Commonwealth v. Sirianni

Decision Date16 April 1981
Citation428 A.2d 629,286 Pa.Super. 176
PartiesCOMMONWEALTH of Pennsylvania, v. Rosemary SIRIANNI, Appellant.
CourtPennsylvania Superior Court

Argued Nov. 13, 1979.

Diane Barr Quinlan, Pittsburgh, for appellant.

Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for Commonwealth appellee.

Before CERCONE, President Judge, and MONTGOMERY and LIPEZ, JJ.

CERCONE President Judge:

This is an appeal from a conviction in the Court of Common Pleas of Allegheny County for aggravated assault. Crimes Code, 18 Pa.C.S. § 2702(a)(1). Appellant, Ms. Sirianni, contends inter alia that the court below erred in refusing her defense counsel's request to instruct the jury on simple assault 18 Pa.C.S. § 2701(a)(1), which is a lesser included offense of aggravated assault with which Ms. Sirianni was charged and convicted, and that she was denied her constitutional right to the effective assistance of counsel. [1] For the reasons hereinafter discussed, we affirm the decision of the lower court with respect to the jury instructions, but vacate and remand the case for an evidentiary hearing to determine the ineffectiveness issue.

Appellant, Ms. Sirianni, and the victim, Ms. McKelvy, were social acquaintances who had known each other for approximately two years. About six weeks prior to the incident in question, Ms. Sirianni and Ms. McKelvy attended the wedding reception of a mutual friend at which time they had an argument concerning their personal relationships with other people who were also in attendance at the wedding. The following day Ms. Sirianni telephoned the victim and told her that the next time she saw her, Ms. McKelvy would be dead. The victim did not see or hear from Ms. Sirianni again until May 25, 1978, the night of the crime. On that night, Ms. McKelvy was returning home at about 2:30 a. m. when she noticed another car pull up behind her. When Ms. McKelvy got out of her car, Ms. Sirianni did likewise and approached the victim expressing a desire to talk to her. Ms. McKelvy told Ms. Sirianni that she did not want to talk to her. At this point Ms. McKelvy tried to get back into her car but Ms. Sirianni followed her around the car until they were only several feet apart. Ms. Sirianni then pulled out a gun and fired point-blank at Ms. McKelvy striking her in the right foreman. The victim fell to the ground and Ms. Sirianni fired another shot barely missing the victim and striking the asphalt only inches from the victim's hand which she had held up to her head. Ms. Sirianni then went to her car and drove away, whereupon Ms. McKelvy received emergency medical treatment for the two lacerations on her right forearm.

In connection with this shooting Ms. Sirianni was charged with criminal attempt (attempted murder) and aggravated assault. At trial, the judge refused defense counsel's request to charge the jury on simple assault in addition to the other crimes charged. The jury then found Ms. Sirianni guilty of aggravated assault, but not guilty of criminal attempt. Ms. Sirianni subsequently was sentenced to a term of two to ten years at the Community Treatment Center in order to treat her psychological problems. This appeal follows.

Concerning Ms. Sirianni's first allegation of error, we note that a defendant is entitled to a jury instruction on a lesser included offense upon his or her request only if there is evidence in the record "from whatever source," which makes it "rational for the jury to render a verdict of not guilty of the greater offense but guilty of the lesser." Commonwealth v. Wilds, 240 Pa.Super. 278, 287-88, 362 A.2d 273, 278 (1976). See also Commonwealth v. White, 490 Pa. 179, 183, 415 A.2d 399, 402 (1980); Commonwealth v. Williams, 490 Pa. 187, 190, 415 A.2d 403, 404 (1980). In the information filed against Ms. Sirianni, the District Attorney charged her with aggravated assault as well as attempted murder. The assault charge upon which she was convicted reads as follows:

The District Attorney of Allegheny County by this information charges that on (or about) May 25, 1978 in the said County of Allegheny Rosemary Sirianni hereinafter called actor, did commit the crime or crimes indicated herein; that is:

27021A Count 2 AGGRAVATED ASSAULT Felony 2

The actor attempted to cause serious bodily injury to Donna McKelvy under circumstances manifesting extreme indifference to the value of human life, that is to say the actor shot Donna McKelvy in the right forearm with a gun, in violation of Section 2702(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 2702(a)(1).

As previously stated, the trial judge refused defense counsel's request to charge the jury on simple assault as a lesser included offense of aggravated assault. Section 2701(a) of the Crimes Code defines simple assault as follows:

A person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

(2) negligently causes bodily injury to another with a deadly weapon; or

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

It is evident from the opinion of the court below that the trial judge only considered whether appellant was entitled to a simple assault instruction under subsection (a)(2). Since this subsection is the only part of the entire section on simple assault which mentions use of a deadly weapon, the trial judge reasoned that the only way simple assault could have been committed in this case which involved the use of a deadly weapon, a gun, was through section 2701(a)(2) alone. Thus, he did not consider whether or not Ms. Sirianni was entitled to a lesser included instruction on simple assault under sections 2701(a)(1) & (3) because those subsections, unlike section 2701(a)(2), did not mention the use of a deadly weapon. This was error. Simply because that particular subsection of the statute mentions a factual scenario involving the use of a deadly weapon, the bare fact that a deadly weapon was used in the case under consideration does not necessarily preclude the application of other subsections of that same statute. These subsections set forth offenses which, perhaps, in all other respects might be applicable to the facts being considered. So, although the trial court correctly concluded that Ms. Sirianni was not entitled to an instruction under section 2701(a)(2) because there was no evidence in the record that the negligent use of a deadly weapon caused Ms. McKelvy's bodily injuries, [2] we must nevertheless agree with Ms. Sirianni that the trial court should have carried the analysis further to determine whether or not she was entitled to a lesser included offense instruction under subsection (a)(1). [3] Having so extended the purview of our inquiry, we conclude that Ms. Sirianni's victory is but a hollow one, for we now hold that she was not entitled to an instruction under section 2701(a)(1), either.

Recognizing initially that defense counsel for Ms. Sirianni requested a lesser included charge, we come to the next step of deciding whether or not simple assault, defined in section 2701(a)(1) as attempting to cause "bodily injury" is, in fact, a lesser included offense of aggravated assault, defined in section 2702(a)(1) as attempting to cause "serious bodily injury." The "serious bodily injury" required to prove aggravated assault is defined as "(b)odily 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." 18 Pa.C.S. § 2301. On the other hand, the "bodily injury" required to prove simple assault is defined as "(i)mpairment of physical condition or substantial pain." A comparison of the above-quoted sections indicates that the definition of "serious bodily injury" contains "bodily injury" within it. In Commonwealth v. Wilds, supra, this court sitting en banc stated that "an offense is a lesser included offense if each and every element of the lesser offense is necessarily an element of the greater." 240 Pa.Super. at 287, 362 A.2d at 278. See also Commonwealth v. Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979); Commonwealth v. Farmer, 244 Pa.Super. 334, 368 A.2d 748 (1976). This test has been met here. "Simple assault" as an attempt to cause mere bodily injury [4] is, therefore, a lesser included offense of aggravated assault which is an attempt to cause serious bodily injury. [5]

Having already determined that a charge on simple assault was requested, and that the particular subsections involved indicate we are dealing with a lesser included offense, we are left with the final question of whether or not there is evidence in the record which would permit the jury to rationally find Ms. Sirianni guilty of the lesser included offense, simple assault, but not guilty of the greater offense, aggravated assault. It is here that we part company with Ms. Sirianni's contention. [6] On the facts of this case, we find that there is no evidence in the record from which a jury could reasonably conclude that appellant intended to cause bodily injury, but not serious bodily injury. The record indicates use of a firearm at point-blank range by a person who had been secretively following the victim in the early morning hours prior to the confrontation, and who had previously threatened the victim's life. One shot hit the victim in the arm, while the other missed the victim's head only by inches. This is all uncontradicted evidence of record indicating an intent to cause serious bodily injury.

The only evidence in the record from which it can possibly be asserted that a jury could rationally conclude that Ms. Sirianni should be acquitted of aggravated assault and convicted of simple...

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