Commonwealth v. Fortune

DISSENTING OPINION BY

FORD ELLIOTT, P.J.E.:

I must respectfully dissent from the Majority’s affirmance of appellant’s aggravated assault conviction. I believe appellant was properly convicted of robbery and should stand convicted of the crime of simple assault.

Appellant’s actions in car-jacking the victim are truly reprehensible and subject to severe punishment. He held a gun to the victim’s head and demanded her car keys or he would “blow her head off.” There can be no doubt that the victim was placed in fear of imminent serious bodily injury. Without doubt, appellant’s actions constitute the crime of robbery, a first degree felony. For obvious reasons, appellant does not challenge his robbery conviction on appeal for which he received 5-10 years’ imprisonment. Rather, appellant asks this court to determine if the evidence was sufficient to find him guilty of the additional crime of aggravated assault for which he received a concurrent term of 6-12 years. Appellant asserts that his actions constituted a simple assault.

The distinction between the crimes of simple and aggravated assault has vexed our appellate courts for years, and as addressed by the Majority, the determination often rests on a laborious examination of the facts of any given case. One commentator has remarked the root of this consternation may be in the nomenclature.1 *988The crime of simple assault is anything but simple. It is a serious crime, which either causes bodily injury to another or attempts to cause by physical menace to put another in fear of imminent serious bodily injury. Such an assault is punishable by a sentence of up to two years. Aggravated assault on the other hand, for the purposes of the facts of this case, requires a showing that appellant actually attempted to cause serious bodily injury to another.

It has long been the law in this Commonwealth that the mere pointing of a gun at another in a threatening manner, without more, does not constitute aggravated assault but rather simple assault directed at putting another in fear of imminent serious bodily injury. Commonwealth v. Alford, 880 A.2d 666 (Pa.Super.2005), appeal denied, 586 Pa. 720, 890 A.2d 1055 (2005) (merely menacing another with a gun, without discharging a weapon or without some other indicia manifesting intent, is insufficient to demonstrate an intent to inflict serious bodily harm; Alford’s words and actions constituted a conditional threat), citing Commonwealth v. Savage, 275 Pa.Super. 96, 418 A.2d 629, 632 (1980) (“pointing a gun at Mr. Gould ... in ... a threat to cause serious bodily injury, could constitute a simple assault as an ‘attempt by physical menace to put another in fear of imminent serious bodily injury.’ ... It could not, however, constitute an aggravated assault.”).

There is little question that had appellant fired the gun at the victim, an aggravated assault would have been the result. However, that is not what happened here. To constitute an attempt under the statute, evidence must be presented that appellant had the specific intent to cause serious bodily injury and took a substantial step toward perpetrating serious bodily injury on the victim. The specific intent element of aggravated assault requires that a person presently intended to cause the harm that would occur if he fired the gun. “Where the defendant is charged with aggravated assault based upon his attempt to injure another person, the Commonwealth is required to prove that he acted with a specific intent to cause such injury.” Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183, 186 (1993). As discussed by the Majority, our Supreme Court has instructed that under the facts of a case such as this, we must look to the totality of the surrounding circumstances to establish if the defendant had that specific intent. See Commonwealth v. Matthew, 589 Pa. 487, 492, 909 A.2d 1254, 1257 (2006); Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, 889 (1978).

The Majority appropriately relies upon the decision in Matthew that affirmed the result of this court’s en banc decision. However, I find the facts and totality of the circumstances of the Matthew case to be far more egregious than this case. In Matthew, the victims were presented with a deranged gun-wielding individual making numerous threats and taking substantial steps in an attempt, for no other reason than, to cause them harm.

*989With respect to appellant, the Superior Court properly found there was sufficient evidence to find appellant attempted to inflict serious bodily injury upon Wachter, and intended to do so. Appellant placed a loaded gun against Wachter’s throat, repeatedly pointed it at him, and threatened to kill him seven to ten times.

Matthew, supra at 494, 909 A.2d at 1258.

It is also worth noting that this court’s en banc decision in Matthew, which this writer joined, specifically overruled Commonwealth v. Mayo, 272 Pa.Super. 115, 414 A.2d 696 (1979), and Commonwealth v. Repko, 817 A.2d 549 (Pa.Super.2003), as creating an “ample opportunity” test. This court decided that Mayo and Repko improperly relied on the fact that the defendant failed to follow through on his threats as determinative of whether an aggravated assault occurred. Commonwealth v. Matthews, 870 A.2d 924, 932 (Pa.Super.2005) (en banc ).2 The Supreme Court in Matthew specifically disapproved of this analysis, finding that both Mayo and Repko properly applied a totality of the circumstances approach to the facts in each case as required by Alexander, supra. The failure of the defendant to follow through on the harm threatened was but one factor for consideration. Matthew, supra at 492-493, 909 A.2d at 1258.
The Superior Court incorrectly concluded Mayo and [Commonwealth v. Gruff, 822 A.2d 773 (Pa.Super.2003) ], illustrate “two distinct and irreconcilable approaches” towards interpreting what is required to be proven for aggravated assault. Matthews, at 930. In Mayo, the Superior Court held there was insufficient evidence for the fact-finder to convict the defendant of aggravated as-
sáult under § 2702(a)(4) where the defendant placed a knife at the victim’s throat, suggested he could kill her with it, and inflicted light scratches on the victim’s, chest that did not draw blood. Mayo, at 698, 703-04. Mayo referred to Alexander, quoting its multi-factor analysis. Id., at 703, 383 A.2d 887 (quoting Alexander, at 889). Mayo determined that while “[the defendant] was certainly more physically powerful than his victim, and at least suggested the possibility of her death, we view the crucial fact to be his failure to pursue his obvious opportunity to inflict considerable pain or injury on [the victim].” Id. Mayo found the defendant’s actions “all point decisively to an intent not to inflict bodily injury....” Id.
Mayo followed the totality of circumstances test set forth in Alexander. Mayo did not hold the Commonwealth can never establish a defendant intended to inflict bodily injury if he had ample opportunity to inflict the injury, but did not inflict it. Mayo only found the defendant’s decision not to inflict the bodily injury was the “crucial fact” in that case.[Footnote 7] Had Mayo stated such a sweeping pronouncement, it would have been incorrect, and insofar as it may be interpreted as doing so, it is disapproved.

*990Matthew, 589 Pa. at 492-494, 909 A.2d at 1258-1259 (footnote 6 omitted).

Returning to the facts of this case, clearly appellant’s intent was to rob the victim of her car. His pointing the gun at her and threatening to shoot her if she did not relinquish her keys were directed at stealing her car, not at specifically intending to cause her serious bodily injury. When she gave up her keys, he left with the car, which was his purpose all along. Without doubt, appellant put the victim in fear of imminent serious bodily injury, and perpetrated an assault under Section 2701(a)(3).3 There is no evidence to suggest that appellant’s intent was anything other than to take the victim’s vehicle. His words and actions did not evidence a substantial step toward causing serious bodily injury. At most, appellant’s words and actions constituted a conditional threat, which is insufficient to prove aggravated assault. See Savage, 418 A.2d at 632, citing Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980). Under the totality of the circumstances of this case, I cannot distinguish this case from the analysis in Mayo, Repko, Bryant, Savage, or Alford and would find that the evidence rises no higher than simple assault during the perpetration of a robbery.

Finally, the Majority relies on the fact that the jury was certainly free to infer the intent of appellant from his pointing the gun at the middle of the victim’s forehead during the carjacking and that he intended to carry out his threat but did not do so for a variety of reasons. While it is clearly the fact-finder’s province to assess the evidence and draw proper inferences therefrom, we do not defer to the jury when the evidence is insufficient as a matter of law.

In reviewing a sufficiency challenge, a court determines, whether the evidence, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In this sufficiency challenge we are asked to determine what constitutes aggravated assault under 18 Pa.C.S. § 2702(a)(1). Thus, this is a question of law. For questions of law, our scope of review is plenary and our standard of review is de novo.

Matthew, supra at 491, 909 A.2d at 1256-1257 (citations omitted).

For all of the above reasons, I respectfully dissent to the Majority’s affirmance of the aggravated assault charge under the totality of the facts

. The author has always believed that the nomenclature used in these sections is the true root of the problem. An “assault” that is "simple” seems almost benign, a mere annoyance, akin to being bumped by a boisterous fellow customer waiting with us in a check out line. The use of fists or weapons, accompanied and preceded by harsh words and vile epithets, is a circumstance that every reasonably genteel person would see as an “aggravated” one, regardless of the outcome.

In truth, of course, a “simple” assault is a serious matter. A victim suffering "impair*988ment of physical condition or substantial pain” is the victim of more than an annoying jostling, and a defendant serving a 1-2 year sentence must realize that his offense was hardly "simple.”
Perhaps it is that aggravated assault penalties are so disparate and draconian when compared to simple assault that we tend to downplay the significance of the simple assault charge. There is a world of difference between the M-2 simple assault and the F-1 version of § 2702(a)(1). Still, had only the Legislature used "First Degree Assault” and
"Second Degree Assault,” I am reasonably sure this would have been less of a problem.

Bruce A. Antkowiak, Five Hot Topics: Issues of Pending Concern in Pennsylvania’s Appellate Courts, 42 Duq.L.Rev. 411 (2004), n. 66.

. The Superior Court's opinion refers to appellant as “Matthews.” The Supreme Court noted that their review of the record, including appellant’s brief, reveals appellant's last name is "Matthew.” Matthew, 589 Pa. at 490 n. 1, 909 A.2d at 1256 n. 1.

. The Superior Court described [Repko,'] (verbal and physical action of pointing gun at victim insufficient to establish aggravated assault), as endorsing the Mayo “ample opportunity” test. Matthews, at 931. Repko did not adopt an ample opportunity test, but found the factual scenario before it was more akin to Mayo than other case law. Repko, at 556

. As set forth in the Official Comment to § 2701, "Subsection (a)(3) covers the situation when the actor intends to frighten even though he does not intend, or lacks ability, to commit a battery.” and circumstances of this case.