Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, No. 671 of 1983.
Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.
Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Cavanaugh, Wieand and Montgomery, JJ. Montgomery, J., dissents.
[ 341 Pa. Super. Page 335]
Does evidence that an eighteen year old defendant placed his arms around a ten year old child and lifted the child from the ground support a conviction for simple assault in violation of 18 Pa.C.S. § 2701(a)(3)? We hold that it does not. Therefore, we reverse the judgment of sentence and discharge the defendant.
On March 11, 1983, a ten year old female child was walking to school with a younger brother and two friends. When she reached the school grounds, Eric Fry, age eighteen, approached her from behind, grabbed her by putting his arms around her and lifted her off the ground. When she started to kick and scream, Fry said, "shut up, you're coming with me." The child had not been acquainted previously with Fry. Two children who were serving as safety patrol members saw what was happening and ran toward Fry; whereupon, he put the child down and walked away. At trial, the child surmised that Fry intended to pull her toward a flight of stairs leading to a locker room, but she conceded that she wasn't certain about that.
Fry was tried by jury and was found guilty of false imprisonment in violation of 18 Pa.C.S. § 2903 and of simple assault in violation of 18 Pa.C.S. § 2701(a)(3). The trial court found the evidence insufficient to sustain the conviction for false imprisonment and arrested judgment thereon. With respect to the conviction for simple assault, however, the trial court denied post-trial motions and sentenced Fry to probation for twenty-three months. Fry appealed.*fn1
[ 341 Pa. Super. Page 336]
Fry was charged and convicted of violating 18 Pa.C.S. § 2701(a)(3) which provides: "A person is guilty of an assault if he: . . . attempts by physical menace to put another in fear of imminent serious bodily injury." To prove a violation of this section, the Commonwealth was required to produce evidence sufficient to enable twelve reasonably intelligent persons to find beyond a reasonable doubt that appellant acted with a specific intent to put the child in fear of imminent serious bodily injury. See: In the Interest of J.L., 327 Pa. Super. 175, 475 A.2d 156 (1984). Serious bodily injury is "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S. § 2301.
When we examine the evidence to determine whether the evidence was sufficient to support such a finding, we view it in the light most favorable to the Commonwealth. Commonwealth v. Carter, 329 Pa. Super. 490, 497, 478 A.2d 1286, 1288 (1984); Commonwealth v. Nelson, 320 Pa. Super. 488, 492, 467 A.2d 638, 640 (1983). Then we determine whether that evidence, together with all reasonable inferences to be drawn therefrom, was sufficient in law to permit the jury to find beyond a reasonable doubt that a crime was committed and that appellant committed it. See: In the Interest of J.L., supra. See generally: Commonwealth v. Moore, 261 Pa. Super. 92, 395 A.2d 1328 (1978). The crime with which appellant was charged required a specific intent. Proof of a person's state of mind may be found from his words or conduct or from the surrounding circumstances. Intent may be shown by circumstantial evidence. Commonwealth v. Russell, 313 Pa. Super. 534, 543, 460 A.2d 316, 321 (1983). A fact finder may find that a person intends the natural and probable consequences of his actions. Commonwealth v. Thomas, 465 Pa. 442, 447, 350 A.2d 847, 849 (1976).
In the instant case, however, the only evidence of physical menace was that Fry put ...