Commonwealth v. Magnelli , 348 Pa. Super. 345 ( 1985 )

OPINION OF THE COURT

ROWLEY, Judge:

Appellee was convicted by a jury of aggravated assault¹ and obstructing administration of law or other governmental function.² The trial court arrested judgment on the aggravated assault conviction and the Commonwealth has appealed from that Order.

In alleging that the trial court erred, the Commonwealth presents two arguments. First, the Commonwealth argues that there was sufficient evidence to support a finding that the victim sustained serious bodily injury. Second, the Commonwealth argues that the trial court erred when it found that the Commonwealth failed to prove the element of specific intent because specific intent need not be proved when serious bodily injury has actually been inflicted.

Appellee has not presented a brief to this Court.

The trial court granted appellee’s motion in arrest of judgment because “the actions of [appellee], under the circumstances, did not measure up to an attempt to cause serious bodily injury under circumstances manifesting an extreme indifference to the value of human life.” Trial court’s opinion at 5-6 (emphasis in original). The trial court analogized appellee’s act to an isolated shove, or the act of throwing someone to the ground and found that the connection between the officer’s injuries and appellee’s “acts is so attenuated that this court feels that the result was in no way within the intent or contemplation of [appellee].” Id. at 6.

In reviewing the trial court’s order

we must examine all the evidence in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). The standard used in our evaluation is ‘[w]hether accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed the jury could properly have based its verdict; it would be nonetheless insufficient in law to find beyond a reasonable doubt that the appellee is guilty of the crime charged.’ Commonwealth v. Froelich, 458 Pa. 104, 106, 326 A.2d 364, 365 (1974).

Commonwealth v. Pandolfo, 300 Pa.Super. 447, 448-449, 446 A.2d 939, 940 (1982) (citations omitted). In reaching its conclusion, the trial court assumed, for purposes of its opinion, that the victim’s injuries amounted to “serious bodily injury” as defined under 18 Pa.Cons.Stat. § 2301. Id. at 5.

The record reveals that on May 17, 1982, Sharpsburg Borough Police Officers Rudzki and Lang responded to a reported domestic disturbance at 920 Penn Street in Sharps-burg. (R.R. 36A.) Upon arriving at the scene, the officers confronted Anthony Magnelli, Jr., appellee’s brother and co-defendant, as he exited from the residence to which the officers had been directed. Anthony swore at the officers, challenged them to fight him, and swung his fist at Officer Rudzki, who ducked. (R.R. 91A-92A.) Anthony then ran across the street in front of the residence; as he ran, his father came up the street and, in an attempt to restrain his son, forced him to the ground adjacent to concrete steps that led to a nearby residence.

The officers approached the Magnellis and informed Anthony that he was under arrest for disorderly conduct. (R.R. 40A.) While Anthony’s father sat on Anthony’s legs, the officers kneeled on either side of Anthony and attempted to handcuff him. A scuffle ensued during which Anthony gained control of Officer Rudzki's nightstick and began to flail it at the officers. As the officers crouched over Anthony, appellee came up from behind Officer Rudzki, grabbed the officer by his shirt and pants, picked him up, and threw him forward and into the nearby concrete steps. The officer struck the steps with his right collar bone.

Appellee fled across the street and Officer Rudzki called out to another officer who had just arrived on the scene, “Mike, grab him. That is the man who pushed me.” (R.R. 44A.) After a short chase, appellee was apprehended and placed under arrest. (R.R. 110A.)

As a result of the incident, Officer Rudzki suffered a fractured collar bone which required surgery and the insertion of a pin in order to properly set the fracture. (R.R. 191, 196A.) The officer underwent physical therapy for approximately 5 weeks and missed work for approximately 4 months. From the time of the injury until treatment was completed, he was substantially unable to use his right arm. (R.R. 52A, 199A.)

Where an attempt is made to commit aggravated assault, or where the victim does not sustain serious bodily injury, the Commonwealth is required to prove specific intent. Commonwealth v. Grassmyer, 266 Pa.Super. 11, 16 n. 1, 402 A.2d 1052, 1054 n. 1 (1979). However, where serious bodily injury is inflicted, the Commonwealth is not required to prove a specific intent; this is because aggravated assault may be proven if the defendant acted recklessly. Id.; 18 Pa.Cons.Stat. § 2702. In the present case, it is conceded that serious bodily injury was inflicted. Trial court’s opinion at 5. Thus, we need not address the Commonwealth’s first argument.

As to the Commonwealth’s second argument, we disagree with its characterization of the trial court’s finding. The trial court emphasized that it arrested judgment because the Commonwealth had failed to produce sufficient evidence that appellee acted “under circumstances manifesting an extreme indifference to the value of human life.” Trial court’s opinion at 6 (emphasis in original). Although the trial court’s opinion does contain references to “intent,” the trial court does not base its Order upon a finding that there was insufficient evidence of appellee’s “specific intent”; and, we do not find that the record compels us to infer otherwise. In ruling as it did, the trial court only found that there was insufficient evidence from which the finder of fact could infer the requisite state of mind.

Having reviewed the record, we agree with the trial court that the evidence was insufficient to establish that appellee acted recklessly under circumstances manifesting an extreme indifference to the value of human life. Therefore, we affirm.

Order affirmed.

OLSZEWSKI, J., files a dissenting opinion.

1 . 18 Pa.Cons.Stat. § 2702(a)(1).

2 . 18 Pa.Cons.Stat. § 5101.