A jury convicted appellant of robbery, 1 burglary, 2 conspiracy, 3 and aggravated assault. 4 Post-verdict motions were denied,, and appellant was sentenced to 6 to 15 years for robbery; 6 to 15 years for burglary, with the sentence to run consecutive to the sentence for robbery; a concurrent term of 3 to 6 years for conspiracy; and an additional concurrent *99 term of 2 and V2 to 5 years for aggravated assault. 5 On this appeal appellant claims that the trial judge erred in his instructions to the jury.
Viewed in the light most favorable to the Commonwealth, the evidence at trial was as follows. At approximately 3:15 а. m., on April 22,1977, appellant and his co-defendant, each carrying a revolver, accosted Joseph Bennett on the steps leading to his apartment house in Philadelphia. At their command Bennett unlocked the door to the apartment house. Once inside, appellant and his co-defendant forced Bennett to his knees and took over $200 from him. Appellant took Bennett’s keys and locked the front door behind him. He then returned the keys to Bennett, required him to unlock the door to his apartment, and went to an upstairs apartment. There, at gunpoint, he ordered Bennett’s neighbor, Devoux Gould, to come downstairs. When Gould requested permission to get dressed, appellant struck him on the head with the butt of his revolver and told him to shut up. Meanwhile, appellant’s co-defendant had accompanied Bennett inside Bennett’s apartment and started to rifle Bennett’s dresser drawers. Unbeknownst to appellant or his co-defendant, Bennett’s roommate had escaped out the back and called the police, who came to the scene and arrested appellant and his co-defendant. One officer searched the co-defendant and recovered over $200 in the same denominations as Bennett had described were taken from him. 6
At the close of all the testimony the jury retired to deliberate. After approximately two hours, the jury sent a message to the trial judge, requesting that he explain the *100 meaning of aggravated assault. The judge recalled the jury and instructed them as follows:
I will repeat the instructions which I gave the jury in my charge.
In order to find the defendant guilty of aggravated assault you must find that the defendant attempted or threatened to cause serious bodily injury to Devoux Gould.
Serious bodily injury is bodily 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.
Now, according to my recollection of the evidence, which is not binding on you, it is your recollection of the evidence that counts, this arises out of the testimony of Devoux Gould that the defendant-I withdraw that.
I will leave it to your recollection entirely. I have given you the definition; and I gave it to you again.
Resume your deliberations.
N.T., October 14, 1977, at 61-62.
Approximately two hours after this, the jury again returned with a question about the meaning of aggravated assault, and the judge further instructed them as follows:
THE COURT: Mr. Foreman, the Court has received the following communication from the jury.
“Does the charge of aggravated assault arise out of the alleged fact that the defendant pointed a gun at Gould or does it arise out of the alleged fact that the defendant struck Gould?”
The answer to both questions is yes, provided the jury also finds that as the result of either or both alleged incidents, first, that they occurred, and secondly, that this was done in an attempt or a threat to cause serious bodily injury to Mr. Gould.
Serious bodily injury, again, is bodily 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.
*101 As I recall the evidence, and it is yours to consider as to whether it’s accurate, and as to the weight to be accorded to it, is that Mr. Gould was struck on the head or the face, but at any rate, it arises out of that.
The answer to your two questions is yes, if you find that either or both events occurred, with the attempt or threat to cause serious bodily injury to Mr. Gould.
N.T., October 14, 1977, at 62-63.
Appellant’s first argument is that by stating, in the second of these instructions, how he recalled the evidence, the trial judge improperly invaded the province of the jury and conveyed to the jurors the view that the judge found Gould’s story credible.
Section 4.7 of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury (Approved Draft, 1968), provides:
(a) The Court, at the time it instructs the jury, may summarize and comment on the evidence, provided the jury is clearly and unequivocally instructed that it is the exclusive judge of the facts, that it is to determine the weight of the evidence and the credibility of witnesses, and that it is not bound by the comments of the court.
(b) The summary and comment permitted in subsection
(a) is governed by the following principles: .
(iv) The court may state the law and comment on matters in evidence bearing on the credibility of any witness, but may not directly express an opinion that certain testimony is worthy or unworthy of belief.
And see Commonwealth v. McNeill,
In this case the only effect of the judge’s discussion of the evidence was to direct the jury’s attention to the episode from which the aggravated assault charge arose. The judge did not in any way comment on Mr. Gould’s credibility.
*102
Moreover, in stating his recollection the judge properly warned the jury that its accuracy and the weight to be accorded the evidence were for them to decide. The cases cited by appellant are inapposite, for in each of them the comments by the trial judge were prejudicial to the defendant. In
Commonwealth v. Archambault, supra,
for instance, the judge commented that “I think it would be a miscarriage of justice to find this defendant not guilty.”
And see Commonwealth v. Butler, supra
Gudge engaged in extensive questioning of witness because he found witness’s story incredible);
Commonwealth v. McNeill, supra
Gudge stated opinion as to appropriate degree of guilt);
Commonwealth v. Goins, 457
Pa. 594,
Appellant’s second argument is that the trial judge erred in instructing the jury on the meaning of aggravated assault.
It will be recalled that the jury asked, “Does the charge of aggravated assault arise out of the alleged fact that the defendant pointed a gun at Gould or does it arise out of the alleged fact that the defendant struck Gould?” and that the judge answered, “The answer to both questions is yes, provided the jury also finds that as the result of either or both alleged incidents, first, that they occurred, and secondly, that this was done in an attempt or a threat to cause serious bodily injury to Mr. Gould.” Thus, the judge instructed the jury that if they found that appellant “pointed a gun at Gould ... in ... a threat to cause serious bodily injury . . . ”, they could convict him of aggravated assault. This was error.
The Crime Code defines aggravated assault as follows:
(a) Offense defined.-A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or reck *103 lessly under circumstances manifesting extreme indifference to the value of human life;
(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to a police officer making or attempting to make a lawful arrest;
(3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer making or attempting to make a lawful arrest; or
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.
18 Pa.C.S. § 2702.
The Code defines simple assault as follows:
(a) Offense defined.-A person is guilty of assault if he:
(1) attempts to cause 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. § 2701.
“[Pjointing a gun at Mr. Gould in . a threat to cause serious bodily injury”, could constitute a simple assault as an “attempt[] by physical menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S. § 2701(a)(3).
See Commonwealth v. Trowbridge,
*104 In his opinion filed pursuant to this appeal, the trial judge recognized his error. He refused, however, to grant appellant’s motion for a new trial, reasoning that “no prejudice accrued to [appellant] because his sentence for aggravated assault was made concurrent to his sentences on robbery and burglary.” Lower Court opinion at p. 9. We find ourselves unable to accept this reasoning. Appellant’s criminal record now contains a conviction for aggravated assault. This conviction in itself prejudices him; the fact that he received no extra time in prison because of it does not undo this prejudice. Accordingly, appellant is entitled to a new trial on the aggravated assault charge.
In most cases where there has been a trial error, the grant of a new trial covers all of the charges, for the error taints the entire trial, as, for example, where the prosecutor engages in misconduct, or the jury hears some prejudicial evidence, or the judge comments on the accused’s culpability.
See e. g. Commonwealth v. Heacock,
Here, we believe that the trial judge’s error in defining aggravated assault could not have affected the jury’s verdicts on the other charges. With respect to those charges, therefore, the error was harmless.
See generally, Commonwealth v. Holzer,
Appellant’s convictions of robbery, burglary, and conspiracy are affirmed. His conviction of aggravated assault is reversed and a new trial is granted on that charge.
Notes
. 18 Pa.C.S. § 3701.
. 18 Pa.C.S. § 3502.
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 2702.
. Appellant was also charged with simple assault. At the end of its case in chief, however, the Commonwealth withdrew that charge.
. Appellant argues that the trial judge erred in permitting a police officer to testify with respect to the amount and denomination of the money seized from appellant’s co-defendant. Mr. Bennett testified that included in the money taken from him were five $20 bills and one $100 bill. Officer Michael Gross testified that he had participated in the arrest, and that when he searched appellant’s co-defendant, he found five $20 bills and one $100 bill. Appellant objected and argues on appeal that this testimony was hearsay. This argument is without merit.
. The jury’s verdict that appellant was guilty of an aggravated assault may have been based on the testimony that appellant hit Mr. Gould on the head or face with his revolver. As to whether this action would be sufficient to constitute an aggravated assault,
see Commonwealth v. Alexander,
. So limiting the new trial does not conflict with the established principle that “the grant of a new trial wipes the slate clean of the former trial.”
Commonwealth v. Oakes,