No. 512 Pittsburgh, 1982, Appeal from Order of the Court of Common Pleas, Juvenile Division, of Erie County, No. 311 of 1982.
Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
Dana S. Jones, Assistant District Attorney, Erie, for Com., participating party.
Rowley, Wieand and Hester, JJ.
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Joyce Lindsey, age 16, was found guilty of assault and adjudicated delinquent because she used her elbow to hit and push from her the two year old son of her brother while
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the youngster was seated next to her on the living room couch of the home in which they resided. We reverse.
On April 14, 1982, Joyce Lindsey was living in the home of her older brother, Harry Lindsey, who had been appointed to act as Joyce's legal guardian. At or about 2:30 p.m. on that day, Joyce became angry because her guardian had physically restrained her from leaving home in Union City to visit her boyfriend in Erie. She retreated to her bedroom, where she petulantly engaged in loud conduct calculated to make known her displeasure. She returned in a little while to the living room with a bag of candy. As she sat on the sofa eating candy, her two year old nephew sat by her side and rested his head on her arm. At least one witness speculated that the child was begging for a piece of candy. Although the evidence of what happened next is conflicting, the hearing court could have found that the juvenile used her elbow to strike the youngster and push him away from her. The young nephew was startled but did not cry or exhibit evidence of pain. He did not fall from the couch and was not injured in any way.
A juvenile cannot properly be adjudicated delinquent unless and until it has been proven beyond a reasonable doubt that the child committed a "delinquent act." 42 Pa.C.S. § 6341(a), (b). A delinquent act has been defined to include an act constituting a crime under the Pennsylvania Crimes Code. 42 Pa.C.S. § 6302. In the instant case, appellant was accused of committing a simple assault under 18 Pa.C.S. § 2701(a)(1). This section of the Crimes Code provides that a person is guilty of assault if he or she "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another." Bodily injury requires an "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S. § 2301.
Appellant's nephew did not sustain bodily injury as a result of appellant's conduct. He sustained no injury of any type and did not evidence pain. This is not alone controlling, however, for it is not essential to a conviction for assault that the victim sustain actual injury. It is
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enough if the actor attempted to inflict bodily injury. Commonwealth v. Griffin, 310 Pa. Super. 39, 48, 456 A.2d 171, 176 (1983), quoting Commonwealth v. Herriott, 265 Pa. Super. 143, 151, 401 A.2d 841, 845 (1979). See also: Commonwealth v. Hardwick, 299 Pa. Super. 362, 365, 445 A.2d 796, 797 (1982). To show an "attempt" to inflict bodily injury, it must be shown that the actor had a specific intent to cause bodily injury. See: Commonwealth v. Goosby, 251 Pa. Super. 326, 331, 380 A.2d 802, 805 (1977); 18 Pa.C.S. § 901(a); W. LaFave and A. Scott, Handbook on Criminal Law § 82 at 610 (1972); 2 Wharton's Criminal Law § 179 at 298-299 (14th ed. 1979). Although this intent may be proved by circumstantial ...