COMMONWEALTH of Pennsylvania v. Terrance Lorenzo BRYANT, Appellant.
Superior Court of Pennsylvania.
Filed Dec. 5, 1980.
423 A.2d 407
Submitted April 16, 1980.
I recognize that our decision today is basiсally one requiring this court to draw a line indicating where police possess sufficient information to have probable cause to arrest an individual. My disagreement with the majority comes solely with regard to the position at which we are to draw that line. I would hold that the police had sufficient information on which to have probable cause to make an arrest.
I would, therefore, affirm the decision of the lower court.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
PER CURIAM:
Terrance Lorenzo Bryant, the appellant, was indicted on five counts of robbery, four cоunts of theft by unlawful taking, five counts of aggravated assault and one count of criminal conspiracy. Appellant pleaded not guilty and waived jury trial. In a non-jury trial before Honorable Samuel Strauss, he was found guilty of four counts of robbery, three counts of theft by unlawful taking, four сounts of aggravated assault, and the one count of conspiracy. Appellant was sentenced to not less than two and not more than four years for each of the four counts of robbery; these sentences were to run consecutively. Sentence wаs suspended on the remaining counts.
The relevant facts of the crimes are as follows:
On the evening of March 6, 1978, two armed, black males forcibly entered an apartment located in the North Side section of the City of Pittsburgh. At that time, the apartment was occupied by five individuals, Richard Sayers, Kevin McCallister, John Piatrantonia, the three lessees—as well as Karen Steffy, and Jean Daley, visitors. The intruders demanded drugs and money, threatened the occupants with harm if neither were forthcoming, and emphasized their intent by physically assaulting the victims. Money and other valuables belonging to four of the five persons present were taken, the exception being Ms. Steffy.
At trial, Ms. Daley, Ms. Steffy, Mr. Sayers and Mr. McCallister identified Mr. Bryant as one of the assailants. They all described him as a black man with platted hair, wearing a navy blue pea coat and a blue demin hat. Three of them testified to being put through a photographic identification procedure and having picked Mr. Bryant‘s picture from police files. Two of them had picked appellant out of a line-up. Mr. Piatrantonia did not testify at trial, resulting in the counts against Mr. Bryant involving him being droрped. The defense presented was an alibi, several witnesses testifying that appellant was at home at the time of the robbery.
The evidence compiled by the Commonwealth to establish Mr. Bryant‘s identity as one of the perpetrators is more than sufficient. The crimes in question took place over a twenty to thirty minute period, and during this time, the perpetrators were in close proximity to the victims, often under good lighting. The four victims who were present as witnesses at trial made in-court identifications of the appellant as one of the robbers; each remained positive of their identification following cross-examination. The Pennsylvania Supreme Court in Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954), stated:
“Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify but remains, even after cross-examination, positive and unqualified, the testimony as tо identification need not be reviewed with caution—indeed the cases say that ‘his [positive] testimony as to identity may be treated as the statement of a fact.‘” Citations omitted. Id., 378 Pa. at 424, 106 A.2d at 826.
As the victims had a good opportunity to observe the perpetrators and eaсh remained steadfast in his courtroom identification, the in-court identifications must be taken as statements of fact under the rule of Commonwealth v. Kloiber, supra. The previous opportunities to identify were offered in the forms of the description given to the police, a photographic identification, and a line-up. The descriptions given
Secondly, appellant argues that the evidence was insufficient to prove beyond a reasonable doubt that a robbery was perpetrated against Ms. Steffy. However, the evidence is more than sufficient to sustain the conviction under the robbery statute.
Appellant was convicted under
Appellant does not dispute the trial court‘s finding of an explicit or implicit threat of serious bodily injury made to Ms. Steffy; he contends only that he did not attemрt a theft of her property. Hence, the issue on appeal is whether or not the evidence was sufficient to prove an intent to commit
The necessary intent is shown in the appellant‘s words and actions during the events in question. Following appellant‘s forced entry to the apartment, and the corralling of its occupants into one of the bedrooms, aрpellant stated that if he and his accomplice didn‘t “get some stuff out of this place . . . [there would be] some dead honkies laying around.” He then proceeded to search the apartment and collected several items without regard to whom the owner оf the property was. As Ms. Steffy was present in the apartment at the time of the robbery, appellant might reasonably have expected that some of the articles present in the apartment might belong to her. One may reasonably infer from these words and actions appellant‘s intent to take any attractive property belonging to Ms. Steffy which he might happen upon.
The requirement of a substantial step is satisfied by the forcible entry to the apartment and the subsequent search. As each of the requisite elements of an attempt to commit theft is present, and the trial court‘s finding of a threat of serious bodily harm unchallenged, we find that the Commonwealth has met its burden of proof under the statute and the conviction for robbery must stand.
Finally, appellant advances the argument that the evidеnce was insufficient as a matter of law to sustain convictions for aggravated assault against Richard Sayers, Karen Steffy, and Jean Daley. Aggravated assault occurs when a person:
“attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life.”
18 Pa.C.S.A. § 2702(a)(1) .
As the record contains no evidence whatsoever of serious bodily injury to any of the victims, to sustain the convictions, we would have to find sufficient evidence of an attempt to cause such harm.
[b]odily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
The testimony reveals that Richard Sayers was handcuffed, poked in the side of his head with a gun, laid on the ground, and kicked once. Karen Steffy was forced at gunpoint into a room and thrown to the ground. Jean Daley was sitting in a chair throughout the robbery with а gun aimed at her head.
After reviewing the record, we are led to the conclusion that appellant‘s actions do not even evidence an attempt to inflict serious bodily injuries upon any of the victims. One isolated kick does not reflect an intent to causе permanent disfigurement nor does it create a substantial risk of death. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). Likewise, the act of throwing someone to the ground is insufficient evidence of an intent to commit serious bodily injury as defined above. As to the charge of aggravated assault against Jean Daley, the Commonwealth concedes the charge is baseless, and an examination of the record corroborates this.
This is not to say that appellant‘s actions against the victims are without legal consequence. A person is guilty of assault if he
“(1) attempts to cаuse or intentionally, knowingly or recklessly causes bodily injury to another. (2) negligently causes bodily injury to another with a deadly weapon, or (3) attempts by physical menace to put another in fear of imminent serious bodily injury.”
18 Pa.C.S.A. § 2701 .
Appellant also committed an assault upon Jean Daley by threatening her with a firearm. However, for sentencing purposes, we are compelled to consider this count merged with the robbery charge against this victim. The two victims above were not оnly threatened in the course of the robbery, but they were also subject to additional attacks by appellant when they were kicked or thrown to the ground. Consequently, the criminal acts with respect to those victims, were separate and distinct acts, warranting separate punishments. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). However, appellant did not touch or injure Ms. Daley; rather, she remained in the same chair where she sat when appellant burst into the apartment. There are no additional facts with which to support the assault charge other than those facts which substantiated the robbery charge as to this victim, i. e., threatening her with a gun in the course of committing a theft. Commonwealth v. Guenzer, supra.
Three counts of aggravated assault, specifically count three (3), count six (6), and count fourteen (14), are modified to simple assault, with sentence vacated as to count three. All other convictions аnd sentences affirmed.
PRICE, J., files a concurring and dissenting statement.
PRICE, Judge, concurring and dissenting:
I would affirm the judgments of sentence on all counts except count three (3). I specifically dissent to the modification of counts six (6) and fourteen (14).