Commonwealth v. Repko

LALLY-GREEN, J.,

Concurring and Dissenting:

¶ 1 I agree with the majority’s disposition affirming Appellant’s conviction of aggravated assault against Officer Kuzo under 18 Pa.C.S.A. § 2702(a)(6). I also agree with the majority’s disposition reversing Appellant’s conviction of simple assault against George Hiller under 18 Pa. C.S.A. § 2701(a)(1) and affirming Appellant’s conviction of simple assault against Kathy Hiller ' under 18 Pa.C.S.A. § 2701(a)(1).

¶2 I dissent, however, to the majority’s conclusion that the evidence presented at trial was insufficient for the jury to conclude that all of the elements of aggravated assault under 18 Pa.C.S.A. § 2702(a)(4) were proven beyond a reasonable doubt with respect to Appellant’s actions against Melissa Bench.

¶ 3 The focus of inquiry in Appellant’s case is whether, under the circumstances, Appellant took a substantial step and demonstrated an intent to inflict bodily injury for purposes of § 2702(a)(4). Appellant’s words and conduct are to be examined to determine whether the requisite intent existed under § 2702(a)(4). See, e.g., Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 183 (1993), appeal denied, 535 Pa. 657, 634 A.2d 220 (1993).

¶ 4 Review of the record reflects the following. Melissa Bench testified that she accompanied Appellant’s girlfriend to Appellant’s home on the night in question. N.T., 8/9-10/00, at 16-18. Bench testified that when she arrived, Appellant pointed a gun at her and told her that he would shoot her in the head if she did not get off his property. Id. at 18, 634 A.2d 220. Bench told Appellant that was fine as she did not want to go on his property. Id. She then walked to the road. Id. Bench was 20-25 feet away from Appellant when he pointed the gun at her. Id. at 19, 634 A.2d 220. Bench stated that Appellant spoke to her in a threatening manner. N.T., 8/9-10/00, at 20. Bench testified that she was scared when Appellant threatened her. Id. Bench further testified that when she came back to get into the car, Appellant again pointed the gun at her and told her he was going to shoot her in the head and that she was nothing but a “bitch.” N.T., 8/9-10/00, at 23.

¶ 5 Viewing the evidence in the light most favorable to the Commonwealth, I would conclude that sufficient evidence existed to support Appellant’s conviction under § 2702(a)(4). By threatening and pointing a gun at Melissa Bench from a distance of 25 feet, Appellant’s words and conduct represented an intentional action which constituted a substantial or significant step toward perpetrating bodily injury with a deadly weapon upon Bench. Sanders. I would affirm Appellant’s con*559viction of aggravated assault of Melissa Bench.

¶ 6 On the basis of the foregoing, I respectfully dissent.