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COMMONWEALTH PENNSYLVANIA v. BRIAN SANDERS (02/15/85)

filed: February 15, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
BRIAN SANDERS, APPELLANT



No. 3560 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 1222-82.

COUNSEL

Larry J. Folmar, Assistant Public Defender, Norristown, for appellant.

J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Wickersham, Wieand and Hoffman, JJ.

Author: Wieand

[ 339 Pa. Super. Page 377]

Brian Sanders, a juvenile, having been certified for trial as an adult, was tried without jury and found guilty of rape,*fn1 indecent assault,*fn2 indecent exposure,*fn3 unlawful restraint,*fn4 recklessly endangering another person,*fn5 simple assault,*fn6 aggravated assault,*fn7 and escape.*fn8 Post-verdict motions were denied. At sentencing, the court concluded that

[ 339 Pa. Super. Page 378]

    the assault convictions and the conviction for indecent exposure had merged into the conviction for rape. Consecutive sentences of imprisonment totaling 17 to 34 years were imposed for rape, unlawful restraint, recklessly endangering another person and escape. On appeal, Sanders argues (1) that the evidence was insufficient to sustain the conviction for recklessly endangering another person; (2) that several evidentiary rulings by the trial court were erroneous; (3) that the sentence was excessive; and (4) that reckless endangerment merged with aggravated assault and rape for sentencing purposes. He also argues that the Juvenile Court failed to properly certify him for trial as an adult.

In determining whether evidence is sufficient to sustain a conviction, we view the evidence in a light most favorable to the Commonwealth and, drawing therefrom all proper inferences which could reasonably have been drawn, determine whether the evidence was sufficient to prove all elements of the crime beyond a reasonable doubt. Commonwealth v. Miller, 327 Pa. Super. 154, 156-57, 475 A.2d 145, 146 (1984); Commonwealth v. Leatherbury, 322 Pa. Super. 222, 225, 469 A.2d 263, 265 (1983).

The evidence in this case showed that appellant, at age 15, had been involuntarily committed to Norristown State Hospital in Montgomery County. On the evening of September 30, 1981, he was escorted to a laundry facility by Polly Holland, a psychiatric security aide trainee. Upon their return, appellant managed to grab Holland around the neck. He then dragged her backwards into a bathroom and later forced her into a day room in a remote part of the hospital. He held her neck so tightly that she was unable to breathe, and she sustained injury which required physical therapy for two months and the wearing of a neck brace for six months. Appellant took Holland's keys from her, locked the doors to the day room, and ordered Holland to undress. With his hand on her neck, appellant threatened to break Holland's neck if she didn't follow his instructions. He then forced her to the floor and engaged in sexual intercourse

[ 339 Pa. Super. Page 379]

    with her. Thereafter, he locked his victim in the room and left. Appellant escaped from the hospital by using a picnic table to assist him in climbing over the wall. Ms. Holland was able to use a pay phone in the day room to call for assistance, but she was too late to prevent appellant's escape. He was apprehended in Philadelphia on November 20, 1981.

A person commits the misdemeanor of recklessly endangering another person "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S. § 2705. This section is, in effect, an ad hoc reckless conduct statute. Toll, Pennsylvania Crimes Code Annotated § 2705 (1974). A sine qua non to a conviction is a conscious disregard of a known risk of death or great bodily harm to another person. Commonwealth v. Henck, 329 Pa. Super. 275, 279, 478 A.2d 465, 468 (1984). In this case, the trial court could properly find from the manner in which appellant ...


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