concurring and dissenting:
I concur in Judge VAN der VOORT’s conclusion that the conviction for aggravated assault cannot stand: The Commonwealth stated by its bill of particulars that it would prove that “[djefendant, with the use of a knife, stabbed the victim . . . .” This statement limited the Commonwealth’s proof. The trial judge, therefore, was obliged to tell the jury that it could not convict appellant unless it found that he had stabbed the victim. Instead the judge told the jury that it could convict appellant even if it found that someone else — an accomplice — had stabbed the victim.
However, I dissent from Judge VAN der VOORT’s conclusion that the remedy for this error is to set aside the conviction of aggravated assault and remand for imposition *168of sentence for simple assault. This remedy is appropriate only when we know that the defendant has committed simple assault. In other words: aggravated assault is alleged; assault is proved; but serious injury is not proved. See Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978); cf. Commonwealth v. Scott, 246 Pa.Super. 58, 369 A.2d 809 (1976) (fact that Commonwealth failed to prove defendant robbed victim does not necessarily mean that defendant should be discharged since he may still be guilty of theft). This is not such a case. Here, the jury might have found that appellant committed assault; that is, the evidence was sufficient to support a finding that appellant had the knife and stabbed the victim. However, the jury also might have found that someone else committed assault, for the evidence was also sufficient to support a finding that someone else had the knife and stabbed the victim. Thus, the issue here is not whether the evidence was sufficient to show that defendant’s proved assault was aggravated rather than only simple, but rather whether it was sufficient to show that the defendant committed any assault at all. Plainly, the evidence was not sufficient. Given the lower court’s erroneous instructions, the jury was free to find, and might have found, either that appellant did stab, or that he did not stab (but was guilty anyway because his accomplice did). It is impossible to tell from the evidence which of these possible findings the jury made. Accordingly the evidence was insufficient. Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Jacobs, 247 Pa.Super. 373, 372 A.2d 873 (1977); Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300 (1973).*
The judgment of sentence should be vacated and the case remanded for a new trial, consistent with this opinion.
Indeed, there was a third possible finding, namely, that appellant was guilty of simple assault because he attacked the victim but without using a knife. This possibility does not affect the analysis just stated, however, for it does not exclude the possibility that the jury found that appellant never assaulted the victim at all, with or without a knife, but only found him guilty because of the court’s erroneous instruction.