Commonwealth v. Bracey

End, 12/17/99, Edward G. at 11:6-9. More Mrs. Cresswell was a licensee rather than importantly, End verified that he had nev- an invitee premises while she was on End’s experienced er any problems purposes related to the for the reading his water me- (2) ter, prob- window well or been notified of any that End did not breach the by any party. lems third duty Id. at 18:17-24. of care he owed toward licensees such Additionally, End stated that he Finding has as Mrs. Cresswell. no abuse of pruned and maintained shrubbery by discretion or error of law the trial around the every court, window well fall since affirm granting we the court’s order 1963, and that nothing differently he did summary judgment in favor of End. any time relevant to this case. Id. at 24. ¶ 15 Order affirmed. evidence, Based the foregoing we ample support find for the trial court’s

conclusion that End neither knew nor had any

reason to know of condition on his

property involving an unreasonable risk of

harm to licensees such as Mrs. Cresswell.3 Pennsylvania, COMMONWEALTH of Appellee,

IV. CONCLUSION have, We accordance with our Avery BRACEY, Appellant. Everette review, standard of viewed the record in light this matter most favorable to Superior Pennsylvania. Court of Cresswells, party who stood as the 14, April Submitted 2003. opposing summary judgment below. Even Filed Aug. standard, under that deferential it is clear to us that End was entitled judgment

a matter of properly law. The trial court

determined, (1) law, as a matter of 342(a) findings respect 3. Our to section See also Farm, Inc., liability. Hughes Springs sufficient to relieve End of We v. Seven note, however, purposes (2000) (a that for of section possessor of land 342(c), appears it Mrs. Cresswell knew of the duty protect against owes an invitee no condition and the Here, risk involved. Evidence dangers). obvious and avoidable evi- revealed that Mrs. Cresswell had entered dence established that the meter was located property End’s to read the meter on several above the window well. weAs indicated prior day occasions of the accident. above, prop- Mrs. Cresswell had been on this unequivocally End also testified that he main- erty particular to read this meter on several shrubbery surrounding tained the the window prior day occasions of the accident. every year, including well in the same manner any landscaping End never notified shrubbery reading made his meter difficult dangerous since the meter was moved to Similarly, even if Mrs. Cresswell had been its location above the window well. End tes- premis- determined to be an invitee on End’s es, shrubbery that he tified maintained sur- inju- End would still not be her liable for rounding particular year the well possessor ries. "A of land is not liable to his years. previous same manner he had in physical invitees for harm caused to them Thus, appears pre- any activity it window well or condition on the land whose them, danger. danger sented an obvious and avoidable is known or obvious to unless protect was not Mrs. possessor anticipate End Cress- should the harm de- Thus, danger. spite knowledge well from this obvious there or obviousness.” Re- (Second) 343(A), liability § statement of Torts would be no on behalf of End even if cited Fitterer, approval in Carrender v. Mrs. Cresswell were deemed an invitee. McEWEN, BY

OPINION P.J.E.: ¶ Appellant, Avery Bracey, Everette brings appeal from the judgment of sentence to serve a total imprison- term of ment of years years, from six to fourteen imposed after the found him guilty of assault, robbery, aggravated and theft by taking.1 unlawful in part We affirm and part. vacate in ¶2 prosecution The appellant arose from crimes in committed Lancaster Coun- ty on December when an assail- ant year-old beat and robbed 60 Billy ($8.00) eight Mitchell of dollars while he guest apartment friend, was a in the of a and then took Mr. Mitchell’s truck. reported Mitchell the assault and theft to police at approximately p.m. 10:00 evening, the same and less than one-half hour, appellant apprehended was behind the wheel of Mr. Mitchell’s truck. When appellant brought station, police police noticed blood stains on his clothes and hands. of appellant’s Pieces blood stained clothes were seized for lab testing, samples and of blood were recov- ered from his hands. The blood tests de- termined that the blood was of human origin high probability with a that some of it came jury, from Mr. Mitchell. A appellant guilty found above referenced crimes. The trial imposed September sentence on appellant and thereafter timely filed this appeal. Glick, Defender, MaryJean Public Lan-

caster, for appellant. ¶ Appellant, in the brief submitted in support of appeal, presents the follow- H. May, Atty., John Asst. Dist. Lancas- ing questions for our review: Totaro, ter and Donald R. Asst. Dist. Did the trial court err in prohibiting Atty., Lancaster, Com., appellee. introducing

defense counsel from evi- JOYCE, KLEIN, JJ„ BEFORE: prior and dence of the victim’s conviction for McEWEN, assault, P.J.E. where defense coun- theft, Separate imposed sentences were merged conviction of as it was deemed robbery convictions for and as- robbery. into the conviction for sault, imposed while no sentence was for the (2) limine, assert a did not theory of case was sel’s in fight justification victim had been with someone defense. defendant, prior encountering reviewing ruling 5 In trial court opened the door to the Commonwealth stan admissibility on the of evidence our prior by claiming the victim’s record It is one of dard of review is deference. that the victim was “at his essence ... a con firmly “[qjuestions established person”? decent lie admissibility evidence cerning the denying trial court Did the err defen- discretion of the within the sound motion for a mistrial where the dant’s court, not re reviewing will court] [a Attorney, District in his Assistant clos- ques the court’s decision verse ing argument, improperly raised fact tion absent a clear abuse of discretion.” silent that defendant chose to remain Chmiel, 478, arrest, the time of his and the court denied, 498, 406, (1999), 414 738 A.2d cert. gave no corrective instruction? 1131, 970, 120 S.Ct. 145 L.Ed.2d 528 U.S. repeatedly the trial court in Did err (2000). 841 jury incorrectly regard- instructing the does 6 It mention that merits ing culpabil- the elements ruling urge judge’s pretrial not that ity necessary to convict defendant Rather, he an error of law. constituted assault, where the Com- by the contends a comment made monwealth conceded victim during his Attorney Assistant District bodily injury, had not sustained serious an opening constituted address seeking solely a and was conviction the victim’s impermissible reference to allegedly the basis that had defendant character, door” to thereby “opening the attempted bodily inju- to cause serious character, and an attack on the victim’s ry? that, therefore, it an of discre- abuse ¶ Appellant argues 4 first permit judge to to tion the trial refuse refusing permit

trial erred in to court de prior conviction. the use of the victim’s use fense counsel to on cross examination of the alleged offending The comment 1996 victim’s conviction for the fol- prosecutor was contained within contends assault. He that: lowing introductory remarks: permitted should have been to in- [H]e victim, Billy also about the [This is] case Billy troduce evidence show that to said, who, years I old. Mitchell as is 60 had in Mitchell been convicted 1996 of not like a of us. He’s Mr. Mitchell is lot theory assault. Defendant’s about had a hard life. He’s nervous Mitchell the case was that Mr. had so- today. He’s the most testifying already during an been assaulted alter- essence, at his he’s cial character but cation with someone else when en- person decent and he deserve didn’t Thus, countered him. Mr. Mitchell’s vi- what to him. happened it olent nature was relevant because sup- 41 p. (emphasis N.T. to add to defendant’s tended credence plied). of events. version comment, read 7 when p.

Brief Our consider- This Appellant, trial, depiction of was not a must include two context ation of these contentions (1) character, to but was an effort original- the victim’s judge salient factors: the trial the de- anticipated attempt of during negate ly question pre- addressed hapless Mr. portray motion fense Mitchell counsel’s ruling defense 682 unworthy sixty year because he was a The decision to declare mistrial who, during spells,

old homeless man cold within the sound discretion of the court cigarettes traded beer and to Mends and will not be reversed absent a “fla fact, place sleep. though return for a grant abuse of discretion.” Common Mitchell, drug use was denied Mr. de- Cottam, 311, Pa.Super. wealth v. 420 616 counsel, in attempt fense an obvious 988, (1992); A.2d Commonwealth v. Mitchell, discredit Mr. to him as a referred Gonzales, during “crack head” at times the trial. 1368, A.2d 1370-71 A mistrial is The Commonwealth’s comment was no ... remedy an “extreme ... must [that] more than a reminder to Mr. granted only be when an incident is of Mitchell, though living margin on the such a nature that its effect unavoidable society, deserving was nonetheless deprive of a fair trial.” protection of the law. The trial Vazquez, Commonwealth v. Pa.Su fact,2 appreciated this and ruled that there (1992) per. 787-88 attempt by was no the Commonwealth to Chestnut, (citing Commonwealth v. invoke the victim’s character in behalf of and Com credibility. We find no basis Brinkley, monwealth v. disagree which to with this decision. (1984)). may A.2d 980 A trial court by improper remove taint caused testi ¶ Moreover, 8 judge since the trial cor- mony through curative instructions. 609,3 rectly applied ap- Pa.R.E. and since Savage, Commonwealth v. pellant asserting was not a self-defense 309, 312-13; Commonwealth v. claim, upon we detect no basis which to Richardson, judge find that the trial erred or abused (1981). Courts must consider all sur refusing his discretion in to allow defense rounding finding circumstances before counsel to cross examine the victim about that curative instructions insuffi were prior his conviction for remedy

cient and the extreme of a mis Richardson, trial Pa. at required. 496 ¶ Appellant argues 9 next 526-527, circum 437 A.2d at 1165. The impermissibly the Commonwealth referred must stances which the court consider silence, pre-arrest his to and that the trial improper remark include whether the refusing grant court erred in re to his intentionally by was elicited the Com quest govern for a mistrial. The standard monwealth, the whether answer was re ing our review of a trial court’s refusal to grant request sponsive question posed, for a mistrial has been to the whether previously by exploited well summarized this Court: the Commonwealth the refer- During judge purpose attacking credibility the 2. the trial the denied defense For the witness, request pre-trial counsel’s to reconsider his of a evidence that the witness has ruling, stating: only been convicted of a crime is admissible opening I what he involving dishonesty don't think said his it if was crime any testimony statement nor of the victim’s Mr. Mitch- false statement. Pa.R.E. 609. appro- reaches the level where it would be involving not a conviction [was] ell’s assault priate. ruling So the is as before. statements, is, dishonesty or and it false July p. N.T. therefore, irrelevant to the issue of his ve- Grimm, racity. See v. Commonwealth support decision on this issue the In of his (1977). Pa.Super. A.2d 377 judge following trial offered the rationale in Opinion the filed with this Court: he since de- ence, response” analysis, “fair whether the curative instruc- under a counsel, during closing argument appropriate. tion Id. was fense clos- the preceded which Commonwealth’s Stilley, reference repeatedly made ing argument, 242, 250 A.2d “story” attempted to appellant’s argument of found- 10 The jury of credibili- the its inherent convince following by ed made the remark ty, specifically: prosecutor during closing argument: any- say pulled over. Doesn’t He’s on De- of the events -“Avery’s version right. thing. That’s his And then on He told changed. 19th never cember he police station ride back Kiss, Goodson, he told Detective Officer it says, guy I rented from off some Burkhart, I rented he told Detective says. all That’s street. someone, from car on the street 9, 2002, p. sup- July (emphasis N.T. physical N.T. evidence.” fits with plied). This is the sole comment made 9, 2002, p. 241. July regard appel- the Commonwealth with Avery line is never denied -“The bottom lant’s claim rejecting “silence”. Billy blood on that that was Mitchell’s appel- that this isolated reference entitled wiped I Hey, offered him. He that. lant trial the wrote: to a new I rented blood off and then guy’s Immediately referencing after his si- from him.” the truck N.T. lence, Attorney the Assistant District p. 242. right that it was the stated defendant’s false, why don’t Avery’s -“If version is say anything. the motion When it absolutely prove they everything do made, a mistrial I decided July p. false?” N.T. the that the comment defendant had right to remain silent cor- adequately by defense These references were made the reference to rected his silence counsel, had despite the fact that cautionary that a instruction would have trial, had not been not testified unnecessary called attention to the ref- Thus, the subjected to cross examination. Furthermore, erence. there was testi- the passing reference to Commonwealth’s mony varying gave defendant (from appellant’s “story” progression police statements in the both his nothing telling police to the saying Therefore, police truck and the station. possession the truck was victim’s prejudice the degree by caused refer- deal) merely fair street-level business to the silence was the ence lessened v. Bo e.g.: Commonwealth comment. See jury that testimony fact that the heard (1996). 103, lus, 680 545 A.2d 839 Cf: to gave police. statements the Com- DiNicola, 966 797 A.2d Gbur, 18, monwealth v. 327 572 Pa. (Pa.Super.2002), appeal granted, 25, 1151, (1984). I 474 A.2d con- (Where (2003) 763, A.2d 546 the remark cluded that Commonwealth’s testified, Commonwealth could had not minimis and that a curative was de case-in-chief re introduce evidence its necessary. instruction was not silence.). pre-arrest garding defendant’s supports Our review of the record analysis of the perceptive judge. ¶ in his Appellant contends that erred in Moreover, judge the trial argument the final compelled we to charge the jury to on the isolat- his instructions the conclusion that Commonwealth’s have ed remark could also been sustained defendant,

In reviewing challenged jury alleging instruc We’re the tion, we must review the charge as a night, attempted his conduct to whole simply portions, and not isolated bodily injury. cause serious to ascertain fairly conveys whether it p. sup- N.T. 251 (emphasis the legal principles at issue. counsel, plied). Defense based on this Faulkner, 57, Commonwealth v. 528 Pa. statement, asked the trial to tailor denied, 595 A.2d 28 cert. 503 U.S. jury charge solely part to focus on that 112 S.Ct. 118 L.Ed.2d 397 charge assault that de- (1992). reminded, well, areWe as that a “attempt scribed an bodily cause serious possesses trial court broad discretion in injury”.4 refused, The trial judge opting phrasing its jury instructions to the instead to read to the the entire crim- is not using particular limited to lan information, inal complete statutory guage provided that clearly, the law is language, and “explanatory certain com- adequately presented and accurately ments” which apparently were derived jury. Commonwealth v. Prosdoci Pennsylvania from the Suggested Stan- mo, (1990). (Crim).5 Instructions, Jury dard Pa. SSJI Jones, Commonwealth v. Slip See: Trial Opinion p. Court 192-193, 1181, 1196 part relevant those were instructions Appellant argues that the trial follows: judge’s instructions going I’m Now move to the second inappropriate were in that the court in- charge brought by which has been structed charges and elements Commonwealth, going and I’m to read part were not of the Commonwealth’s you the Information for that charge against case appellant. This argument and that’s aggravated assault. founded the fact that the Common- The alleges Information that the defen- theory culpability wealth’s on the count attempt dant did to cause bodily of aggravated assault was based on an injury inju- to another or did alleged attempt cause such to cause bodily ry intentionally, knowingly or injury, rather than the actual causation of bodily injury, as revealed in under circumstances which following manifested by prosecutor remarks made the an during extreme indifference to the value of closing argument: wit, his human repeatedly life: To he did Billy strike Mitchell with closed fists and charged aggravated He’s also as- did also kick him sault and numerous charged he’s not times about Wel- —Miss pointed body causing lener and facial lacera- [defense counsel] out that face there’s no and bodily injury swelling. serious in this tions severe facial Said alleging case. We’re that there is. offense occurred the 100 block of appellant’s argument In phrased Pennsylvania Suggested brief the Jury is 5. The Standard as follows: pre- Instructions for Criminal Trials were pared by As the Commonwealth conceded that the the Criminal Instructions Subcom- bodily inju- victim had not suffered serious Pennsylvania Supreme mittee of the Court ry, only portion relevant Instructions, Proposed Jury Committee for aggravated instructions assault was that published Pennsylvania and were Bar explained necessary which those elements Institute, Continuing Legal which is the Edu- attempting to convict defendant for to cause Pennsylvania cation Arm of the Bar Associa- bodily injury, particular, serious the re- tion. quired specific element of intent. Appellant, pp. Brief of 26-27. con- Street, that his City, practically it is certain Queen Lancaster South such will cause a result. County. duct Lancaster respect to Now, person recklessly A acts language statutory this is the — injury he conscious- per- bodily A when aggravated of assault. serious language unjustifi- disregards if he a substantial aggravated ly son of assault guilty will bodily injury bodily injury risk that serious attempts to cause serious able injury or if he from conduct. another causes such result knowingly intentionally, or be of a nature The risk must such manifesting circumstances an ex- under considering the nature degree that human indifference to of treme the value and the conduct intent of the defendant’s life. him, its disre- circumstances known to from the injury injury gross involves deviation bodily bodily gard Serious a reasonable death of conduct which which creates a substantial risk of standard would observe in the defendant’s permanent person or causes serious dis- which impair- figurement protracted or or situation. loss bodily function of mem- any

ment of the bodily impairment injury means Serious ber organ. or creates physical of condition which causes risk of or which Now, explanatory about substantial death these comments pro- permanent disfigurement of charge [sic]. serious impairment the func- loss or guilty order to find the defendant tracted assault, bodily organ. you any member must find tion each of the crime has elements considering all of the evidence If after beyond been established a reasonable has you find doubt and there three elements. three6 ele- each of these established doubt, then attempted beyond a Number that the defendant ments reasonable inju- guilty find the defendant bodily you cause or did cause serious should Otherwise, you ry Billy Mitchell. In order to find this, charge. find him nbt of that attempted guilty that the defendant to do must you find that he in con- engaged must involving attempt to commit In cases step constituted duct which a substantial bodily injury, the Common- serious injury to causing bodily toward Spe- prove specific must intent. wealth Billy Mitchell. injury bodily inflict cific intent to prove aggravat- as that Element Number that the defendant an at- which intentionally, or reck- ed assault is based knowingly acted circumstantially. proved tempt may mani- be under circumstances which lessly to the val- fests an extreme indifference attempted that the prove To ue human life. the bodily injury, Com- to cause serious that the de- only need show respect A monwealth person intentionally acts bodi- attempted to cause serious it is his fendant bodily injury to when serious another, not that injury cause to object purpose ly to conscious injury occurred. bodily actually injury. such an giving rise to the inference respect A to person knowingly acts Conduct cause serious intended to injury aware the defendant bodily when he is that, separately identify the third judge did not emphasis from It as is evident the bears instructions, jury the element. above recitation bodily injury support sufficient to an in support nale of his upon instruction this aggravated assault conviction need count: in itself be life-threatening. charged The Commonwealth the Defen- intent, If there is no direct evidence assault, aggravated dant with 18 Pa.C.S. the defendant’s intent to inflict serious 2702(a)(1), § which “attempts states: to bodily injury may gleaned be from other bodily injury cause serious ... or causes ” surrounding circumstances the defen- Information, injury .... The attack dant’s on the victim. Such evi- which statutory tracks this language and dence can include that the defendant the statutory language exact were read disproportionately larger

was or strong- jury. to the Explanatory comments on er than the victim. that statutory language given were 9, 2002, N.T. July pp. 277-281. (Crim) jury. the See SSJI 15.2702A and B. Finally, specific Appellant instructions on contends the instruction, prove Commonwealth’s burden to lengthy which contained so specific “attempt intent as to the to com- superfluous information, much only served mit serious bodily injury” provisions of jury, confuse the an assertion made given the statute jury were to the evident fact jury, the that the following well. deliberations, the commencement of twice returned to seeking the courtroom addi- that, The Defendant contends because tional instructions on the aggra- crime of only Commonwealth was seeking a assault, relationship

vated and its to the attempt conviction for an to cause seri- simple lesser offense of In each bodily injury, ous these instructions instance, defense counsel sought the more were language error. The in the Infor- only limited instruction that focused on the mation, the statute and the explanatory part first of the statutory definition of presented comments to the assault, aggravated and each time the trial disjunctive, “attempts i.e. to cause judge response refused. jurors’ to the ... or Accordingly, causes”. I believe inquiry first re-read them the this contention is without merit. entire statutory definition of aggravated Trial Slip Opinion pp. Court 2-3. assault, “explanatory comments” relat- particular Our focus is section assault, ed to statutory Code, 2702 of provides the Crimes which assault, language simple and the “ex- part: relevant planatory simple comments” related to as- person A guilty July pp. sault. N.T. 293-297. In if response attempts jurors’ bodily cause serious inquiry second another, injury injury or causes such judge re-read to them statutory the entire assault, intentionally, knowingly definition of and the under circumstances “explanatory manifesting ex- comments” related to aggra- treme vated indifference to the value of human assault. N.T. pp. 299- then, life. only 302. It was following the third assault, instruction on aggravated 2702(a)(1). § Appellant Pa.C.S. con- guilty aggra- returned verdict of correctly tends—and so—that the first vated assault—in addition to verdicts of alone, clause only stands and that the sec- guilt robbery on and theft. ond clause is modified the mens rea

¶ 15 The trial in judge, Opinion “intentionally, knowingly elements of or Court, has offered the following ratio- recklessly.” charged been has The defendant distinguished colleague 17 Our late In or- assault. Hoffman, Opinion of in his the crime Judge Sydney J. guilty ag- of Grassmyer, v. the defendant to find Commonwealth der 11, accu- 402 A.2d 1052 find that each you must gravated assault explained the distinction between rately has been the crime the elements of of in subsec- separate offenses described doubt. a reasonable beyond established (a)(1) 2702, he tion of section when wrote: are two elements: There 2702(a)(1), guilty one is of Under Section attempted to That the defendant attempts assault if he either injury to bodily [the cause serious harm, if bodily or to cause serious to find that In order victim]. intentionally, injury in fact causes such this, you to do attempted defendant attempt recklessly. The knowingly, or in con- engaged that he must find is, bodily injury, like all serious cause a substantial which constituted duct intent attempts, specific criminal bodily step causing toward serious 908(a); § Leba- Mt. crime. 18 Pa.C.S. injury victim]. to [the Motors, Chrysler Corp., Inc. v. non in this conduct 2. That the defendant’s (W.D.Pa.1968). F.Supp. See intentional, inor other regard was Graves, 461 generally v. ob- that it was his conscious words (1975). However, serious to cause such ject purpose a successful infliction of serious because bodily injury. case, injury, as in the instant bodily inflicted, specific criminal if evidence, If, of the considering all after required. intent is not See 18 Pa.C.S. has the Commonwealth you find 302(b)(3) § not as (defining recklessness be- of these elements established each particular intent to achieve result but as doubt, you then yond a reasonable disregard conscious of substantial and ag- guilty should find risk). unjustifiable you wise must assault. Other gravated supra, (emphasis n. 1 Grassmyer, guilty aggra- not find the defendant original).7 vated may 18 Nor it be overlooked that the (Crim) 15.2702A, (relating Pa. SSJI Jury In- Pennsylvania Suggested Standard 2702(a)(1)). part first of Section Trials,8 suggest structions for Criminal ASSAULT —CAUS- AGGRAVATED separate jury instructions should be INJURY BODILY ING SERIOUS clauses, specifically: given each charged has been The defendant

AGGRAVATED ASSAULT—AT- In or- aggravated assault. the crime of INJU- TEMPTED SERIOUS BODILY ag- guilty the defendant der to find RY knowingly, recklessly” are tentionally, attempt provision mens rea for the The strict clause, expansive the actual clearly part and the mens rea for the second intended as provision bodily injury is also evident first back to the not intended to relate and are grammatical analysis of the section. from a clause. independent clause set clause is an The first (i.e., guilty person by a comma "[a] off recognize that these "instruc- we 8. While attempts if he to cause courts, they are binding tions” are another,”), while bodily injury to instructive. Commonwealth nonetheless phrase comma "or causes there is no after Tilley, 528 Pa. injury” which introduces the second Thus, "in- the mens rea elements of clause. 688

gravated you assault must find that each find the defendant guilty aggra- of vated assault. of the elements of the crime has been beyond established a reasonable doubt. (Crim) 15.2702B, (relating SSJI to the There are three elements: 2702(a)(1)). part second of section emphasis It 19 bears that the trial 1. That the defendant caused serious Opinion support court in its victim], ruling of its bodily injury to [the specifically Pennsylvania referred to the 2. That the defendant acted intention- Suggested Jury Standard Instructions as ally, knowingly recklessly under “explanatory the source of its comments” manifesting circumstances extreme jury. (“Explanatory to the comments on indifference to the value of human that statutory language given were to the person intentionally life. A acts (Crim) jury. See: Pa. SSJI 15.2702A and respect bodily injury to serious B.”). however, appears, It in reading that object when it is his conscious these jury, “comments” the trial purpose to A injury. cause such part judge merged of each of the above person respect acts knowingly with separate suggested and distinct instruc- bodily injury when he is one, a single thereby delivering tions into a practically aware that it is certain hybrid instruction that utilized the first of that his conduct such a will cause 15.2702A, suggested element of instruction person result. A acts suggested with the second in- element of respect bodily injury to serious Moreover, hybrid struction 15.2702B. consciously disregards when he a instruction, which blurred the distinction unjustifiable substantial risk subsections, statutory between was bodily injury will result repeated ensuing thereafter twice from his conduct. The risk must be jury. two instructions to the N.T. See: of such a degree nature and 278-281, 294-296, pp. 300- considering the nature and intent of 302. the defendant’s conduct and the cir- hybrid 20 The fact that this instruction him, cumstances known to its disre- three times delivered gard gross involves a deviation from way appel- eased the for the to find the standard of conduct which a rea- lant guilty aggravated of at- person sonable would observe in the tempt upon a rea based mens element defendant’s situation. result, specific was less than intent. As a If, evidence, considering after all of the compelled to rule that we be you find that the Commonwealth has the charge ag- afforded new of established each of these elements be- gravated Consequently, we are doubt, yond you a reasonable then ag- to vacate the conviction for should find the guilty ag- of gravated assault and remand this case to gravated you proceeding.9 assault. Otherwise must the trial court for further will, course, (1990), parties upon 9. The remand be A.2d 1116 and Commonwealth v. Moore, Pa.Super. A.2d mindful certain of the decisions of this denied, appeal Court that have held that the doctrine merger preclude imposition sepa- Compare: will Commonwealth Bal sar, (1996) (No rate sentence on an assault con- merger robbery viction when it is founded assault with same operative robbery facts as conviction. See: when assault conviction based Ennis, act); completed, opposed attempted, Commonwealth v. ¶21 Bar in the American Judgment robbery jury and instructions of sentence on asked, if “But Journal. He Judgment aggra- Association affirmed. of sentence on regular instructions are intended for jury is vacated. Case remanded. vated why give them lawyers, and not people relinquished. Jurisdiction When Jurors’ English?” of Legal instead ¶ KLEIN, J., concurring Files a Over, They’re Telliny you Eyes Glaze Statement. (Nov.1995). Something, 81 J. 91 A.B.A. Saltzburg A. Stephen quoted He Professor BY STATEMENT CONCURRING National Washington University of George KLEIN, J.: Professor for the answer. Law Center fully join by my 1 I in all that is said answer to the fear Saltzburg attributed the Judge President colleague, esteemed reversal, why judges are saying, “That’s agree way I Emeritus McEwen. that the anything except use the traditional loath to read, charge there was a likelihood They words of the stat- use the language. possible jury confusion. It is explain than what the law try ute rather thought jury that even without serious really means.” bodily injury resulting, aggravated assault ¶ 4 the draft standard instructions Until recklessly, could be caused which is not le- English Plain from are translated into the law. galese, judges should make sure ¶ 2 I wish to that a trial does add explanations can be understood. standard necessarily his or discharge her obli- certainly avoid the confusion They should merely gation by reading the stan- draft if and will result extraneous irrelevant charge dard verbatim. studies Numerous portions charge merely of the standard jurors comprehend show fail to simplified expla- jury without read large portion of the instructions the law nation. under the best of In a circumstances. Policy article Yale Law lengthy

Review, Attorney Connecticut Assistant stated, Drury “[I]t

General Stevenson

makes little sense to have a at all if receive its cannot directives Pennsylvania, COMMONWEALTH jurors comprehend.” terms To Whom Appellee, the Law L. & Addressed? Yale 2003). (Winter

Pol’y. Rev. 105 v. ¶ There is a devi- general reluctance to SCHMOTZER, Appellant. L. Martin legalese statutory ate from the defi- Pennsylvania. Superior Court crimes, I hi which nitions believe advocacy The eminent trial advised. Argued June writing professor legal James W. McElha- Filed Aug. Joseph C. of Trial ney, Hostetler Professor Advocacy Practice Case Western much

Reserve School of Law wrote a English pithy but article on Plain

shorter facts Rodriquez, ing there from the in Common- v. 449 Pa.Su- the facts and Commonwealth denied, Ennis). per. appeal A.2d wealth (1997) (distinguish-

Case Details

Case Name: Commonwealth v. Bracey

Court Name: Superior Court of Pennsylvania

Date Published: Aug 22, 2003

Citation: 831 A.2d 678

Court Abbreviation: Pa. Super. Ct.