Appeal from the Order Entered May 23, 2012 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-0000181-2010.
BEFORE: BOWES, GANTMAN and OLSON, JJ.
Appellant, Vincent Wesley Hallman, appeals from the order entered on May 23, 2012. After careful consideration, we affirm.
Appellant, an inmate at the State Correctional Institute in Huntingdon, Pennsylvania, was accused of assaulting a corrections officer while the officer was performing his duties. As a result, the Commonwealth charged Appellant with a number of crimes, including aggravated assault under 18 Pa.C.S.A. § 2702(a)(2) and aggravated assault under 18 Pa.C.S.A. § 2702(a)(3). In relevant part, these crimes are defined as follows:
(a) Offense defined.--A person is guilty of aggravated assault if he:
. . .
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;
(3) attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty[.]
. . .
(c) Officers, employees, etc., enumerated.--The officers, agents, employees and other persons referred to in subsection (a) shall be as follows:
. . .
(9) Officer or employee of a correctional institution, county jail or prison. . . .
18 Pa.C.S.A. § 2702.
On March 17, 2011, Appellant proceeded to a jury trial on the two aggravated assault charges. During the trial, the corrections officer testified that, on the night of the assault, he directed Appellant to sit in a particular area of the prison. N.T. Trial, 3/17/11, at 30. The corrections officer testified that Appellant refused the order and then made a threatening gesture to the officer. Id. at 30-31. When the officer attempted to restrain Appellant, Appellant threw multiple punches at the officer – striking the officer's "chin, jaw, chest, and . . . left ribs." Id. at 36. Moreover, the officer testified that Appellant struck him with such force that Appellant broke one of the officer's ribs. Id. at 37-38. The rib injury, the officer testified, made it "difficult for [him] to breathe, " caused him to suffer pain that – on a scale of one to ten – was a seven or an eight, and required him to miss three months of work to heal. Id. at 37-39, 49, and 51.
Following the presentation of evidence, the trial court instructed the jury on both counts of aggravated assault. N.T. Trial, 3/17/11, at 130-135. Moreover, the trial court instructed the jury on the procedures it should follow in deliberating and rendering a verdict. As the trial court declared:
Now, ladies and gentlemen, we are to the point where I discuss with you the crimes. And strange as it may seem, you will be considering, when you retire, two counts of the crime of aggravated assault. So that it is clear, this defendant can only be found guilty of one of the two or not guilty of both [counts].
Your first duty will be to consider the crime of aggravated assault with respect to the infliction or the attempt to inflict serious bodily injury. If you were to conclude that the Commonwealth has not established beyond a reasonable doubt that crime, then you would turn your attention to Count [II]. And as I pointed out to you, Count [II] alleges that the defendant attempted to cause or that he actually caused bodily injury to the corrections officer.
Id. at 130 and 134 (emphasis added).
The above instruction is generally known as an "acquittal-first progression charge" and, although we will explain this type of charge below, we note that our Court has specifically approved the use of such an instruction. See Commonwealth v. Hart, 565 A.2d 1212, 1216-1217 (Pa. Super. 1989); Commonwealth v. Loach, 618 A.2d 463, 469 (Pa. Super. 1992) (en banc). Further, neither the Commonwealth nor Appellant objected to the trial court's instruction. Certainly, after the trial court finished instructing the jury, the trial court asked: "[n]ow does either counsel want to bring to my attention any errors?" Id. at 138. Both counsel specifically responded "No, Your Honor." Id.
The trial court then provided the jury with the following verdict slip:
AND NOW, this 17th day of March, A.D., 2011, we the jury impaneled in the above ...