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HomeMy WebLinkAbout01-2403 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. STEPHEN PATRICK THOMPSON 01-2403 CRIMINAL TERM IN RE: MOTION FOR JUDGMENT OF ACQUITTAL BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 28, 2002:-- Defendant, Stephen Patrick Thompson, was charged with aggravated assault on a police officer (Corporal Kenten McCey),1 resisting arrest,2 simple assault (on Tara Hedge),3 and summary harassment (of Tara Hedge).4 On May 7, 2002, a jury found defendant guilty of aggravated assault and resisting arrest. It found defendant not guilty of simple assault. The court found defendant not guilty of harassment. Pursuant to Pa.R. Crim. P. 704(B), defendant, following the announcement of the verdicts, filed an oral motion for extraordinary relief in the form of a motion for judgment of acquittal on 1 18 Pa.C.S. § 2702(a)(3). : 18 Pa.C.S. § 5104. 3 18 Pa.C.S. § 2701(a)(1). 4 18 Pa.C.S. § 2709(a)(1). 01-2403 CRIMINAL TERM the charge of aggravated assault.5 The motion was followed up by a similar written motion on May 10, 2002. The evidence at trial, in a light most favorable to the Commonwealth, was as follows. On November 13, 2001, Tara Hodge reported to the Carlisle Police that she had just been assaulted by defendant, Stephen Patrick Thompson, in her apartment at 137 North West Street, Carlisle. The police responded to the scene, and after completing their investigation, contacted defendant's probation officer, David Bennett. Based on the information he received from the police, Bennett, with three Carlisle Police Officers, went to defendant's apartment in Carlisle to arrest him for violating his parole. Defendant allowed the officers into his apartment. Corporal Kenton McCoy stood in the open front doorway as Bennett and the other officers entered a living room where Bennett told defendant that he was under arrest. Bennett started to handcuff defendant, but defendant bolted. He charged at Corporal McCoy, and barreled into his chest with his head. McCoy testified that he had a protection vest on, but it "still hurt." Rule 704(B), provides: Oral Motion for Extraordinary Relief. (1) Under extraordinary circumstances, when the interests of justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment, for a judgment of acquittal, or for a new trial, (2) The judge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it, (3) A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal, -2- 01-2403 CRIMINAL TERM He grabbed defendant, keeping ahold of the top of him, as the force of defendant backed them down a landing onto a sidewalk. Another officer, Corporal Michael Dzezinski, then struck defendant in the knee, with his knee, which sent defendant to the ground. Officers Dzezinski, Stephen Latshaw, and McCoy wound up on the ground on top of defendant. Defendant struggled, but he did not strike at or kick at the officers. He was quickly cuffed and brought under control. Corporal McCoy, who is about 5 feet, 8 inches tall, and weighs over 250 pounds, did not suffer any bodily injury.6 DISCUSSION The Crimes Code at 18 Pa.C.S. Section 2702, provides: (a} Offense defined.--A person is guilty of aggravated assault if he: (3) attempts to cause or intentionally, knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty. (Emphasis added.) Subsection (c)(1) enumerates a police officer. "Bodily injury" means "Impairment of physical condition or substantial pain." 18 Pa.C.S. § 2301. Section 901 of the Crimes 6 Defendant testified that when Bennett and the police came to his home, he let them inside. Bennett then told him that he was under arrest. As Bennett grabbed his left hand to handcuff him, he reached for the door latch, bolted through the door, and bumped into Officer McCoy. Defendant is 48 years old, 5 feet 11 inches tall, and 205 pounds. He testified that he panicked, and that he acted on impulse in wanting to get out of the apartment and get away from the officers. He testified that he thought he could get around Officer McCoy, and that he was not trying to hurt him in any way. He denied ramming his head into Officer McCoy's chest. He testified that his contact with McCoy was with his shoulder, and that his head wound up under McCoy's arm as they went down the steps and out onto the sidewalk. -3- 01-2403 CRIMINAL TERM Code provides that: A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. (Emphasis added.) In seeking a judgment of acquittal, defendant maintains that there was insufficient evidence for the jury to conclude beyond a reasonable doubt that he attempted to cause bodily injury to Corporal McCoy. He relies on Commonwealth v. Wertelet, 696 A.2d 206 (Pa. Super. 1997). In Wertelet, two state troopers arrested the defendant. The defendant struggled with the troopers and kicked one of them in the shin area twice. The troopers then handcuffed the defendant. Defendant was convicted, inter alia, of aggravated assault on a police officer. The Superior Court of Pennsylvania reversed that conviction, stating: Although not necessarily controlling, the connotation of bodily injury, a sort of common person understanding of the term, suggests a physical event unlike those commonly occurring in normal life which, although unpleasant and somewhat painful, do not seriously interrupt one's daily life. It is not disputed that physical resistance can be severe enough to satisfy the elements of a more serious offense, i.e., aggravated assault. However, there is really no justification apart from overzealousness to apply the section so as to subsume the crime of resisting arrest and/or other lesser offenses. The natural implication of having a provision for resisting arrest and aggravated assault of a police officer is to differentiate criminal conduct according to its severity and provide appropriate punishment for that conduct. However, an equally natural and logical implication of having a provision for resisting arrest and aggravated assault of a police officer is the recognition that they are not one of the same thing. That is, that there are physical acts of resistance -4- 01-2403 CRIMINAL TERM which do not rise to the level of an aggravated assault. If appellant's conduct is considered to be an aggravated assault it is difficult to imagine an instance of resisting arrest which will not also be an aggravated assault as almost all acts of resisting arrest are likely to involve some physical resistance which will cause an officer some physical pain or discomfort. Further, as the name of the offense implies, aggravated assaults are assaults of a rather serious nature. The Superior Court concluded: We believe the above examples are on par with the nature of the affront committed here by appellant. There is no evidence that appellant reared back and kicked Trooper Funk as hard as she could. Indeed, she kicked him with the back of her heel as she was flailing about and squirming while the troopers attempted to handcuff her. Trooper Funk was not seriously impaired by the kicks, he was able to continue working, and he did not report even any bruising or swelling. Trooper Funk's characterization of the pain as similar to "bumping your shin on a coffee table" aligns the encounter with those described above and does not fall within the general connotation of the terms "injury." Further, it hardly seems consistent with the concept of aggravated assault, an assault of a severe nature, but does seem to fall neatly into the general concept of resisting arrest, harassment or, possibly, simple assault. For all the above reasons we believe the evidence was insufficient to prove that Trooper Funk experienced a "bodily injury" within the meaning of the statute. Consequently, the evidence was insufficient to sustain the conviction for aggravated assault. (Footnotes omitted.) In support of its position that defendant's motion for a judgment of acquittal should be denied, the Commonwealth cites Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000). In Petaccio: Philadelphia Police Officer Mary Drescher, while responding to a radio call, observed appellant hitting an unidentified female and dragging her by her hair toward his vehicle. Appellant released the woman and began running down a nearby driveway, with Officer Drescher in pursuit. Appellant subsequently attempted to hide from the officer. With weapons drawn, Officer Drescher demanded that appellant show his hands, and he slowly obliged. As Officer Drescher attempted to re-holster her weapon, -5- 01-2403 CRIMINAL TERM appellant began running toward her. She grabbed him and he punched her in the jaw. Appellant attempted to run toward his vehicle, but Officer Drescher grabbed his coat and informed him that he was under arrest. While the officer tried to subdue appellant, another officer arrived and provided assistance. During the ensuing fracas, appellant kicked Officer Drescher in the stomach. The two officers repeatedly tried to restrain appellant, but it was only after a third officer arrived on the scene that appellant was placed into custody. In affirming a judgment of sentence for aggravated assault on a police officer in violation of Section 2702(a)(3) of the Crimes Code, the Superior Court of Pennsylvania, distinguishing Commonwealth v. Wertelet, supra, stated: It is clear that appellant's behavior was more egregious than "relatively harmless physical contact with a police officer." It is likewise clear that appellant's victim suffered a more severe injury than the police officer in WeRe/et. Officer Drescher testified that she experienced pain and bleeding from appellant's closed-fist punch to her jaw. And although the officer did not testify to any pain she experienced as a result of appellant's kick, such conduct clearly constitutes an attempt to inflict bodily injury. We hold that a punch to the face of an officer, accompanied by a kick to her stomach, is the very type of conduct prohibited by § 2702(a)(3). See Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995) (bodily injury proved where defendant punched police officer in the face). It is apparent from the record that the Commonwealth presented sufficient evidence to establish that appellant violated § 2702(a)(3). (Emphasis added.) The Commonwealth also cites Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). In Marti, a police officer responded to a domestic dispute. The defendant was present, and when the officer tried to find out what the problem was, the defendant became very upset and angry. The officer tried to calm him but he became more aggressive. The defendant then lunged forward with his right fist and struck the -6- 01-2403 CRIMINAL TERM officer on the left lower jaw. Relying on Commonwealth v. Wertelet, supra, the trial court, holding that there was no prima facie evidence of bodily injury, dismissed a charge of aggravated assault on a police officer in violation of Section 2702(a)(3) of the Crimes Code. The Superior Court of Pennsylvania reversed, stating: We refuse to equate a deliberate punch in the face causing swelling and pain with a mild kick to the shins delivered while resisting arrest, which the victim [in Wertelet] described as similar as bumping into a coffee table. Additionally, we agree with the Commonwealth that even if there was no showing of a bodily injury this charge should still have been submitted to the jury as an attempt to cause bodily injury. As is the case with simple assault under § 2701 (a)(1) "[t]he Commonwealth need not establish that the [officer] actually suffered bodily injury; rather, it is sufficient to support a [prima facie case] if the Commonwealth establishes an attempt to inflict bodily injury." See [Commonwealth v. Richardson, 431 Pa. 496 (1994)]. "This intent may be shown by circumstances which reasonably suggest that a defendant intended to cause injury." Id. (citing Commonwealth v. Polston, 420 Pa. Super. 233, 616 A.2d 669 (1992), appeal denied, 534 Pa. 638, 626 A.2d 1157 (1993)). In [Commonwealth v. Petaccio, 764 A.2d 582 (Pa. Super. 2000)], in addition to punching the officer in the mouth, which we found constituted bodily injury, the assailant also kicked the officer in the stomach. We acknowledged this conduct alone "clearly constitutes an attempt to inflict bodily injury" and "is the very type of conduct prohibited by § 2702(a)(3)." Id. 764 A.2d at 586. Accordingly, we hold the evidence presented by the Commonwealth at the hearing below was clearly sufficient to establish a prima facie case against the Appellee. Based on the foregoing, the Order of the trial court is reversed, the charge is reinstated and the case is remanded for trial. (Emphasis added.) In the case sub judice, the evidence shows that defendant, in trying to evade being taken into custody by Officer Bennett, charged from a short distance at Officer -7- 01-2403 CRIMINAL TERM McCoy with his head down so that he could get out of the doorway that McCoy was blocking. While the force of that contact was sufficient to cause some momentary pain to Officer McCoy, and to move him out of the doorway and down a landing onto the sidewalk, it did not (1) knock him over, or (2) prevent him from grabbing ahold of defendant and keeping a grip on him. Defendant never punched or kicked Officer McCoy or any other officers as he was knocked to the ground and quickly cuffed and brought under control. The Commonwealth argues that the force used by defendant in running into Corporal McCoy with his head down was sufficient to prove beyond a reasonable doubt that he attempted to cause bodily injury to Officer McCoy, i.e., impairment of physical condition or substantial pain. That would mean, under Section 901 of the Crimes Code, that defendant intended to cause bodily injury to Officer McCoy. A person acts intentionally with respect to a material element of an offense if "it is his conscious object to engage in conduct of that nature or to cause such a result." 18 Pa.C.S. § 302(b)(1)(i). When viewed in a light most favorable to the Commonwealth, the evidence, while clearly sufficient to prove beyond a reasonable doubt that defendant resisted arrest, was insufficient to prove beyond a reasonable doubt that defendant acted with the requisite mens rea for an attempted aggravated assault on a police officer. The circumstances were not such which reasonably suggested that defendant intended to cause bodily injury to Officer McCoy. Thus, there was insufficient evidence for the jury to draw that inference. The facts are comparable with those in Commonwealth v. Wertelet, supra, and distinguishable from those in -8- 01-2403 CRIMINAL TERM Petaccio and Marti. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of May, 2002, the motion of defendant for a judgment of acquittal on the count of aggravated assault, IS GRANTED. By the Court, Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire For the Commonwealth Aria M. Waller, Esquire For the Defendant Christine Sheaffer, Probation Officer :saa -9-