Commonwealth v. AckermanCommonwealth v. Ackerman
- Reporters:
- , ,
- Before:
- Price
Opinion by
Price J.,
On August 5, 1974, the lower court, sitting without a jury, adjudged defendant-appellant Lorenz F. Ackerman guilty of felonious restraint,
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simple assault,
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and
The facts, read in a light most favorable to the verdict-winner, Commonwealth v. Porter, 229 Pa. Superior Ct. 314, 323 A.2d 128 (1974), are as follows: On the afternoon of December 7, 1973, appellant and his co-defendant, Angelo Carmello, were piloting a forty foot tractor-trailer on the Roosevelt Boulevard Extension of the Schuylkill Expresswаy. When they came to the vicinity of the intersection of Broad Street and Roosevelt Boulevard, their vehicle was struck by a bottle hurled by William Rawl. Rawl had been walking home from school with his 13 year-old friend, Willy McDaniel.
The missile hit the truck just below the windshield, causing some damage. The two men stopped the truck, alighted, and pursued the youths. William Rawl managed to escape, but Willy McDaniеl was not so fortunate.. Carmello caught McDaniel and escorted him back to the truck where appellant, in a fit of anger, threw him to the earth. McDaniel testified that appellаnt placed his knee on McDaniel’s chest and hit him on the cheek, knocking out one of his teeth. They then loaded the youth into the cab of the truck, telling him they were taking him to a policе station.
The two men, with their captive, proceeded south, purposely driving slowly in order to attract the attention of the police. This tactic failed, however, and they followed the Schuylkill Expressway to the King of Prussia exit. From there, they followed Route 411 to the Lower Providence Township Police Station, where the boy was placed in the custody of Sergeant Joseph Nagle of the Lower Providence Township Police Department. The twenty-five mile journey had lasted one hour.
Sergeant Nagle testified that when he first saw Willy
Appellant and Carmello were subsequently indicted for kidnapping, kidnapping a person under the age of 14 years, criminal conspiracy, and simple assault. Appellant was found not guilty of kidnapping a person under the age of 14 years. He was found guilty of simple assault and criminal conspiracy, and he was convicted of unlawful restraint under the kidnapping indictment.
Appellant’s first contention is that his jury trial waiver did not meet the requirements of Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). However, appellant failed to bring this issue to the attention of the lower court in his post-trial motions. Therefore, it was waived. Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975).
Appellant’s second contention is that is was error for the lower court to convict him of unlawful restraint because he was not indicted for that crime. Specifically, appеllant contends that unlawful restraint is not a lesser included offense of kidnapping.
The Supreme Court of Pennsylvania has held that on an indictment charging a defendant with a particular offense, he may be convicted of a lesser offense included in the particular offense charged. Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687, cert. denied, 364 U.S. 886 (1960). The test for whether an offense is lesser than and included in another, is whether the greater offense “necessarily involves” the lesser. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). 4
“A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions: ...
(3) To inflict bodily injury on or to terrorize the victim or another.”
Under
Appellant contends that unlawful restraint is not a lesser included offense of kidnapping because the seriousness of the bodily injury threatened is an element of unlawful restraint but not an element of kidnapping. Therefore, an essential element of the lesser crime is not аn element of the greater and commission of the greater does not “necessarily involve” commission of the lesser. Appellant is correct.
On the other hand, to prove kidnapping, the Commonwealth need only prove that bodily injury was intended. Serious bodily injury is not an element of the crime of kidnapping. While we might agree that intent to inflict bodily injury necessarily involves an exposure of the victim to bodily injury, we are unablе to agree that such an intent necessarily involves exposure of the victim to serious bodily injury. The Commonwealth argues that the narrow concept of serious bodily injury is contained within the broadеr concept of bodily injury. Thus unlawful restraint can be said to be included within kidnapping. This argument is misdirected. Proof of bodily injury is not necessarily proof of serious bodily injury. Therefore, proof of kidnapping is not necessarily proof of unlawful restraint, and unlawful restraint cannot be said to be necessarily included within the crime of kidnapping.
We are not unmindful of
Commonwealth v. Nace, supra,
in which it was held that joy-riding is a lesser included offensе of larceny of a motor vehicle, even though there are conceivable fact situations under which a person could be guilty of larceny of a motor vehicle and not guilty of joy-riding. However, in that case this court noted that such fact situations would be rare. That is not true of this case. Suffice it to say that we can conceive of
Appellant’s third allegation of error concerns the fact that the conspiracy indictment alleged as overt acts that appellant committed kidnapping and aggravated assault. Yet, appellant was found not guilty of kidnapping and he was not indicted for aggravаted assault. Therefore, appellant contends, because the overt acts alleged in the indictment were not proved, he could not be convicted of conspiraсy.
The purpose of an indictment is to inform the defendant of the charges against him and to protect him against further prosecution for the same cause. See, Commonwealth v. Brown, 229 Pa. Superior Ct. 67, 323 A.2d 845 (1974). In this case, the indictment chаrged appellant with committing criminal conspiracy and it was for that crime that he was convicted. We regard the fact that the indictment alleged kidnapping and aggravated assаult as overt acts, while appellant actually committed simple assault, as a matter of form. If it is error, then it is certainly a harmless one, for technical defects in the indictment can be amended even after the verdict. Commonwealth v. Syren, 150 Pa. Superior Ct. 32, 27 A.2d 504 (1942). See also, Commonwealth v. Brown, supra.
Moreover, we note a fundamental flaw in appellant’s argument. He-contends that the overt acts alleged in the indictment were not prоved. That contention is incorrect. The evidence, viewed in the light most favorable to the verdict-winner, was sufficient beyond a reasonable doubt to prove that appellant сommitted aggravated assault.
See, Commonwealth v. Alexander,
237 Pa. Superior Ct. 111, 346 A.2d 319 (1975).
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Appellant was not indicted for aggravated assault, and, therefore, he could not be
The judgments of sentence on the convictions for criminal conspiracy and simple assault are affirmed. The judgment оf sentence on the conviction for unlawful restraint is reversed.
Hoffman and Cercone, JJ., concur in the result.
Notes
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. This test is similar to that of
. The record reveals that Willy McDaniel, in addition to losing: a tooth, suffered bruises to the face and head, acute lumbosacral sprain, and contusions of the anterior chest wall.
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