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submitted: May 2, 1984.


No. 03544 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Luzerne County, Criminal Division, at No. 2017 of 1981.


Jonathan Blum, Assistant Public Defender, Wilkes-Barre, for appellant.

Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Spaeth, President Judge, and Brosky and Beck, JJ. Spaeth, President Judge, files a concurring statement.

Author: Brosky

[ 335 Pa. Super. Page 442]

This appeal is from judgment of sentence imposed subsequent to conviction in a trial by jury of Aggravated Assault

[ 335 Pa. Super. Page 443]

    and Recklessly Endangering Another Person. Appellant raises three issues. First, he contends that the trial court erred in refusing to instruct the jury on the lesser included offense of simple assault. Second, he argues that a mistrial should have been granted. Third, he raises the alleged excessiveness of his sentence. Judgment of sentence is vacated on the aggravated assault and reckless endangerment convictions and remanded for a new trial. Appellant does not prevail on the second issue and the third issue is not reviewable at this time.

Appellant first argues that the trial court erred in not charging the jury on the crime of simple assault.*fn1 He contends that there was testimony of record which, if believed, would have justified a verdict of not guilty of aggravated assault or of reckless endangerment but guilty of simple assault. The point in dispute is whether appellant used a knife in the altercation in question.*fn2

The testimony for the prosecution is accurately summarized in the trial court opinion.

The first witness for the Commonwealth, Samuel Witherspoon, testified that he was an inmate at the State Correctional Institution at Dallas; and that on November 23, 1981, he was stabbed by Defendant. According to Witherspoon, Defendant accused Witherspoon of "looking wrong" at Defendant, and, despite Witherspoon's efforts to avoid conflict, "sucker punched" Witherspoon. Witherspoon, expecting a fist fight, turned toward Defendant and was surprised when Defendant pulled a knife from

[ 335 Pa. Super. Page 444]

    his sleeve and stabbed Witherspoon in the left hand, Defendant swinging the knife downward and Witherspoon throwing his hand upward to block the knife. Witherspoon then ran for safety and Defendant was grabbed by prison guards. Lastly Witherspoon identified the weapon used by Defendant to stab Witherspoon. The second witness, Basil Demian, is employed as a correction officer at the State Correctional Institution at Dallas. Officer Demian testified that on the day of the stabbing he saw Witherspoon running from Defendant and Defendant running after Witherspoon. Officer Demian grabbed Defendant and another correction officer, David Carpin, took the weapon which was taken from Defendant and identified it. The knife identified by Officer Demian was the same as that identified by Witherspoon.

The third witness was Correction Officer David Carpin. Officer Carpin verified the testimony given by Officer Demian and also identified the knife taken from Defendant.

The fourth witness, Robert Carriglitto, the Health Care Administrator at Dallas Correctional Institution, verified that Witherspoon was treated on November 23, 1981, for a puncture wound of his left hand and explained the nature of treatment given according to the records of the dispensary.

Finally, Pennsylvania State Trooper George Nowakowski testified that he investigated the stabbing incident and in the process interviewed Defendant. Trooper Nowakowski stated that Defendant admitted not only stabbing Witherspoon but also wanting to kill Witherspoon.

Certainly the above-summarized testimony is sufficient to prove Defendant's guilt of the crime of aggravated assault and battery beyond a reasonable doubt.

There is an abundance of testimony that appellant had and used a knife on the victim. But this testimony is not uncontradicted. At four separate points appellant testified that he did not have a knife in the fracas. Another inmate,

[ 335 Pa. Super. Page 445]

    a friend of appellant's, corroborated this by testifying that he had not seen a knife in appellant's possession on the occasion in question.

The question before us on appeal is whether, given the above testimony, the trial court was required to give a charge on the crime of Simple Assault.

A useful summary of the applicable law in this area was presented in Commonwealth v. Wilds, 240 Pa. Super. 278 at 287-8, 362 A.2d 273 at 278 (1976) (Hoffman, J.) (citations omitted).

"It is well settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it . . .". It is also clear that an offense is a lesser included offense if each and every element of the lesser offense is necessarily an element of the greater. . . . It is not error, however, for a judge to refuse to instruct the jury on the lesser-included offense unless the evidence could support a conviction on the lesser offense. "There is no duty on a trial judge to charge upon law which has no applicability to presented facts. . . .". If under the evidence at trial, the jury must either convict the accused of the greater offense or acquit him it is not error to refuse an instruction on a lesser-included offense. . . . Conversely, if it is rational for the jury to render a verdict of not guilty of the greater offense but guilty of the lesser, it is incumbent upon the judge to instruct the jury on the law related to the constituent offense if so requested by counsel. . . . "It should be emphasized, however, that before a charge on . . . [a lesser-included offense] is required, there thus must be some evidence, from whatever source, which would permit the jury to return such a verdict."

At the outset it must be noted that Simple Assault is a lesser included offense of Aggravated Assault and of Reckless Endangerment. Commonwealth v. Cavanaugh, 278 Pa. Super. 542 at 546, 420 A.2d 674 at 676 (1980). Thus

[ 335 Pa. Super. Page 446]

    the first element necessary for the requested charge is present here.

The simultaneous functioning of two of the basic precepts quoted above is the focus of our enquiry here, since it was a misapprehension of that interplay which spawned the error below. How is it consistent to state that " some evidence, from whatever source" will suffice to mandate a lesser included offense charge and, on the other hand, to make reference to the court's appraisal of the rationality of a jury's potential interpretation of those facts? The trial court here apparently concluded that, despite testimony to the contrary, it would not be rational for the jury to find, as a matter of fact, that a knife was not used by appellant. An affirmance here would require our holding that in a criminal jury trial the court can find certain evidence incredible, unbelievable, so that the jury does not have the opportunity to convict on a lesser charge -- as it would if that evidence were believed by them.*fn3

We do not so hold. The "rationality" principle does have a role in determining whether the charge on the lesser included offense should be given; but that principle, as properly applied, does not have primacy over the "some evidence" principle. A review of these two concepts will make this apparent.

These two principles are presented in a Circuit Court of Appeals Case.*fn4

Two prerequisites [to denying a request for a lesser included offense instruction] seem vital: that there be no factual dispute and that a finding contrary to the only evidence on the issue would be irrational.

[ 335 Pa. Super. Page 447]

    submit such lower offense. And it does not matter how strongly the evidence points to guilt of the crime charged in the indictment, or how unreasonable it would be, as a court may appraise the weight of the ...

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