therefore, it is improper for us to consider Officer Rihl's state of mind on this matter.

Second, the majority states that, upon observing that appellant possessed the knife, "Officer Rihl at first recoiled, but then stepped forward in order to conduct a further pat down and to effect an arrest." (Majority Opinion, p. 2.) Again, the majority opinion imprecisely recounts the event. Officer Rihl's testimony more faithfully represents his reaction. "Well, when I saw the knife, I stepped back. And when he dropped the knife to the ground, I told him to put his hands back on the hood of the car. It was my intention to complete the pat down to see if he was carrying any other weapons." (N.T., January 22, 1981, p. 210.) Officer Rihl's statement does not in any way indicate he drew back with shock or fear as the majority opinion's use of the term recoil connotes. Nothing in the record indicates the policemen were not ready to deal with an improbable act of aggression by the appellant.

Third, the majority depicts appellant's actions after he picked up the knife as, he "began to turn" immediately prior to the automobile striking the appellant and the two police officers (Trial Court Opinion pp. 3 and 5.). It is important in ascertaining whether appellant took a substantial step toward the commission of an assault to properly characterize appellant's actions preceeding the accident. The prosecution's evidence was based on Officer Rihl's testimony. On direct examination, Officer Rihl was asked by the court if the appellant held the knife "possibly about shoulder or chin high." Officer Rihl responded:

A. "Your Honor, he just reached down and grabbed it. I don't recall whether he got that high or not."

Q. "Did he make any motions with his body?"

A. "He started to go to turn."

(N.T., January 22, 1981 p. 210-211).

On cross examination, Officer Rihl related:

Q. "Did you ever see him [appellant] straighten up?"

A. "Not completely, No."

Q. "How far did he turn?"

A. "He just started to make a motion to turn."

(N.T., January 22, 1981, p. 236-237.)

Based upon this testimonial evidence, I feel the majority opinion overstates appellant's actions. A distinction must be recognized between the act of "starting to go to turn" as compared to "beginning to turn". Comparatively, Officer Rihl's description denotes a rudimentary state while, sequentially, the majority's testimony suggests a more advanced physical act than the testimony indicates appellant undertook. The above quoted trial testimony forms the foundation for my view that the appellant did not "begin to turn" with the knife, that his bodily motion was in an incipient stage, and that whatever movement occurred did not indicate what the appellant was going to do with the knife.*fn5

Merely holding a knife under these circumstances cannot be construed as a substantial step towards committing an assault. It is pure speculation, at this juncture of appellant's actions, as to just what he was going to do with the knife. Officer Rihl surmised the appellant was going to turn to his left. Was he? There is no evidence to support this assumption.Moreover, even if the appellant did turn, what was he going to do? Was he going to attack two armed policement with a flimsy steak knife, or was he going to hand it to them? If he was going to assault the policement, why would he turn left, which was away from the closest officer (Rihl), require more time to reach his alleged target (Yezzi), and render himself even more vulnerable by exposing his back to Officer Rihl? Any induction would be pure conjecture. "[A] conviction based solely on inference, suspicion, and conjecture cannot stand." Commonwealth v. Frey, 264 Pa. Super. 212, 215, 399 A.2d 742, 743 (1979) (citation omitted).

It is important to emphasize that two elements are required for the crime of attempt: (1) an intent to commit a specific crime and (2) an act constituting a substantial step toward the commission of that crime. Commonwealth v. Chance, Pa. Super. , 458 A.2d 1371 (1983). The majority's opinion cites two cases, Commonwealth v. Bullock, 259 Pa. Super, 467, 393 A.2d 921 (1978); Commonwealth v. Russell, Pa. Super. , 460 A.2d 316 (1983), for the proposition that the same acts may establish the accused's intent and constitute a substantial step toward the commission of that crime. However, both cases involve overt acts that are clearly more substantial than in the situation before us. Bullock and Russell both involve a party charged with attempted rape. A review of the facts in each case will illustrate how they are distinguishable in terms of the accused's degree of execution as compared to our appellant's acts. In Bullock:

When Miss Kirby asked if the bus were traveling northbound, and appellant responded affirmatively, Miss Kirby began to run up the steps to Broad Street. She only reached the first landing when appellant grabbed her from behind, covered her mouth and told her to keep quiet or he would kill her with a knife he was carrying... Appellant then tore Miss Kirby's shirt and pulled down her bra exposing her breasts. As he began to unbuckle her pants, she broke free and he began to choke her. Once again she broke free only to be caught again by appellant. By then however, bleeding profusely, she had managed to reach Broad Street, although appellant still had her by the neck. Fortunately, a police officer patrolling the area heard her screams and saw her in appellant's clutches.

In Russell:

In the instant case, the appellant cut all the victim's clothing from her body with a knife, tied her up, placed tape over her eyes, fondled her breasts and put his finger in her vagina. Appellant was interrupted when the police rang the door bell.

The court in Bullock responded to appellant's contention that the evidence was insufficient to sustain the attempted rape charge by saying the only other reasonable inference that could arise from his conduct (involuntary deviate sexual intercourse) was most implausible and also, itself, a crime. Bullock, 259 Pa. Super. at 473, 393 A.2d at 923. Alternatively, as discussed above, numerous reasonable inferences can be drawn from the circumstances involving appellant Cummings' actions.

The Pennsylvania Supreme Court recently reversed an appellant's conviction due to insufficient evidence in Commonwealth v. Tribble, 79 E.D. Appeal Docket 1982, Supreme Court of Pennsylvania (filed December 1, 1983), which quotes Commonwealth v. Wong Knee New, 354 Pa. 188, 47 A.2d 450 (1946). The reasoning of Wong Knee New is applicable to the present appeal:

When two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty. When a party on whom rests the burden of proof in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither. The evidence in this case was utterly insufficient if submitted under adequate and proper instructions to convince an intelligent and fair-minded jury of the defendant's guilt to a moral certainty so strong as not to be weakened or disturbed by any reasonable doubt.

Wong Knee New, id. at 221, 47 A.2d at 468 (footnote omitted).

Sufficient evidence of a substantial step toward the commission of a crime focuses on "the acts the defendant has done and does not any longer focus on the acts remaining to be done before actual commission of the crime." Commonwealth v. Gilliam, 273 Pa. Super. 586, 589-90, 417 A.2d 1203, 1205 (1980). Prior to the car striking the parties, the appellant simply had not undertaken the minimum requisite actions necessary to constitute an assault.

*fn1 18 Pa.C.S. § 2701.

*fn2 Id. § 2702.

*fn3 18 Pa.C.S. § 901.

*fn4 Officer Rihl's arrest of the appellant for possession of a prohibited offensive weapon, 18 Pa.C.S. § 908, would have been improper. The steak knife possessed by appellant was not one in which the blade was exposed in an automatic way. Also, the steak knife had a common lawful purpose. Failing to meet the requirements for culpability as defined by Section 908(c) of the Crimes Code, appellant could not have properly been arrested for this offense. Commonwealth v. Meyers, 273 Pa. Super. 381, 417 A.d 700 (1980).

*fn5 The trial court opinion describes appellant, after picking up the knife, as, " looking as though he was about to turn." (Commonwealth v. Cummings, Court of Common Pleas, Bucks County, No. 2345 of 1980 (Criminal) Opinion of Judge Beckert, filed June 29, 1982, at p. 3.)

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