Commonwealth v. Wilks

• Decision Date: 06 October 1977
• Parties: COMMONWEALTH of Pennsylvania v. Cornelius WILKS, Appellant.
• Court: Pennsylvania Superior Court

378 A.2d 887

250 Pa.Super. 182

COMMONWEALTH of Pennsylvania v. Cornelius WILKS, Appellant.

Superior Court of Pennsylvania.

October 6, 1977

Argued Dec. 9, 1976.

George T. Guarnieri, Philadelphia, for appellant.

Deborah E. Glass, Asst. Dist. Atty., Philadelphia, with her F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for Com appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge:

Appellant raises the following contentions for our review. (1) The evidence is insufficient to convict appellant of simple assault; ^[1] (2) the evidence is insufficient to convict appellant of burglary; ^[2] (3) the proof at trial varied from the allegations in the information; (4) conviction of burglary and simple assault is impermissible (5) the substantive amendment of the information charging burglary was improper; (6) the court improperly permitted the amendment of the private criminal complaint to include the charges of burglary and indecent assault; (7) the private criminal complaint fails to contain a certification of probable cause; (8) the preliminary hearing was not held within 10 days of the preliminary arraignment; (9) trial counsel was ineffective for failing to raise the above issues, numbers 4-8, in post-verdict motions; (10) trial counsel was also ineffective for the following reasons: (a) failure to impeach the complainant adequately; (b) failure to present the testimony of police officers to corroborate appellant's testimony; (c) failure to introduce evidence of appellant's drugged or intoxicated condition at the time of the incident; and (11) the verdict is against the weight of the evidence and a new trial is required in the interests of justice. Although we find the evidence sufficient to convict appellant of burglary, we are required to remand the case for an evidentiary hearing on the issue of trial counsel's ineffectiveness. If, after an evidentiary hearing, the lower court finds that trial counsel was effective, then the case must be remanded for resentencing because we vacate the judgment of sentence on simple assault.

At trial, the complainant testified to the following. On March 2, 1976, at approximately 6 p. m., appellant went to the complainant's home, 5217 Chester Ave., Philadelphia. Because appellant and complainant were acquaintances, she permitted him to enter her apartment. The complainant testified that appellant began to push her around the apartment and, therefore, she telephoned the police. The police arrived and requested that appellant leave, and he did so. Approximately one-half hour after the departure of the police, the complainant, dressed in nightclothes, was watching television when she observed the appellant on the second floor roof of her apartment building. Appellant kicked in the window and leaped into the bedroom. The complainant stated that appellant called her a bitch and said that he wanted to kill her. The complainant fled from the apartment followed closely by appellant. Appellant caught complainant in front of her apartment building where he hit her, knocked her down and tore off her clothes. At this juncture, two passers-by intervened and appellant left the scene. Appellant testified that his first encounter with the complainant occurred essentially as described.

He then stated that after leaving her apartment he proceeded to a nearby bar where he was stabbed three times by an unnamed woman. He returned to the complainant's apartment covered with blood. The police, who were standing in the door of the complainant's apartment, transported appellant to a hospital where he remained for one week.

On March 4, 1976, the complainant filed a private criminal complaint which was approved by the district attorney on the same date. The court issued a summons which required that appellant appear for arraignment on March 19, 1976. On April 13, 1976, the court conducted a preliminary hearing and appellant was held for court. At the preliminary hearing, the court permitted the Commonwealth to amend the transcript to add the crimes of indecent assault ^[3] and burglary. On April 23, 1976, the district attorney brought three informations charging appellant with indecent assault, simple assault, and burglary. On May 28, 1976, after a non-jury trial, the court found appellant guilty of simple assault and burglary. ^[4] It sentenced appellant to a term of imprisonment of time served up to 23 months on the assault charge and to a consecutive, three year term on probation of the burglary charge. Following the denial of post-verdict motions, appellant filed the instant appeal.

Appellant first contends that the evidence is insufficient to convict him of simple assault. The Crimes Code, 18 Pa.C.S. § 2701, provides, in pertinent part, the following definition of simple assault:

"(a) A person is guilty of assault if he:

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

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

Bodily injury is defined as follows: "Impairment of physical condition or substantial pain." The Crimes Code, supra; 18 Pa.C.S. § 2301. Viewing the evidence in the light most favorable to the verdict winner, Commonwealth v. Lloyd, 226 Pa.Super. 445, 310 A.2d 358 (1973), we find sufficient evidence of simple assault. The statute clearly provides that a person can be convicted of assault if he attempts to cause or causes bodily injury. In the instant case, appellant jumped into the complainant's apartment, threatened to kill her, then chased, hit, and knocked her to the ground. She suffered injuries to her hands and feet. Based upon the threats and actual conduct of appellant in attempting to carry out his threat, it is obvious that appellant attempted to cause bodily injury to the complainant and, in fact, did injure her. We find that the evidence of simple assault is sufficient.

Appellant next argues that the evidence is insufficient to convict him of burglary. The Crimes Code provides:

"(a) A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." 18 Pa.C.S. § 3502. Again, we must view the evidence in the light most favorable to the verdict winner, Commonwealth v. Moore, 226 Pa.Super. 32, 311 A.2d 704 (1973). We can infer appellant's intent from his conduct and statements at the time of the incident. See Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975). In the instant case, appellant leaped through the complainant's bedroom window and threatened to kill her. It is clear that the lower court could properly find that appellant intended to commit a crime at the time that he broke into complainant's apartment. Subsequently, appellant, in fact, did commit the crime of simple assault. We find the evidence sufficient to convict appellant of burglary.

Appellant next contends that the allegations in the information charging burglary differed from the proof at trial. The information alleged that appellant entered the apartment with the intent to commit rape and aggravated assault. Appellant argues that, because he was convicted only of simple assault, the conviction of burglary must fall. The Crimes Code requires that to be guilty of burglary, one must enter with the intent to commit a crime; there is no requirement that the Commonwealth specify what crime a defendant intended to commit. Given the facts of the instant case, the Commonwealth properly particularized its information to apprise appellant of the crimes it accused him of intending to commit at the time of his unlawful entry. This specificity enabled appellant to prepare his defense to the charge and he suffered no prejudice thereby. Moreover, this argument must fall because the information charged aggravated assault and appellant was convicted of simple assault, a lesser included offense. ^[5] Therefore, appellant had notice of the offense charge. See, Commonwealth v. Boone, 450 Pa. 357, 301 A.2d 699 (1973). The court, as trier of fact, found that appellant intended to commit a crime at the time he entered the apartment. The fact that appellant was unable to consummate the crimes of aggravated assault or rape is not relevant to a finding of guilt on the burglary charge; all that is required is intent to commit a crime at the time of entry.

Appellant next argues that he cannot be convicted of both simple assault and burglary. ^[6] The Crimes Code provides:

"(d) A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitute a felony of the first or second degree." 18 Pa.C.S. § 3502. Simple assault is a misdemeanor of the second degree. Because appellant intended to commit an assault at the time he entered the apartment, he cannot be convicted of both assault and burglary. ^[7] Therefore, we must vacate the judgment of sentence on the assault conviction and under Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972), we must remand for resentencing on the burglary charge provided that appellant's counsel is found to have been effective.

Finally, we must address appellant's allegations of ineffective assistance of trial counsel for failing to raise several claims on post-verdict motions. However, because none of these contentions was raised in post-verdict motions, none of them is properly before us. In Commonwealth v Carter, 463 Pa. 310, 313, 314, 344 A.2d 846, 848 (1975),...