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[U] In re D.D.S.W.

Superior Court of Pennsylvania

February 21, 2014

IN THE INTEREST OF: D.D.S.W., a minor APPEAL OF: D.D.S.W.

NON-PRECEDENTIAL DECISION

Appeal from the Dispositional Order of June 13, 2013 In the Court of Common Pleas of Allegheny County Juvenile Division at Caselog No. T-175751, Docket No. 2010-07 and JID No. 80225-A.

BEFORE: SHOGAN, OLSON and WECHT, JJ.

JUDGMENT ORDER

PER CURIAM:

Appellant, D.D.S.W., appeals from the dispositional order entered on June 13, 2013. We affirm in part, reverse in part, and remand.

The factual and procedural history of this case is as follows. On March 28, 2013, Appellant engaged in a struggle with Pittsburgh Police Officer Matthew McCarthy. Trial Court Opinion, 9/25/13, at 4 (citations omitted). During the struggle, Appellant tugged on Officer McCarthy's taser and firearm. Id. Ultimately, Appellant was adjudicated delinquent of resisting arrest,[1] two counts of disarming a law enforcement officer,[2] and aggravated assault[3] and was committed to Outside In. This timely appeal followed.

On appeal, Appellant only challenges the sufficiency of the evidence related to his aggravated assault adjudication. Appellant's Brief at 4. The Commonwealth concedes that there was insufficient evidence to support the aggravated assault delinquency adjudication and, therefore, requests that Appellant's adjudication of delinquency for aggravated assault be vacated. Commonwealth's Brief at 9-10. "Because evidentiary sufficiency is a question of law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted).

The evidence presented was insufficient to find that Appellant committed aggregated assault. An individual commits aggravated assault if he "attempts to cause or intentionally, knowingly, or recklessly causes serious bodily injury to [a police officer] while [the officer is] in performance of [his] duty." 18 Pa.C.S.A. § 2702(a)(2). "[M]erely pointing a gun at another person in a threat to cause serious bodily injury alone does not constitute an aggravated assault." Commonwealth v. Alford, 880 A.2d 666, 671 (Pa. Super. 2005), appeal denied, 890 A.2d 1055 (Pa. 2005). Appellant took no actions, other than attempting to grab the officer's taser and firearm, to warrant an aggravated assault charge. Thus, we reverse and vacate the aggravated assault adjudication. As Appellant does not challenge any other aspect of the dispositional order, we affirm the resisting arrest and disarming a law enforcement officer adjudications and remand for re- sentencing. See Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013) (citation omitted).

Affirmed in part, reversed in part, and remanded. Jurisdiction relinquished.


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