No. 2109 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Criminal, at No. 1143 of 1981.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Wickersham, Montemuro and Montgomery, JJ.
[ 327 Pa. Super. Page 353]
The appellant, Rick Lee Wood, was convicted of recklessly endangering another person*fn1 after a jury trial in the Lancaster County Court of Common Pleas. Post verdict motions were denied by the trial court. On July 6, 1982, the appellant was sentenced to three (3) to twenty-three (23) months imprisonment. This appeal followed.
The appellant contends that the trial court erred in refusing to instruct the jury on the offense of reckless driving, which he maintains is a lesser included offense of recklessly endangering under the circumstances of this case. We agree.
The facts relevant to this appeal are as follows: On May 27, 1981, two young men, Franklin Ayres and William Hummel, rode their bicycles into the Turkey Hill Minit Mart in Landisville, Lancaster County. At the same time, the appellant was at the market purchasing some iced tea. The appellant was driving a 1969 Chevrolet Coupe, and as he pulled away from the market, he made an obscene gesture toward Hummel. Hummel returned a derogatory witticism pertaining to the appellant's intelligence.
Shortly thereafter, Hummel and Ayres were riding their bicycles toward Hummel's house when they were overtaken by the appellant. The appellant got out of his vehicle and challenged Hummel and Ayres to fight. The two cyclists refused and proceeded down the road. They then heard the appellant's car accelerate toward them. Hummel moved off the road and attempted to jump the curb with his bicycle, but negotiated the jump improperly and fell to the ground. Ayres remained on the road and was struck a glancing blow by the side of appellant's vehicle knocking him to the ground. Neither Ayres, nor Hummel was injured in the incident. We would conclude under these facts that a charge to the jury on reckless driving was warranted.
The test for determining whether an offense is a lesser included offense is whether all the essential elements of the lesser offense are included in the greater offense.
[ 327 Pa. Super. Page 354]
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. (Emphasis added).
We do not dispute the jury's finding that the evidence was sufficient to prove that the appellant was guilty beyond a reasonable doubt of the crime of recklessly endangering another person.*fn2 The two questions which must be answered are (1) whether all of the essential elements of reckless driving are elements of recklessly endangering, and ...