Appeal from the Judgment of Sentence November 30, 2011, Court of Common Pleas, Delaware County, Criminal Division at No. CP-23-CR-0001978-2011
The opinion of the court was delivered by: Donohue, J
BEFORE: PANELLA, DONOHUE and ALLEN, JJ.
Appellant, Michael Norley ("Norley"), appeals from the judgment of sentence entered on November 30, 2011, following his conviction for simple assault, 18 Pa.C.S.A. § 2701, as a third degree misdemeanor. Norley argues that the Commonwealth charged him only with a second degree misdemeanor under section 2701(a)(1), and therefore his conviction for a third degree misdemeanor under section 2701(b) must be vacated. Norley also contends that the evidence was insufficient to support his conviction for a third degree misdemeanor pursuant to section 2701(b). For the reasons that follow, we affirm the judgment of sentence.
The trial court summarized the relevant factual and procedural background of this case as follows:
This case arises from a brawl on September 16, 2010 when Carmen Giannone, a licensed repossessor, went to co-defendant [Richard] Kauffman's house in Glen Mills to repossess a Jeep Commander registered to Denise Kauffman. N.T., 9/20/11, pp. 30-31. Corvin Vasquez, Giannone's assistant, accompanied Giannone. N.T., 9/20/11, p. 34. Giannone had attempted on prior occasions to repossess the Jeep but without success. N.T., 9/20/11, pp. 31-35.
On this occasion, Giannone could not find the Jeep, and nobody responded when Giannone knocked on Kauffman's door. N.T., 9/20/11, p. 30. As Giannone and Vasquez were leaving, [Norley] drove into the driveway, blocking Giannone's vehicle and accused Giannone of trespassing. N.T., 9/20/11, pp. 38-39. Giannone responded that he was on the property lawfully to repossess a vehicle.
N.T., 9/20/11, p. 39. [Norley] attacked Giannone and struck him with a metal bar in the face and knees. N.T., 9/20/11, pp. 40-41. Vasquez grabbed [Norley] and began wrestling with him and hitting him, and [Norley] struck Vasquez several times in the neck and face with the metal bar. N.T., 9/21/11, p. 12. Co-defendant Kauffman joined in the fight and hit Giannone and Vasquez with a baseball bat. N.T., 9/21/11, pp. 13, 15, 41. [Norley] admitted hitting Giannone and Vasquez but claimed it was in self-defense. N.T., 9/21/11, pp. 117, 140.
[Norley] was charged with aggravated assault, simple assault and conspiracy. The simple assault information did not refer to mutual scuffle but simply included the elements of simple assault under 18 Pa.C.S.A. § 2701(a). During trial, the [c]court inquired whether the simple assault charged included a mutual scuffle. N.T., 9/21/11, pp. 163-64. The [c]court found [Norley] guilty of simple assault (mutual scuffle), a third degree misdemeanor.
Trial Court Opinion, 6/26/12, at 2-3.
Norley raises two issues on appeal:
1. The learned trial [c]court erred when it found [Norley]
guilty of Simple Assault pursuant to 18 Pa.C.S.A. § 2701(b)(1). The Commonwealth filed a criminal information against [Norley] charging him with 18 Pa.C.S.A. § 2701(a)(1) and did not seek to amend the criminal information at any time before the entry of the [c]court's verdict. The Commonwealth proceeded on section (a)(1) of the Simple Assault statute and [Norley] presented a defense based on this offense. Section (b)(1) of the Simple Assault statute is not a lesser included offense of Subsection (a)(1) and the learned trial [c]court exceeded its authority when it found [Norley] guilty of section (b)(1).
2. The evidence presented by the Commonwealth did not allege [Norley] engaged 'in a fight or scuffle entered into by mutual consent' and [Norley] did not tender a defense based upon this section of the Simple Assault statute. The evidence was insufficient as a matter of law to sustain a conviction pursuant to 18 Pa.C.S.A. § 2701(b)(1) as the Commonwealth ...