Commonwealth v. Channell

Decision Date16 November 1984
Citation335 Pa.Super. 438,484 A.2d 783
PartiesCOMMONWEALTH of Pennsylvania v. John CHANNELL, Appellant.
CourtPennsylvania Superior Court

Submitted May 2, 1984. [Copyrighted Material Omitted]

Jonathan Blum, Asst. Public Defender Wilkes-Barre, for appellant.

Joseph Giebus, Asst. Dist. Atty., Wilkes-Barre, for Commonwealth appellee.

Before SPAETH, President Judge, and BROSKY and BECK, JJ.


This appeal is from judgment of sentence imposed subsequent to conviction in a trial by jury of Aggravated Assault and Recklessly Endangering Another Person. Appellant raises three issues. First, he contends that the trial court erred in refusing to instruct the jury on the lesser included offense of simple assault. Second, he argues that a mistrial should have been granted. Third, he raises the alleged excessiveness of his sentence. Judgment of sentence is vacated on the aggravated assault and reckless endangerment convictions and remanded for a new trial. Appellant does not prevail on the second issue and the third issue is not reviewable at this time.

Appellant first argues that the trial court erred in not charging the jury on the crime of simple assault. [1] He contends that there was testimony of record which, if believed, would have justified a verdict of not guilty of aggravated assault or of reckless endangerment but guilty of simple assault. The point in dispute is whether appellant used a knife in the altercation in question. [2]

The testimony for the prosecution is accurately summarized in the trial court opinion.

The first witness for the Commonwealth, Samuel Witherspoon, testified that he was an inmate at the State Correctional Institution at Dallas; and that on November 23, 1981, he was stabbed by Defendant. According to Witherspoon, Defendant accused Witherspoon of "looking wrong" at Defendant, and, despite Witherspoon's efforts to avoid conflict, "sucker punched" Witherspoon. Witherspoon, expecting a fist fight, turned toward Defendant and was surprised when Defendant pulled a knife from his sleeve and stabbed Witherspoon in the left hand, Defendant swinging the knife downward and Witherspoon throwing his hand upward to block the knife. Witherspoon then ran for safety and Defendant was grabbed by prison guards. Lastly Witherspoon identified the weapon used by Defendant to stab Witherspoon.

The second witness, Basil Demian, is employed as a correction officer at the State Correctional Institution at Dallas. Officer Demian testified that on the day of the stabbing he saw Witherspoon running from Defendant and Defendant running after Witherspoon. Officer Demian grabbed Defendant and another correction officer, David Carpin, took the weapon which was taken from Defendant and identified it. The knife identified by Officer Demian was the same as that identified by Witherspoon.

The third witness was Correction Officer David Carpin. Officer Carpin verified the testimony given by Officer Demian and also identified the knife taken from Defendant.

The fourth witness, Robert Carriglitto, the Health Care Administrator at Dallas Correctional Institution, verified that Witherspoon was treated on November 23, 1981, for a puncture wound of his left hand and explained the nature of treatment given according to the records of the dispensary.

Finally, Pennsylvania State Trooper George Nowakowski testified that he investigated the stabbing incident and in the process interviewed Defendant. Trooper Nowakowski stated that Defendant admitted not only stabbing Witherspoon but also wanting to kill Witherspoon.

Certainly the above-summarized testimony is sufficient to prove Defendant's guilt of the crime of aggravated assault and battery beyond a reasonable doubt.

There is an abundance of testimony that appellant had and used a knife on the victim. But this testimony is not uncontradicted. At four separate points appellant testified that he did not have a knife in the fracas. Another inmate, a friend of appellant's, corroborated this by testifying that he had not seen a knife in appellant's possession on the occasion in question.

* * *

The question before us on appeal is whether, given the above testimony, the trial court was required to give a charge on the crime of Simple Assault.

A useful summary of the applicable law in this area was presented in Commonwealth v. Wilds, 240 Pa.Super. 278 at 287-8, 362 A.2d 273 at 278 (1976) (Hoffman, J.) (citations omitted).

"It is well settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it...". It is also clear that an offense is a lesser included offense if each and every element of the lesser offense is necessarily an element of the greater. ... It is not error, however, for a judge to refuse to instruct the jury on the lesser-included offense unless the evidence could support a conviction on the lesser offense. "There is no duty on a trial judge to charge upon law which has no applicability to presented facts. ...". If under the evidence at trial, the jury must either convict the accused of the greater offense or acquit him it is not error to refuse an instruction on a lesser-included offense. ... Conversely, if it is rational for the jury to render a verdict of not guilty of the greater offense but guilty of the lesser, it is incumbent upon the judge to instruct the jury on the law related to the constituent offense if so requested by counsel. ... "It should be emphasized, however, that before a charge on ... [a lesser-included offense] is required, there thus must be some evidence, from whatever source, which would permit the jury to return such a verdict."

At the outset it must be noted that Simple Assault is a lesser included offense of Aggravated Assault and of Reckless Endangerment. Commonwealth v. Cavanaugh, 278 Pa.Super. 542 at 546, 420 A.2d 674 at 676 (1980). Thus the first element necessary for the requested charge is present here.

The simultaneous functioning of two of the basic precepts quoted above is the focus of our enquiry here, since it was a misapprehension of that interplay which spawned the error below. How is it consistent to state that "some evidence, from whatever source" will suffice to mandate a lesser included offense charge and, on the other hand, to make reference to the court's appraisal of the rationality of a jury's potential interpretation of those facts? The trial court here apparently concluded that, despite testimony to the contrary, it would not be rational for the jury to find, as a matter of fact, that a knife was not used by appellant. An affirmance here would require our holding that in a criminal jury trial the court can find certain evidence incredible, unbelievable, so that the jury does not have the opportunity to convict on a lesser charge--as it would if that evidence were believed by them. [3]

We do not so hold. The "rationality" principle does have a role in determining whether the charge on the lesser included offense should be given; but that principle, as properly applied, does not have primacy over the "some evidence" principle. A review of these two concepts will make this apparent.

These two principles are presented in a Circuit Court of Appeals Case. [4]

Two prerequisites [to denying a request for a lesser included offense instruction] seem vital: that there be no factual dispute and that a finding contrary to the only evidence on the issue would be irrational.

Driscoll v. U.S., 356 F.2d 324 at 327 (1st Cir., 1966) as quoted, with brackets added, in U.S. v. Comer, 421 F.2d 1149 at 1154 (D.C.Cir., 1970).

Some Evidence [5]

Our examination of the first of the two rules under consideration will start with a United States Supreme Court case. "A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense." Sansone v. U.S., 380 U.S. 343 at 350, 85 S.Ct. 1004 at 1009, 13 L.Ed.2d 882 at 888 (1965). It is on this disputed factual element of the greater offense that there must be some evidence. As has been noted above, there was testimony given in the instant trial that a knife was used by appellant and also testimony to the contrary. The finding of fact on this matter would be determinative as to whether appellant could be found guilty of aggravated assault or merely simple assault.

It is the presence of any quantum of evidence countering the prosecution's which will activate the need for the charge on the lesser included offense; "no matter how improbable" that evidence may be. Commonwealth v. Frank, 263 Pa.Super. 452 at 467, 398 A.2d 663 at 670 (1979) (Spaeth, J.). [6]

Other jurisdictions have come to the same conclusion.

It has been repeatedly written that if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense. And it does not matter how strongly the evidence points to guilt of the crime charged in the indictment, or how unreasonable it would be, as a court may appraise the weight of the evidence, to acquit of that crime and convict of the less serious.

People v. Mussenden, 308 N.Y. 558, 127 N.E.2d 551 at 553 (1955). It can be seen that, whatever rationality the trial court is to determine, it is not the jury's rationality in believing the evidence.

The Supreme Court of another sister state, Kansas, echoes New York's high court. "Whether the evidence [which] tended to support the lower degrees of the offense appears to the court to be weak and unsatisfactory; the accused is nevertheless entitled upon request to have the issue and the effect of the evidence submitted to the jury..."...

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