COMMONWEALTH of Pennsylvania v. Jeffry Lee KIBE, Appellant.
Superior Court of Pennsylvania.
Decided Oct. 20, 1978.
392 A.2d 831
Submitted Sept. 13, 1976.
Here, I cannot say that a claim based on unlawful delay would have been without “arguable merit.” In considering how much delay is unlawful, the cases have reached varying results which depend on the facts of the particular case rather than on a рer se cutoff point after which a revocation hearing will be found to have been unduly delayed. See Commonwealth v. Waters, 252 Pa.Super. 357, 381 A.2d 957 (1977) (dissenting opinion by SPAETH, J., discussing cases). Unlike the defendants in cases so far decided, appellant was out on bail as he awaited his probation violation hearing in May.* One could make a claim of at least arguablе merit that for such a probationer, the delay in holding the revocation hearing must be relatively brief. Thus, a probationer who while awaiting his probation violation hearing is imprisoned for another offense will not suffer much from a delay in holding the revocation hearing, for he is in prison anyway; but when the probationer is on bail, the question of whether he may “go about his business” in the outside world or must go to prison should be resolved more quickly.
CERCONE, J., joins in this opinion.
* By the time of the continued hearing in September, however, he was in jail pending disposition of a new charge.
Edgar B. Bayley, District Attorney, Camp Hill, for Com., appellеe.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
PRICE, Judge:
On November 3, 1975, at about 11:20 P.M., Carrie Coulson left the Enola Hotel in Enola, and headed for the hotel‘s parking lot where her car was parked. From the hotel porch she saw a blue sedan pull into the parking lot. The driver of the blue sedan parked it four or five cars away from the spot in which Mrs. Coulson‘s car was parked. At that time, Mrs. Coulson saw no other activity in the parking lot.
A I turned around and seen a person in back of me about an arm‘s length away.
(Brief pause taken off the record.)
MR. BAYLEY: Would you just read the answer back to that last question, the last question and answer.
(Question and answer referred to read back by reporter.)
BY MR. BAYLEY:
Q A man or a woman?
A A man.
Q At thаt point when you observed this man, had you ever seen him before to your knowledge?
A No.
Q What occurred next?
A He asked me if that car was mine, and I says yes. He says get in it, and I said no, I‘m not.
And then he started to fool around with the front of his pants, and then I just screamed.
Q When you screamed, what occurred next?
A Well, he hit me in the face around the nose.
Q Do you know what portion of his body hit you, did you see the blow coming?
A No.
Q When you were hit, what happened to you?
A I fell down on my back, and then I got up and rаn into the Enola Hotel. (NT 10-11)
And on cross-examination, on the same time interval her testimony was:
Q Were you afraid at the time you heard the footsteps?
THE COURT: You mean when she first heard them?
MR. SPRENGLE: Yes.
A You mean when I first heard the footsteps--
BY MR. SPRENGLE:
Q When you heard someone coming up behind you, were you frightened?
A Not at first, no.
Q Did you happen to notice if there was a moon out that night?
A No.
THE COURT: You mean no, you didn‘t notice or no, there was no moon?
A I didn‘t notice.
BY MR. SPRENGLE:
Q You say as you heard these footsteps, you turnеd around and you saw the defendant at arm‘s length, is that all correct?
A Yes.
Q He then said what to you?
A He asked me if this was my car, and I says yes.
Q Then you said he said get in?
A He says well, get in it, and I says no.
Q He then began to fool with his pants?
A Yes.
Q Then you immediately screamed?
A I screamed, yes.
Q Do you remember what flashed through your mind when you screamed, why you screamed?
MR. BAYLEY: I object, it‘s obvious. I object to the form of the question.
THE COURT: I don‘t think that that is a proper objection because her answer may be obvious. I will permit her to answer.
Why did you scream?
A Because the first thing I thоught of was the idea that he was going to rape me when I seen him fooling around with his pants. (NT 28-29)
When Mrs. Coulson screamed, appellant hit her in the face, which resulted in the victim‘s falling to the ground. Mrs. Coulson suffered a fractured nose. Appellant was convicted of aggravated assault1 on February 12, 1976, and appeals his conviction.
The sole issue of merit argued by appellant is that a fractured nose does not constitute the “serious bodily injury” required for a conviction of aggravated assault. We disagree.
It is true that in Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978), the supreme court held that where the victim of a punch to the nose did not actually sustain the requisite serious bodily injury, there the injury also being a fractured nose, a conviction for aggravated assault could not be sustained because there was insufficient evidence, direct or circumstantial, from which an intent to inflict serious bodily injury could be inferred. There the only direct evidence of appellant‘s intent was his testimony to the effect that he did not intend to seriously injure the victim. The supreme court explained, “We hastеn to add that a simple assault combined with other surrounding circumstances may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault.” 477 Pa. at 194, 383 A.2d at 889.
In our opinion the facts in the instant case present sufficient additional circumstances to support the aggravated assault conviction, and therefore Commonwealth v. Alexander, supra does not control.
The appellant also argues that there was no probable cause to arrest and that the identification procedure was tainted. We find no merit to these arguments.
Judgment of sentence affirmed.
SPAETH, J., files a dissenting opinion.
WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or dеcision of this case.
SPAETH, Judge, dissenting:
The majority says:
Where a lone woman is approached at a late hour from the rear without warning by a male, ordered into her car, put in fear of an impending rape, and upon her refusal, struck with such force in the face as to fracture her nose, we hold that evidence sufficient to support a сonviction for aggravated assault.
At 833.
This has a fine ring; it sounds right; but it isn‘t right, because it violates settled principles.
The majority recognizes that the blow that appellant gave his victim did not inflict “serious bodily injury” upon her. The majority is compelled to this recognition by the fact that the Crimes Code,
Before examining this reasoning I am obliged to admit that I am not sure I understand it. It seems reasonably clear, however, that the impulse behind the reasoning is the majority‘s decent and warn hearted concern for appellant‘s victim. “This woman“, the majority seems to say, “was put into a perfectly frightful situation by appеllant. That‘s enough for us to find aggravated assault.”
This simply won‘t do; it defines appellant‘s criminal responsibility by looking at his conduct through the eyes of his victim. In adopting this reasoning the majority has proceeded backwards, or, to change the figure, on a course 180 degrees wrong. Appellant‘s criminal responsibility must be defined by looking аt his conduct through his eyes, not his victim‘s.
To be sure, the law might have developed differently, and in a manner consistent with the attitude expressed by the majority. In other words: The law might have made criminal responsibility depend, not upon the intent, or mens rea, of the accused, but upon an outside appraisal of his conduct. That is the way the law of contracts has developed. If you say, “I accept your offer“, you will be held bound to perform. Never mind what your private intent was. In defining contractual responsibility the law concentrates upon what the offeror was entitled to assume you meant. Restatement, Contracts, § 3, comment a; Calamari & Perillo, Contracts, § 12. So too with some aspects of the law of torts. As regards some torts, responsibility depends upon the actor‘s intent, for example, false imprisonment, where it must be shown that the actor “intend[ed] to confine the
Accordingly, the question that must be addressed, and that the majority does not address, is this: When appellant inflicted the blow on his victim, what was his intent? In Commonwealth v. Alexander, supra, the Supreme Court made this point as follows:
Where the injury actually inflicted did not constitute serious bodily injury [and here, as we have seen, and as the majority concedes, it did not], the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.
477 Pa. at 194, 383 A.2d at 889 (emphasis added).
Usually, the intent of the accused must be inferred from evidence of his actions, although sometimes there is evidence that he said something manifesting his intent. Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974). Here I quite agree with the majority that from the evidence, both of what appellant did and of what he said, it may be inferred that appellant intended to rape his victim. That inference, however, far from supporting the majority‘s conclusion, destroys it; for appellant‘s intent to rape his victim was not, and could not be, the intent to inflict serious bodily injury on her. The intent to raрe is to have forcible sexual intercourse with the victim.
First, a court must never assume the role, or the attitude, of a prosecutor. It would seem from the evidence that here the prosecutor might have charged appellant with attempted rape, whiсh is a felony of the first degree,
Second, and as a corollary to what has just been said, a court must never indulge in the feeling that whatever settled principle requires in other cases, in this case something more should be done. It is possible, I suggest, to conclude from its opinion that that is what the majority has done here. Rape is, without question, one of the most dreadful crimes; and attempted rape is almost as dreadful. This affords a сourt no excuse, however, for refusing to apply the Crimes Code, as enacted, and only as enacted. Here, the legislature has plainly defined what “serious bodily injury” means; it does not mean a simple assault inflicted in the course of an attempted rape. Given that definition, our part is to apply it, and not, out of a sеnse of outrage, to ignore it.
Recently, in People v. Caudillo, 21 Cal.3d 562, 146 Cal.Rptr. 859, 866, 580 P.2d 274, 281 (1978), the Supreme Court of California was confronted with a problem similar to the one we have here. The defendant had committed a burglary, in the course of which “he raped the victim twice, sodomized her and compelled her to orally copulate with him several times.” 23 Cr.L.Rptr. at 2363. The question was whether this conduct had inflicted “great bodily injury” within the meaning of a statute that provided for an enhancement of the punishment for burglary whenever the victim suffered “great bodily injury.” The statutory defini-
[P]ersonal repugnance toward these crimes cannot be a legitimate basis for rewriting the statute as it was adopted by the Legislature. It is precisely because emotions are so easily called into play in such situations that extra precaution must be taken so that this court follows the legislative intent and not our own predelictions or beliefs. This court has no choice in this matter.
The judgment of sentence should be vacated, and the case remanded with instructions to the lower court to enter a
* To quote the California Supreme Court:
Recently, the Legislature addressed itself to the problem of defining what constitutes “great bodily injury.” * * * [S]ection 12022.7 was added to the Penal Code. Section 12022.7 supplants the specific great-bodily-injury provisions of Penal Code sections 213, 264 and 461 with their great-bodily-injury enhancement provisions, and is made applicable to all felonies which do not necessarily involve such injury. Under the statutory scheme of section 12022.7, as originally enacted in 1976, the level of injury necessary to trigger the additional penalty of three years in prison was spelled out in some detail: “As used in this section, ‘great bodily injury’ means a serious impairment of physical condition, which includes any of the following: (a) Prolonged loss of consciousness. (b) Severе concussion. (c) Protracted loss of any bodily member or organ. (d) Protracted impairment of function of any bodily member or organ or bone. (e) A wound or wounds requiring extensive suturing. (f) Serious disfigurement. (g) Severe physical pain inflicted by torture.” * * *
Penal Code section 12022.7 was amended in 1977 to strike out the detailed definition of “great bodily injury” and substitutе the following definition: “As used in this section, great bodily injury means a significant or substantial physical injury.”
Thus it may be seen that the Legislature, while changing its mind with respect to a detailed definition of “great bodily injury” before that definition became effective, has now adopted a definition of “great bodily injury” that requires that the injury constitute a “significant or substantial physical injury,” * * *