Appeal from the Judgment of Sentence September 22, 1987 in the Court of Common Pleas of Dauphin County, Criminal No. 2662 CD 1986.
Thomas A. Thornton, Assistant Public Defender, Harrisburg, for appellant.
Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
Cirillo, President Judge, and Wieand and Del Sole, JJ. Del Sole, J., files dissenting opinion.
[ 376 Pa. Super. Page 417]
This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Dauphin County following Darrell Scott's conviction for aggravated assault. We affirm.
During the 1985-86 school year, Rawn Marshall was a student completing his eighth grade semester at the Scott Intermediate School in Harrisburg, Pennsylvania. On April 18, 1986, the appellant, Darrell Scott, decided to visit his brother at the intermediate school with his two nephews. Prior to his visit to the school, Scott had never met Rawn Marshall.
[ 376 Pa. Super. Page 418]
At approximately 12:00 noon, during physical education class, Marshall became involved in a argument with an unidentified student during a basketball game. The fray ended uneventfully, however, when Marshall was leaving school at approximately 4:00 p.m., the individual who argued with him during gym class, along with several other young men, approached him. Scott came forward from the group and proclaimed that "a friend of mine wants to fight you." Undaunted by Scott's provocations, Marshall continued walking without a response. Scott then lunged at Marshall, and struck him on the side of his head. Marshall temporarily lost his balance from the blow, but then recovered and sprinted to the principal's office. There, he related the course of events to the principal as well as to his mother. The principal then summoned the police.
Following an investigation of the events at the intermediate school, Scott was arrested and charged with aggravated assault, 18 Pa.C.S. § 2702(a)(5). On February 17, 1986, Scott was tried before a jury in the Court of Common Pleas Dauphin County and convicted. Post-verdict motions were filed and denied by the court. On September 22, 1987, Scott was sentenced to serve not less than two months nor more than twenty-three months incarceration. This appeal followed.
Scott advances the following two issues for our review: (1) whether the evidence adduced at trial was sufficient to sustain his conviction of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(5); and (2) whether the trial court erred in refusing to instruct the jury that an employment relationship must be found between the victim and the school before § 2702(a)(5) is applicable.
Scott initially contends that the evidence adduced at trial was insufficient as a matter of law in establishing that he committed aggravated assault pursuant to section 2702(a)(5). Specifically, Scott maintains that the Commonwealth failed to prove that his conduct was perpetrated against Marshall inside the school building or classroom, or that the act was committed against an individual acting within the scope of his employment. Both of these criteria,
[ 376 Pa. Super. Page 419]
he avows, are requisite elements to sustain a conviction under § 2702(a)(5).
Generally, the following test is applied when this court reviews the sufficiency of evidence sustaining a conviction:
The test of sufficiency of the evidence -- irrespective of whether it is direct or circumstantial, or both -- is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the [trier of fact] could properly have based [the] verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict at the trial court.
Commonwealth v. Dunlap, 351 Pa. Super. 43, 45, 505 A.2d 255, 256 (1985) (citations omitted). Here, Scott was convicted of aggravated assault. Section 2702 of our Crimes Code defines ...