Commonwealth v. Mott
Commonwealth v. Mott
Opinion of the Court
This is a direct appeal from the judgment of sentence of January 6,1987. Appellant Leroy Tillman was sentenced to nine (9) to twenty-four (24) months imprisonment for simple assault.
The relevant facts of the case are as follows. The charge of simple assault against appellant arose from a shoplifting incident which occurred at a supermarket in Pittsburgh on May 10, 1986. The evidence adduced at trial shows that appellant was observed placing meat items into a plastic bag by the store manager, Mr. Petrelli. Following questioning of appellant by Mr. Petrelli, an elderly female shopper was knocked down while appellant was attempting to flee the store with Mr. Petrelli in pursuit. The victim, Mrs. White, testified at a preliminary hearing that she did not know who knocked her down. Mr. Petrelli was firm in his testimony that it was the appellant who ran into Mrs. White with a shopping cart causing her to fall.
At trial Mrs. White was not called as a witness for the Commonwealth. At the close of the Commonwealth’s case defense counsel raised a demurrer to the evidence. He
I
Appellant’s first contention is that trial counsel was ineffective in failing to preserve for appeal three issues of trial error. We note that the Supreme Court has recently pronounced a two component standard for reviewing ineffectiveness claims:
First, counsel’s performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit____
Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him.
Commonwealth v. Pierce, 515 Pa. 153, 157-158, 527 A.2d 973, 975 (1987).
Appellant’s first claim of ineffectiveness is that counsel did not object to the court’s failure to define “bodily injury” in its instructions to the jury. As to this claim, we find no error. In Commonwealth v. Goins, 348 Pa.Super. 22, 501 A.2d 279 (1985), this court determined that a trial court’s failure to define bodily injury was not prejudicial to the defendant who was charged with simple assault. The court held that while “bodily injury” is a legal term, its meaning is comprehensible to laymen without judicial guidance. Id., 348 Pa.Superior Ct. at 24, 501 A.2d at 280. As in Goins, the jury in the present case heard testimony from which it could have concluded that bodily injury occurred. First, witnesses testified that paramedics were required at the scene. Furthermore, Mrs. White described her injuries when called as a witness during appellant’s case. Trial counsel could hardly be deemed ineffective for failing to
Appellant’s second claim of ineffectiveness is that trial counsel failed to object to the court’s jury instruction regarding the requisite intent which the Commonwealth must prove to establish the crime of simple assault. The disposition of this claim depends upon our characterization of the trial court’s ruling on appellant’s demurrer.
At the close of the Commonwealth’s case, appellant’s counsel demurred and moved to have the simple assault charges against appellant dismissed. Counsel argued that the Commonwealth had failed to prove bodily injury, an essential element of the crime. Counsel’s assertion and the trial court’s statements and ruling concerning the demurrer were as follows:
MR. SWEM: Your Honor, as to the charge of simple assault, again I would ask that that particular count be demurred and the verdict sustained. It is my understanding that the Commonwealth has not presented Mary White [the victim], and there has in effect been no victim, Your Honor.
COURT: Well, that is not necessarily fatal. We heard a description of the action on the conduct on the part of the defendant putting him in bodily contact with the person and knocking her to the floor of the store. And there was further evidence that she remained on the floor, prone on the floor until the paramedics transported her to the hospital. I think that that provides a certain element of charges of the assault, but I don’t think that we have had enough evidence on the other elements that has to do with the—
MR. SWEM: Your Honor—
THE COURT: No, we might not have had enough. The charges here are attempt to cause bodily injury to*139 her. There is no evidence that bodily injury resulted. I am sure it did, but the Commonwealth did not put in any evidence in that regard, but it may be sufficient to let the jury decide whether or not there was an attempt to cause bodily injury.
MR. SWEM: Your Honor, it would go to my position that the only thing that the Commonwealth has shown is that there was contact, that the person was knocked down.
THE COURT: That she flew eight to ten feet in the air and landed on the floor. The demur [sic] is overruled.
The statutory definition of simple assault reads, “A person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S.A. § 2701(a)(1). As appellant correctly points out, the crime of simple assault can be committed in two distinct ways. In the first instance, simple assault-injury attempted, a specific intent to injure is required. See, Interest of J.L., 327 Pa.Super. 175, 475 A.2d 156 (1984). In the second instance, simple assault-injury inflicted, the intent may be either actual and specific or the intent may be implied from the circumstances, such as acting in a manner which manifests a reckless, culpable disregard for the safety of others. See Commonwealth v. Comber, 374 Pa. 570, 582 n. *, 97 A.2d 343 (1953); Commonwealth v. Aurick, 342 Pa.Super. 282, 288, 19 A.2d 920 (1941). Thus, the actor can be charged for the crime if he acts recklessly as well as intentionally or knowingly causing injury.
Appellant argues that the trial court effectively granted his demurrer as to simple assault-injury inflicted and denied it as to simple assault-injury attempted and then erroneously charged the jury on the general intent element of simple assault-injury inflicted. Upon our review of the record, we can only conclude that the court clearly denied, in its entirety, appellant’s demurrer to the evidence.
Although the court’s statements preceding his ruling on the demurrer are confusing, the court did not grant a partial demurrer to the charge of simple assault. We can
Appellant’s third contention concerning ineffectiveness of trial counsel involves counsel’s failure to object to the court’s lack of a limiting instruction regarding a witness’ prior inconsistent statements. Defense witness Mary White testified at trial that she was knocked down by Mr. Petrelli rather than the appellant. During cross-examination Mrs. White admitted testifying at the preliminary hearing that she did not know who hit her. The Pennsylvania Supreme Court has recently reversed its previous position and held that “otherwise admissible prior inconsistent statements of a declarant, who is a witness in a judicial proceeding, and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” Commonwealth v. Brady, 510 Pa. 123,
Pursuant to the preceding discussion, we find each of appellant’s arguments regarding error in the court’s instruction and charging defense counsel with ineffectiveness lacking arguable merit.
II
Appellant’s second argument is that is that because the Commonwealth introduced no evidence of specific intent to injure this court should find the evidence to be insufficient as a matter of law. As evidenced from our discussion in the preceding section, the case against appellant proceeded on both simple assault-injury attempted and simple assault-injury inflicted. The record contains ample evidence to support appellant’s conviction for simple assault-injury inflicted as the testimony of his reckless conduct was sufficient to support a finding of general intent to commit the assault. Accordingly, we find no merit to his claim that the evidence is insufficient, as a matter of law, to support the
Ill
Appellant’s third argument is that the verdict is against the weight of the evidence. However, since trial counsel failed to raise this issue in appellant’s post trial motion the argument is waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), Commonwealth v. Byers, 349 Pa.Super. 162, 502 A.2d 1324 (1986). Therefore, we can only determine whether counsel’s failure to raise the argument was ineffective assistance. The crux of appellant’s argument is the fact that the victim in this case testified that the appellant did not assault her but rather a store employee knocked her down causing her injuries. This witness was impeached by the Commonwealth’s attorney by admitting that she was seeking relief for her injuries in a civil suit against the supermarket. Appellant argues that although it was shown that Mrs. White had an interest in testifying as she did, Mr. Petrelli had an equal interest in protecting his employer by stating that the appellant assaulted Mrs. White. The trier of fact in determining the weight to be given the evidence is free to believe all, part, or none of the evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985). In the present case, the jury was in the best position to examine the credibility of both witnesses in order to resolve the issue of who had in fact knocked the victim down. Therefore, counsel was not ineffective in failing to preserve an argument for appeal which was not meritorious.
Judgment of sentence affirmed.
. 18 Pa.C.S.A. § 2701(a)(1).
. We note that this is not a case in which the trial judge failed to instruct the jury as to an element of the crime. The judge merely failed to give the statutory definition of bodily injury which is defined as "impairment of physical condition or substantial pain”. 18 Pa.C.S. § 2301.
. Appellant does not question the effectiveness of trial counsel’s performance in proceeding, during defense, to provide evidence of bodily injury, and foreclose a challenge to the demurrer. Therefore, we decline to pass upon counsel’s effectiveness in that regard since it is not properly before this court.
Concurring Opinion
concurring:
While I am constrained to join in the result reached in Judge Cercone’s opinion since Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) is the law in this Commonwealth, I write separately to emphasize my concern with the precedent set by that case.
Justice Larsen, writing for the majority in Brady, intimated that these concerns were outdated. According to his majority, the presence of the out-of-court declarant in court and his availability for cross-examination at trial obviates the need for contemporaneous cross-examination. Brady, 510 Pa. at 129, 507 A.2d at 69. Further, the majority states that the jury is allowed to observe the declarant during the present cross-examination, and he quotes the eminent jurist Judge Learned Hand that should the jury then determine that the declarant’s first statement is the truth, they are deciding from what they see and hear in the courtroom. Id. Finally, the Brady majority states that the former statement made by the declarant may be considered to “possess superior indicia of reliability” when compared to the latter, for the former statement was made at a point in time much closer to the event in question, when arguably the memory is much fresher, and the opportunity for fabrication less. Id., 510 Pa. at 130, 507 A.2d at 69.
I have considered the criticisms of the orthodox rule along with Justice Larsen’s opinion in Brady, but I am not
I also disagree with the argument that the prior statement has as great or even greater indicia of reliability than the later one. As the West Virginia court held, errors can arise in transcription, in misstatement by the officer preparing the statement for signature, and from leading questions which create misapprehension on the part of the declarant. Further, as that court pointed out, “Frequently, witnesses in criminal cases are implicated in the criminal activity at issue ..., and the prosecutorial authorities can induce fear, a sense of guilt, and panic, in such a way as to cause distortion of the facts.” Id. at 251, 220 S.E.2d 655. This scenario bears similarity to the situation that arose in Brady. In Brady, Traxler gave a tape recorded statement to police the night after the incident in question allegedly occurred. She admitted to being with the defendant during the day that the murder occurred, and could have easily been concerned for her own welfare when the statement was given to police. No contemporaneous cross-examination had occurred.
Hearsay considerations aside, I am most greatly concerned with the possibility of unfairness to defendants
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Jay MOTT A/K/A Leroy Tillman, Appellant
- Cited By
- 10 cases
- Status
- Published