Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 8713024A.
Chris Rand Eyster, Asst. Public Defender, Pittsburgh, for appellant.
Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
Brosky, Wieand and Kelly, JJ.
[ 388 Pa. Super. Page 34]
John Novak was tried by a jury and was found guilty of aggravated assault and resisting arrest.*fn1 On appeal from the judgment of sentence,*fn2 he contends that the trial court erred in refusing to give an instruction to the jury on the crime of simple assault. We disagree and affirm.
On November 22, 1987, at approximately 9:50 p.m., Rochelle Brackney, a uniformed police officer, was sitting in a marked patrol car on the South Side of Pittsburgh, when she was approached by appellant. Appellant knocked on her window and asked for a cigarette and a light. He then removed a wallet from his trousers, threw it at the officer and into the squad car, and walked away. Officer Brackney radioed for assistance and pursued appellant on foot. After she had caught up with and attempted to question
[ 388 Pa. Super. Page 35]
him, appellant shouted obscenities at her and made threatening remarks. When appellant continued in this manner despite warnings to desist, Officer Brackney placed him under arrest for disorderly conduct. Appellant pushed the officer against a parked car, threw her against a brick wall, and was "swinging and punching" at her when other officers arrived on the scene. Officer Brackney's injuries included a cervical strain of her neck, pulled muscles in her back, and torn ligaments of her hands.
Appellant was charged with aggravated assault in violation of 18 Pa.C.S. § 2702(a)(3), as amended, as well as with resisting arrest and disorderly conduct. After the evidence had been presented at trial, defense counsel orally requested the court to instruct the jury on the crime of simple assault. The trial court refused to do so, and appellant contends that this was error.
Prior to 1987, a person was guilty of aggravated assault in violation of 18 Pa.C.S. § 2702(a)(3) if he "attempt[ed] to cause or intentionally or knowingly cause[d] bodily injury to a police officer making or attempting to make a lawful arrest." However, by amendment of Dec. 11, 1986, P.L. 1517, No. 164, § 1, effective in 60 days, the law was revised so that a person now commits the crime of aggravated assault when he "attempts to cause or intentionally or knowingly causes bodily injury to a police officer or firefighter in the performance of duty." Appellant was charged with committing aggravated assault in violation of the amended statutory provision.
[ 388 Pa. Super. Page 36]
A person commits the crime of simple assault if he "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another." 18 Pa.C.S. § 2701(a)(1). Simple assault has been held to be a lesser included offense of aggravated assault. See: Commonwealth v. Sirianni, 286 Pa. Super. 176, 428 A.2d 629 (1981); Commonwealth v. Frank, 263 Pa. Super. 452, 398 A.2d 663 (1979). As a general rule, a trial court should give a charge on a lesser included offense where there is any disputed ...