Com. v. Gruff

• Citation: 822 A.2d 773
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. John A. GRUFF, Appellant.
• Decision Date: 27 March 2003
• Court: Superior Court of Pennsylvania

822 A.2d 773

COMMONWEALTH of Pennsylvania, Appellee, v. John A. GRUFF, Appellant.

Superior Court of Pennsylvania.

Submitted February 4, 2002.

Filed March 27, 2003.

Reargument Denied May 29, 2003.

Elizabeth A. Hoffman, Harrisburg, for appellant.

Daniel W. Stern, Asst. Dist. Atty., New Bloomfield, for Com., appellee.

BEFORE: LALLY-GREEN, BENDER and KELLY, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, John A. Gruff, appeals from the judgment of sentence entered on November 9, 2000. We affirm.

¶ 2 Our review of the record reflects the following. Timothy McCrone, Appellant's neighbor, testified that Appellant accosted him on March 8, 2000. N.T., 10/23/00, at 27, 30-32. McCrone testified that, as he was walking home from a neighbor's house, Appellant grabbed him from behind, and brought a loaded rifle equipped with a bayonet up toward him until the blade was touching McCrone's neck. Id. at 30-32. McCrone testified that Appellant stated, "You're one of them, ain't you?" Id. at 32. Appellant then repeated the phrase one or two more times and then added, "I just ought to kill you.... Do you want to die today or tomorrow?" Id. McCrone responded that he did not want to die at all. Id. After a few moments, when he no longer felt the bayonet touching his neck, McCrone escaped and ran into the woods. Id. at 33. Appellant made no attempt to hold onto McCrone or fire a shot at him while McCrone ran off. Id. McCrone ran to a neighbor's house and called his wife to get him. Id. McCrone reported the incident to the Pennsylvania State Police. Id. at 34.

¶ 3 On October 23, 2000, a jury convicted Appellant of aggravated assault (two counts), simple assault, driving under the influence of alcohol to a degree which rendered Appellant incapable of safe driving, terroristic threats, recklessly endangering another person, and possession of an instrument of crime.¹

¶ 4 Appellant was sentenced on November 9, 2000, to 5 to 10 years on one count of aggravated assault with a merger of the sentences for the other count of aggravated assault, simple assault, terroristic threats, and recklessly endangering another person. Appellant was sentenced to 2½ to 5 years on the possession of firearm by convicted felon, and a five-year period of probation for possessing an instrument of crime. Appellant received a sentence of 30 days to 2 years for the driving under the influence conviction.

¶ 5 Appellant filed a timely motion to reconsider sentence, which was denied. No appeal followed. On May 8, 2001, Appellant filed a PCRA petition alleging that counsel had neglected to file a notice of appeal. On May 11, 2001, by order of court, Appellant's right to a direct appeal was restored. This appeal followed.

¶ 6 Appellant raises three issues on appeal:

1. Did the Commonwealth prove beyond a reasonable doubt that Appellant committed attempted aggravated assault when the evidence did not show that he made a threat of immediate harm and took a substantial step toward injuring the victim while holding him for a matter of seconds or when the victim ran away?

2. Did the Commonwealth present sufficient evidence to prove beyond a reasonable doubt that Appellant was driving under the influence to a degree which rendered him incapable of unsafe driving when there was no evidence of erratic driving or of conduct indicating intoxication?

3. Did the trial court abuse its discretion when it did not sustain defense counsel's objection to the prosecutor's highly inflammatory comment to the jury during closing arguments by giving a curative instruction or declaring a mistrial?

Appellant's Brief at 3.

¶ 7 Appellant first asserts that the evidence was insufficient to support his convictions for aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) and (4).² Appellant complains that the Commonwealth did not prove that he made a threat of immediate harm and took a substantial step toward injuring the victim.

¶ 8 Our standard of review for a challenge to the sufficiency of the evidence is well settled. We must view all the evidence in the light most favorable to the verdict winner, giving that party the benefit of all reasonable inferences to be drawn therefrom. Commonwealth v. Torres, 564 Pa. 219, 766 A.2d 342, 344 (2001). Additionally, it is not the role of an appellate court to weigh the evidence or to substitute our judgment for that of the fact-finder. Commonwealth v. Vetrini, 734 A.2d 404, 407 (Pa.Super.1999). ¶ 9 Aggravated assault is defined in 18 Pa.C.S.A. § 2702. Sections 2702(a)(1) and (a)(4) provide 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;...

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

18 Pa.C.S.A. §§ 2702(a)(1) and (a)(4). Also, the following terms are defined in 18 Pa.C.S.A. § 2301:

"Bodily injury." Impairment of physical condition or substantial pain

"Serious bodily injury." Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

"Deadly weapon." Any firearm, ..., or any device designed as a weapon and capable of producing death or serious bodily injury...

For aggravated assault purposes, an "attempt" is found where the accused, with the required specific intent, acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another. Commonwealth v. Galindes, 786 A.2d 1004, 1009 (Pa.Super.2001), appeal denied, 569 Pa. 691, 803 A.2d 733 (2002). As our Court has previously stated:

As intent is a subjective frame of mind, it is of necessity difficult of direct proof[.][W]e must look to all the evidence to establish intent, including, but not limited to, appellant's conduct as it appeared to his eyes[.] Intent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances.

Commonwealth v. Roche, 783 A.2d 766, 768 (Pa.Super.2001), appeal denied, 568 Pa. 736, 798 A.2d 1289 (2002).

¶ 10 First, we address the standards applicable to the attempt segment of 18 Pa.C.S.A. § 2701(a)(1). Attempt in this context is demonstrated by proving that the accused acted in a manner which constitutes a substantial or significant step toward perpetrating serious bodily injury upon another along with the intent to inflict serious bodily injury. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). The Alexander Court made clear that an attempt under § 2701(a)(1) requires a showing of some act, albeit not one causing serious bodily injury, accompanied by an intent to inflict serious bodily injury. Id. at 889.

¶ 11 In Alexander, the defendant was convicted of aggravated assault under § 2701(a)(1) in circumstances where he delivered one punch to the victim's head and then walked away. Id. at 888. The Supreme Court stated that where the injury actually inflicted did not constitute a serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury. Id.

where the victim did not actually sustain the requisite serious bodily injury, we cannot say that the mere fact that a punch was delivered to that portion of the body is sufficient, without more, to support a finding that appellant intended to inflict serious bodily injury. Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.

Id. at 889.

¶ 12 The Court concluded that such intent was not demonstrated in the record and listed factors to consider in determining whether the intent to inflict serious bodily injury was present. Id. Those factors included evidence of a significant difference in size or strength with the victim, the defendant's use of a weapon or implement to aid his attack, and his statements before, during or after the attack which might indicate his intent to inflict further injury on the victim. Id. at 889. The Court concluded by saying:

To accept the Commonwealth's argument in this case would be to allow an admitted simple assault to be bootstrapped up to an aggravated assault. We hasten to add that a simple assault combined with other surrounding circumstances, may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault. All we hold is that the evidence in the instant case is insufficient to support such a finding.

Id. at 889-890.

¶ 13 Our Court's rulings, consistent with Alexander, focus on whether the record reflects evidence of an intent to inflict serious bodily injury. Aggravated assault can be demonstrated with proof of such intent regardless of whether it was impossible to actually cause serious bodily injury. Commonwealth v. Lopez, 439 Pa.Super. 625, 654 A.2d 1150 (1995). Likewise, aggravated assault can be found with proof of such intent regardless of whether any serious bodily injury resulted. Commonwealth v. Fierst, 423 Pa.Super. 232, 620 A.2d 1196, 1202 (1993); Commonwealth v. Rodriquez, 449 Pa.Super. 319, 673 A.2d 962 (1996). Finally, aggravated assault can be found with proof of such intent even if no actual injury resulted. Commonwealth v. Rosado, 454 Pa.Super. 17, 684 A.2d 605, 607 (1996).

¶ 14 In Lopez, an accused fired eight bullets at the front door of an empty residence of his girlfriend. The Court held that a prima facie case of aggravated assault was established by the Commonwealth if the accused possessed the...