Com. v. Ferrari

• Decision Date: 02 August 1991
• Citation: 406 Pa.Super. 12,593 A.2d 846
• Parties: COMMONWEALTH of Pennsylvania v. Robert FERRARI, Appellant.
• Court: Pennsylvania Superior Court

Page 846

593 A.2d 846

406 Pa.Super. 12

COMMONWEALTH of Pennsylvania v. Robert FERRARI, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 15, 1991.

Filed May 21, 1991.

Reargument Denied Aug. 2, 1991.

Paul D. Boas, Pittsburgh, for appellant.

Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before ROWLEY, President Judge, and DEL SOLE and MONTGOMERY, JJ.

ROWLEY, President Judge:

As the result of an altercation that occurred early in the morning of April 26, 1987, and which is described by the trial court in its opinion of February 7, 1990, a jury convicted appellant Robert Ferrari of aggravated assault, 18 Pa.C.S. § 2702(a)(1), and recklessly endangering another person, 18 Pa.C.S. § 2705. Appellant was sentenced to five to ten years imprisonment in accordance with the mandatory sentencing provisions of 42 Pa.C.S. § 9712 (sentences for offenses committed with firearms). In this timely appeal from the judgment of sentence, appellant, represented by new counsel, sets forth numerous assertions of ineffectiveness of trial counsel, which will be addressed seriatim. He seeks a new trial or, alternatively, an evidentiary hearing on trial counsel's alleged ineffectiveness. Having thoroughly reviewed the record and the arguments presented, we affirm the judgment of sentence.

At the outset, we note that trial counsel is presumed to have been effective and that the burden is on the defendant to prove otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). To establish counsel's ineffectiveness, the defendant must prove that 1) his underlying claim has arguable merit, 2) the course chosen by counsel could have had no reasonable basis designed to serve the defendant's interests, and 3) the defendant was prejudiced by counsel's act or omission. Commonwealth v. Durst, 522 Pa. 2, 4-5, 559 A.2d 504, 505 (1989). If it is clear that the defendant cannot meet this test, remand for an evidentiary hearing is unnecessary. Commonwealth v. Wells, 396 Pa.Super. 70, 79, 578 A.2d 27, 32 (1990).

Appellant contends, first, that trial counsel was ineffective in failing to request the court to instruct the jury on aggravated assault as defined in 18 Pa.C.S. § 2702(a)(4) and on simple assault as defined in 18 Pa.C.S. § 2701(a)(3), both of which appellant considers to be lesser included offenses ¹ of the crime of which he was convicted, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1). Appellant adds that trial counsel was also ineffective in failing to object to the jury charge on this ground and in failing to raise the issue in post-trial motions.

Section 2702(a)(1) of the Crimes Code defines aggravated assault as follows:

(a) Offense defined.--A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]

18 Pa.C.S. § 2702(a)(1). 18 Pa.C.S. § 2702(b) states that aggravated assault as so defined is a felony of the first degree. Under § 2702(a)(4), one commits aggravated assault if he or she

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]

18 Pa.C.S. § 2702(a)(4). Aggravated assault as defined in subsection (4) is a felony of the second degree. 18 Pa.C.S. § 2702(b). Simple assault is defined in the pertinent subsection of 18 Pa.C.S. § 2701 as follows:

(a) Offense defined.--A person is guilty of assault if he:

. . . . .

(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

18 Pa.C.S. § 2701(a)(3). At the time of appellant's conviction, simple assault was a misdemeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which case it was a misdemeanor of the third degree. 18 Pa.C.S. § 2701(b). ² Conviction under either § 2701(a)(3) or § 2702(a)(4) would not have subjected appellant to a mandatory sentence of five years imprisonment.

If each and every element of one offense is necessarily an element of a greater offense, the former offense is a lesser included offense of the latter. Commonwealth v. Thomas, 376 Pa.Super. 455, 458, 546 A.2d 116, 118 (1988) (en banc ), alloc. denied, 520 Pa. 616, 554 A.2d 509 (1989); Commonwealth v. Channell, 335 Pa.Super. 438, 445, 484 A.2d 783, 786 (1984). In order for one offense to be considered a lesser included offense of another, therefore, the commission of the greater offense must necessarily involve the commission of the lesser. Commonwealth v. Griffin, 357 Pa.Super. 308, 318, 515 A.2d 1382, 1387 (1986), alloc. denied, 515 Pa. 574, 527 A.2d 535 (1987) [citing Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985) ]. If it would be rational, given the evidence of record, for the jury to find the defendant guilty of the lesser offense but not guilty of the greater, the defendant is entitled to have the jury instructed on the law of the lesser offense. Commonwealth v. Thomas, supra; Commonwealth v. Blount, 387 Pa.Super. 603, 611, 564 A.2d 952, 956 (1989), alloc. denied, 525 Pa. 594, 575 A.2d 561 (1990); Commonwealth v. Channell, supra.

The first step in our analysis, then, is to determine whether the offenses for which jury instructions should allegedly have been requested are in fact lesser included offenses of aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1). With regard to aggravated assault as defined in § 2702(a)(4), the determination has already been made. In Commonwealth v. Ritchey, 313 Pa.Super. 238, 242, 459 A.2d 828, 830 (1983), this Court held that because the "with a deadly weapon" provision of § 2702(a)(4) is not found in § 2702(a)(1), the former is not a lesser included offense of the latter. ³ Appellant attempts to distinguish Ritchey from the case before us by noting that a deadly weapon, the handgun, was involved in the present case. He fails to note, however, that the circumstances of Ritchey also involved the use of a firearm. Moreover, it is evident from this Court's reasoning in the case that the decision as to whether one offense is a lesser included offense of another does not depend on the elements of a particular factual scenario, but on the elements of the pertinent statutory provisions:

[W]hen the two subsections are read together it is apparent that subsection (4) contains an element that is not found in the greater offense of subsection (1). Specifically, subsection (4) requires that the assault be caused or attempted "with a deadly weapon". This element is not contained in subsection (1), which prohibits any attempt to cause or the causing of serious bodily injury but which does not limit itself to any particular mode of causing such an injury.

. . . . .

It is therefore possible that a subsection (1) assault may be proved in some cases without necessarily proving a subsection (4) assault. We therefore hold that subsection 2702(a)(4) assault is not a lesser included offense of subsection 2702(a)(1)....

Id. at 241-42, 459 A.2d at 830 (emphasis added).

We note also that this Court en banc reached the same result, although in a different context, in Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985), aff'd on other grounds, 516 Pa. 21, 531 A.2d 1111 (1987). In that case, both the criminal complaint and the information indicated that the charge against appellant was aggravated assault, but neither specified a subsection of 18 Pa.C.S. § 2702. While a fair reading of the criminal complaint indicated that appellant had been charged with aggravated assault based on § 2702(a)(4), the wording of the information clearly indicated that the charge was based on § 2702(a)(1). This Court explained the significance of the situation as follows:

Since the proof required for subsection (a)(1) and subsection (a)(4) is substantially different and the penalties involved, likewise, are substantially different, the defendant cannot be charged with one subsection and be presented with proof or allegations of a different subsection at trial without amendment approved by the defendant. Aggravated assault, § 2702(a)(4) is not a lesser included offense of aggravated assault, § 2702(a)(1). Commonwealth v. Ritchey, [supra ]. If, upon a conviction or a plea, the court imposed a sentence relating to one subsection of the Crimes Code, when a different subsection carrying a different penalty was proved, this in effect would be an illegal sentence.

Id. 346 Pa.Super. at 608, 500 A.2d at 114-15 (additional citation omitted). This Court held, accordingly, that the Commonwealth was bound by the charge stated in the information, which was aggravated assault under § 2702(a)(1), and could not seek to prove at sentencing that appellant had committed the offense with a deadly weapon. In view of the controlling case law just cited, we hold in the present case that because § 2702(a)(4) aggravated assault is not a lesser included offense of § 2702(a)(1) aggravated assault, trial counsel was not ineffective in failing to request a jury instruction on the former offense.

Appellant contends also that simple assault as defined in 18 Pa.C.S. § 2701(a)(3) is a lesser included offense of aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1). Our research has uncovered no case in which the two subsections are specifically compared. Numerous cases state that simple assault is a lesser included offense of aggravated assault. Some do so without specifying which subsections are being compared, see, e.g., Commonwealth v. Wilks, 250 Pa.Super. 182, 189, 378 A.2d 887, 890 (1977), while others specify one or both of the subsections at issue, see, e.g., Commonwealth v. Channell, 335 Pa.Super. at 443 n. 2, 484 A.2d at 785 n. 2 [if jury believed knife had been used, appellant could be convicted of aggravated assault under, inter alia, § 2702(a)(4); if not, jury might have found him guilty of simple assault, §...