Commonwealth v. Sutley
| Decision Date | 06 November 1969 |
| Docket Number | 74 |
| Citation | 48 Pa. D. & C.2d 279 |
| Parties | Commonwealth v. Sutley |
| Court | Pennsylvania Commonwealth Court |
September sessions, 1969.
Edward M. Bell, for Commonwealth.
Warren R. Keck Jr., for defendant.
Motions for new trial and in arrest of judgment.
This matter comes before this court upon a motion for a new trial and a motion in arrest of judgment after conviction of defendant for wantonly pointing a firearm at another person. Defendant contends that the court erred in instructing the jury that defendant need only point a deadly weapon in the direction of a person in order to be guilty of pointing a deadly weapon and in refusing to direct a verdict for defendant because of his alleged excessive intoxication at the time of the occurrence.
The bizarre facts which give rise to this crime commenced at about 11 p.m. on the night of July 7, 1969, when defendant appeared at a residence owned by his brother, Marion Sutley, and his grandmother, Marie Palmer, and knocked on the back-kitchen window. Sometime previously he had been directed out of the home and told that he could no longer reside there. The brother was seated at the kitchen table eating a sandwich. Upon opening the back door, he recognized defendant who wanted to know if he could stay there. The answer was no. Defendant replied, " If you don't want any trouble, you better open the door." His brother answered, " I don't want any trouble and I closed the door." He also locked it. He proceeded five or six feet back across the kitchen when he heard a crash behind him. In turning, he saw an arm coming through the kitchen door window. Being afraid of his brother, he started to run towards his room to get his large German shepherd police dog, but as he approached it he found that defendant had already gotten into the kitchen. He then ran out the front door to a neighbor and called the police. Defendant locked the door behind him.
About 15 or 20 minutes after defendant broke the glass and entered the home, the police arrived. During the entry, defendant cut himself severely which eventually required about 50 stitches. Prior to the arrival of the police, defendant secured his brother's 20-gauge Sears model pump gun. Chief Moldovan assigned Officer Robert Davis, of the Wheatland Police force, to stand by a front window and watch as he went to the front door. This door is of wooden frame with a window approximately eight by 10 inches in the center top at about eye level. The chief knocked at the door and found that it was locked. At about this time, defendant was coming from the kitchen to the living room with a butcher knife between his teeth and a shotgun in his hand. He was bleeding badly. The chief attempted to talk to defendant through the window in the door. Defendant responded, " I'll get you this time, you fat bastard, and throwed the knife in my direction." The chief ducked. Upon raising again to look through the window, defendant pulled up the shotgun and pointed it at the door, but without sighting down the barrel. It was, however, firmly under his arm with barrel pointing at the door. The chief was asked whether it was aimed and he answered, " Right at me." The Chief tried to talk him into putting the gun down and opening the door, but, instead, defendant walked into the bedroom, turned on the high-fi player very loud and laid on the bed. At the slightest sound, he would jump up with the gun in his hand.
Finally, the police were able to coax the police dog out of the home and the chief and his officer entered. As they came into the bedroom, defendant was lying with his feet towards the door and gun next to him. Upon arriving approximately four feet from defendant, he opened his eyes and moved towards the gun. The chief jumped on the gun and secured it.
The chief testified that defendant was four or five feet from the front wall of the home at the time defendant pointed the shotgun at him. Officer Davis testified that defendant was a foot and a half or two feet from the wall at the time of the pointing. Therefore, one of the contentions raised by defendant in the trial through his attorney was that it would be impossible under Officer Davis's version for defendant to have actually shot and hit the chief because of the necessity of penetrating through the door and possibly a portion of the wall for the pellets to have reached him, assuming that the gun had been loaded. The court stated to the jury in its charge:
It is to be noted that defendant did not take a specific exception to this phase of the charge. Rather, he took only a general exception and an exception to the denial of his point for binding instruction. Counsel for defendant further stated, " . . . that is the extent of our exception." Defendant did not take the stand on his own behalf nor did he call any witnesses.
Where only a general exception is taken to a charge and the point contested by a motion for new trial was not brought to the court's attention during the charge, the matter will not be considered unless it was a fundamental error: Commonwealth v. Smith, 374 Pa. 220, 97 A.2d 25 (1953). Commonwealth v. Tonty, 178 Pa.Super 447, 115 A.2d 833, cert. denied 76 S.Ct. 649, 350 U.S. 1005, 100 L.Ed. 868 (1955).
Despite the failure of defendant's counsel to make specific objection to the points now raised, and even though the alleged error would not begin to qualify as basic and fundamental because of the liberality of the courts to grant post-conviction relief for all matters which have not been previously decided by the trial court, the contentions of defendant are considered as if a proper exception had been taken.
The statute reads: " Whoever playfully or wantonly points or discharges a gun, pistol or other firearm at any other person, is guilty of a misdemeanor . . ." : The Penal Code of June 24, 1939, P. L. 872, sec. 716, 18 PS § 4716. The contention raised by defendant that the court erred in instructing the jury that the Commonwealth did 'not have to prove beyond a reasonable doubt that the chief would have, in fact, been struck by the pellet if the shotgun were fired is without judicial support by any case in Pennsylvania. It has, however, been held elsewhere that, " . . . it was not necessary to prove that the pistol was loaded and that there was a present ability to commit an assault" : Underhill v. State, 185 Ind. 587, 591, 114 N.E. 88, 89 (1916). Further:
: State v. Gam, 24 Del. 25, 74 A. 7 (1909).
Neither present ability to commit an assault nor present ability to see or harm the intended victim is an element of the offense: Lang v. State, 95 Ind. 114, 86 C.J. 64, note 13. It would appear that pointing a deadly weapon is the least of the various charges which can arise from the use of such a weapon toward or against the person or body of another. Certainly, if the gun had been loaded and discharged with injury having been inflicted upon the chief of police, defendant could have been charged with assault and battery, [1] aggravated assault and battery, [2] assault with intent to kill [3] and assault with intent to maim. [4] Certainly, if defendant was convicted of any of these potential charges, he would contend that the charge of pointing a deadly weapon merged in the more serious charge and, therefore, he could not be sentenced on it similarly to that successfully contended in Commonwealth v. Gilliam, 89 D. & C. 354 (1954). [5] In the charge, this court...
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