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HomeMy WebLinkAbout91-2197 CriminalCOMMONWEALTH V. LARRY E. CLARK IN RE: IN THE COURT OF COMM PLEAS OF CUMBERLAND COUNTY, PE NSYLVANIA 2197 CRIMINAL 1991 CHARGE: (A) AGGRAVAI D ASSAULT (B) SIMPLE ASSAULT MOTI BEFORE BAYLEY, HESS and OLER. JJ. ORDER OF COURT AND NOW, this 2t day of .Pvo-'%j , 1992, upon c I'nsideration of Defendant's post -verdict motion for a new trial, and of the briefs submitted on the issues raised therein, the motio is DENIED, a presentence investigation report is ordered, and the Defendant is directed to appear for sentencing at the call of the District Attorney. BY THE COURT, JYWesley Oleg Jr., Kimberly Ann Kardelis, Esq. Assistant District Attorney Gregory B. Abeln, Esq. Attorney for Defendant Probation Office :rc COMMONWEALTH V. LARRY E. CLARK OLER, J. IN THE COURT OF COMM CUMBERLAND COUNTY, P 2197 CRIMINAL 1991 CHARGE: (A) AGGRAVA (B) SIMPLE DEFENDANT'S PnST-uRRnTrT MnMT BEFORE BAYLEY, HESS and OLER, JJ OPINION and ORDER OF COURT The present criminal case arises out of an inc on the evening' of November 29, 1991,2 in the Borou Cumberland County, Pennsylvania,' in which one ] badly beaten.' As a result of the incident, Defe pleaded guilty to aggravated assault,' and Defendai ' Commonwealth v. Larry E. Clark, No. 2197 Trial Notes of Testimony 21 (hereinafter N.T. 2 N.T. 19. 3 N.T. 17. N.T. 17. ' N.T. 33-36, 78-82. PLEAS OF SYLVANIA D ASSAULT SAULT nt occurring z of Carlisle, ul Soler' was is brother t, following a iminal 1991, 6 N.T. 286. The brother pleaded guilty tc violation of Section 2702(a)(4) of the Crimes Code, which provides as follows: A person is guilty of aggravated assault if he ... attempts to cause or intentio ally or knowingly causes bodily injury to an then with a deadly weapon .... Act of December 6, 1972, P.L. 1482, S1, as amende , 18 Pa. C.S. §2702(a)(4) (1992 Supp.). Part of a car jack was us d to break the victim's leg in the beating. N.T. 50; Commonwealt 's Exhibit 9, N.T. 227. 2197 Criminal 1991 jury trial, was found guilty of aggravated and si Defendant has filed a post -verdict motion f asserting that the evidence was insufficient to s as to aggravated assault, and that the Court commi error with respect to a requested lesser included an instruction on accomplice liability, and a refu e assault.' a new trial, rt the verdict .ed reversible :fense charge, to grant a demurrer as to aggravated assault.' For the reasonslstated in this Opinion, the motion must be denied. With respect to Defendant's argument that the idence was ' The Defendant was found guilty of violation of Section 2702(a)(1) of the Crimes Code (attempt to cause serious bodily injury to another) and Section 2701(a)(1) of the Crimes Code (attempt to cause or intentional, knowing, or reckle s causation of bodily injury to another). Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. S2702(a)(1) (1992 Supp.); i ., 18 Pa. C.S. S2701(a)(1); N.T. 346, 350-55, 372-73. ' An additional ground for new trial, set forth in the post - verdict motion, was the Court's refusal to instruct the jury that the existence of "circumstances manifesting extreme indifference to the value of human life" was a necessary element of the form of aggravated assault defined as an attempt to cause erious bodily injury. Defendant's post verdict motion, paragraph 3; see Act of December 6, 1972, P.L. 1482, S1, as amended, 18 Pa. C.S. §2702(a)(1) (1992 Supp.). The Court's view was t at the phrase containing the quoted language modified the m re proximate definition of the form of aggravated assault consisting of the actual infliction of such injury. N.T. 365; see Pa. SSJI (Crim) 15.2702A, 15.2702B, (1976). This issue is no pursued in Defendant's brief, and thus understood to be abandonad pursuant to local rule. C.C.R.P. 210-7. 2 2197 Criminal 1991 insufficient to support the verdict as to aggravat4bd assault,9 it has been noted that, "[i]n reviewing the suffi iency of the evidence, the test is whether, viewing the record in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Commonwealth v. Leatherbury, 322 Pa. Super. 222, 226 469 A.2d 263, 265 (1983); see Commonwealth v. Jackson, 506 Pa. 469 485 A.2d 1102 (1984). Viewed in the light most favorable to the Commonwealth, the evidence was that, . after several physical and verbal confrontations, the victim in this case decided tc run from the Defendant and his brother upon seeing the latter br ndishing part of a car jack; he was pursued and caught by the Defe dant and taken to the ground.10 As the Defendant held the victim an the ground, he told his brother to "break his fucking leg, break his fucking leg," while the brother pounded the victim's legs with the implement." In spite of pleas from the victim, the efendant told 9 Although the relief requested in Defendant' post -verdict motion is a new trial, a holding that the evidence wa3 insufficient to support the verdict would warrant an arrest of udgment. See Commonwealth v. Leatherbury, 322 Pa. Super. 222, 469 A.2d 263 (1983); Commonwealth v. Cardona, 316 Pa. Super. 38 , 463 A.2d 11 (1983). to N.T. 17-33. 11 N.T. 34. 3 2197 Criminal 1991 his brother to keep hitting him and the Def endant continued to punch his face.12 Eventually, the Defendant rose and began kicking the victim in his ribs and face.13 The DefendantI5 final words, before leaving the scene with his brother, were, "[ ]hat'll teach you not to fuck with us, nigger, you had enough? ,14 At the conclusion of the beating, the ictim lapsed temporarily into unconsciousness." A neighborhood resident found him trying to get up, with "blood all over his head, his hair, his face, down onto his shirt and everything .... He had a pretty good size hole in his head ... and you could see where his matter and stuff [were] coming out of it.i16 Officer Michael T. Clepper of the Carlisle Borough Police Department arrived on he scene, saw skull in the victim's head wound, verified the dispatch of an ambulance, and stayed at the victim's side becaus "I sincerely thought that there was a chance that [he] wasn't going to make it, meaning that he wasn't going to live ....i17 Ab t this time, Defendant and his brother entered a friend's partment and 12 N. T. 34. 13 N. T. 34. 14 N. T. 34. 15 N. T. 34. 16 N. T. 143. 17 N. T. 210. 4 2197 Criminal 1991 announced that they had "killed the nigger.i18 With a helicopter at University Hospital in rshey, Dauphin County, Pennsylvania, standing by,19 Ricardo C. Calla, a paramedic with the Carlisle Advanced Life Support organizatio , undertook an evaluation of the victim's condition .20 "We knew that he had some serious injuries that we could find right away," Mr. Calla testified .21 He stated: ...Initially he appeared to have a head wound over the left part of his skull. HE had a laceration in the left parietal regioi of the skull, which is pretty much above the left ear. He had a lot of swelling in his left upper arm, some swelling on his side; and hen he had an obvious open fracture to his wer left leg.22 In addition to that, his vital signs were somewhat unstable. His pulse rate was greater than a hundred. It was 120. His blood pressure was 90 over 70. That's low for a normal male adult. So those two things, his heart rate being fast and his blood pressure being a little low, told us that he was in shock for some reason also. 18 N.T. 104. 19 N.T. 67. 20 N.T. 66-67. 21 N.T. 66. 22 With respect to an open fracture, the param that, "[i]f it is an open fracture, that means that the bone broke through the skin.... [I]t is usually amount of force involved to cause that injury, m, closed fracture to disrupt all that tissue. When i fracture, that means a considerable amount of force to inflict that kind of injury." N.T. 66. 5 sdic testified 3t some point, i considerable )re so than a ,e see an open zad to be used 2197 Criminal 1991 He also had some blood coming fron his 24 N.T. nose . ...23 25 N.T. 78-79. The helicopter was called in.21 79. At Hershey Medical Center, Dr. J. Stanle Smith, Jr., responded to the hospital's trauma room at 10:15 p.m., having been advised of an in -coming Life Lion trauma admission .25 At that time, the patient "was presented on a litter on a Back board with a cervical collar in place with evidence of blood about his head and around the areas of his leg. ,211 Dr. Smith's testimony, in part, was as follows: Q Based on your experience and your expertise to a reasonable degree of me ical certainty, do you have an opinion ad to whether or not his injuries were potentially life threatening? A Yes I do. Q What is your opinion? A I believe, based upon a reasonable d gree [o]f medical certainty, that anyone sustaining a blow like that to the head resulting in that kind of a bursting laceration, is in a life 23 N.T. 64. 24 N.T. 67. 25 N.T. 78-79. 26 N.T. 79. A 2197 Criminal 1991 threatening condition.27 Q And again, based on your expertise your opinion to a reasonable degree of mec certainty, could something like Commonwea Exhibit No. 9 [the car jack implement] caused those injuries? in ical th's have A Yes, to a reasonable degree of meical certainty, a blunt object such as that ould have caused these injuries." In Carlisle, police entered an apartment buildihq in the third block of East Pomfret Street ;29 they ascended a staircase containing bloodstains on the wall,30 proceeded i to a dwelling area, 31 and found the Defendant among a large cro d of people. 32 vein: 27 N.T. 80. Mr. Calla, the paramedic, testifi d in a similar Q Mr. Calla, then in your opinion, based on a reasonable degree of medical certainty, were Mr. Soler's injuries potentially serious? A Yes, they were. They were serious, and I would say potentially life threatening. lrhey weren't at the minute; but because of the mechanism involved and some of the things we found on physical exam, there are th ngs obviously that we cannot see on the field, But they certainly were potentially Life threatening; and until proven otherwise we treat them accordingly. N.T. 67-68. 2e N.T. 80. 29 N.T. 192, 206, 211, 215. 30 N.T. 211, 215. 31 N.T. 215. 32 N.T. 211, 215. 7 2197 Criminal 1991 Subsequently, the Defendant's sneakers,33 the blood-stained bottom portions of his trousers,34 the car jack implelent,` and his brother36 were discovered hidden in the apartment. The Defendant was arrested.37 At trial he mai tained that he had acted in self-defense.";The victim survived.39! Aggravated assault, for present purposes,40 onsists of an attempt to cause serious bodily injury to another .4 This offense "does not require proof that serious bodily injur I was inflicted but only that an attempt was made to cause such injury." Commonwealth v. Elrod, 392 Pa. Super. 274, 277, 172 A.2d 1229, 1231, allocatur refused, 527 Pa. 629, 592 A.2d 1291 (1990). "An intent to cause serious bodily injury may be shown by the circumstances surrounding the incident.... The Gond ct giving rise to an inference that defendant intended to inflict Illserious bodily 33 N.T. 193, 195. 34 N.T. 193-94, 216. 35 N.T. 219. 36 N.T. 218. 37 N.T. 212, 218. 3e N.T. 251. 39 The initial appearance of the threat fortunately not proven correct. N.T. 84. 40 See note 7 supra and accompanying text. 4' Act of December 6, 1972, P.L. 1482, §1, §2702(a)(1). 0 of death was 18 Pa. C.S. 2197 Criminal 1991 injury need not itself be life-threatening." Id. a4 277, 572 A.2d at 1231; see also Commonwealth v. Sirianni, 286 Pa. Duper. 176, 428 A.2d 629 (1981). Furthermore, self-defense, whe�e versions of events are in conflict, is generally a matter for the fact -finder. See, e.g., Commonwealth v. Aycock, 323 Pa. Super. 62, 470 A.2d 130 (1983). The defendant argues that the evidence was iisufficient to show (a) the requisite intent on his part for comtission of the offense and (b) the absence of justification for his actions in the form of self-defense.42 However, in view of the fa is as recited above, and the foregoing authority, the Court can not hold that the jury impermissibly found the elements of the offens to have been proven, and the defense of justification disproven, beyond a reasonable doubt.43 With respect to the issue regarding a reg6sted lesser included offense charge, Defendant asserts that "[t]he Court erred in refusing to charge that simple assault 18 Pa. C. .A. 92701 was 42 Brief of Defendant, at 9-11. 43 To the extent that Defendant intended his post -trial motion to be viewed as based upon the weight of the evidence as opposed to its sufficiency, it is noted that "[w]hether a new trial should be granted on [such grounds] is addressed to the sound discretion of the trial court Commonwealth v. Fields, 317 Pa. Super. 387, 396, 464 A.2d 375, 380 (1983). "In determining whether to grant a new trial, the test is ... whether the verdict was so contrary to the evidence as to make the award of a new trial impe ative so that right may be given another opportunity to prevail." Id. The present case is clearly not within the category wa anting a new trial for that reason. 0 2197 Criminal 1991 a lesser -included offense of aggravated assault,) 92702(a)(1)-"44 The instruction proposed at trial as follows: 18 Pa. C.S.A. Defendant was Ladies and Gentlemen, I have instructed you as to the elements of aggravated assault. There has been evidence, and I now ins ruct you, that simple assault dealing with the infliction of bodily injury, even hen attempted with the weapon, is a lessor included offense of aggravated assault. If you find that the Defendant committed si ple assault and negligently caused bodily injury to another with a deadly weapon, you may find that the offense was established by the evidence by the prosecution in place of the charge of aggravated assault where it is alleged that [the Defendant] had attemptel to cause serious bodily injury to Paul Soler, or did cause such injury intentionally knowi gly or recklessly under circumstances manifesting extreme indifference to the value of h an life.45 It is well settled in Pennsylvania that, "[i]f it would be rational, given the evidence of record, for the jU37Y to find the defendant guilty of the lesser offense but notuilty of the greater, the defendant is entitled to have the jury instructed on the law of the lesser offense." Commonwealth v. Fe.rari, 406 Pa. Super. 12, 17-18, 593 A.2d 846, 848 (1981). "The instruction on a lesser included offense is to give the benefit ... of the ... possibility that [the jury guilty of an offense carrying a less severe sentence 44 Defendant's post -verdict motion, paragraph 45 Defendant's Proposed Points for Charge, par 10 purpose of an the defendant ] may find him [than that of L. aph XII. 2197 Criminal 1991 the greater offense]." United States v. Forsythe, 952 (3d Cir. 1979). In the present case, the Court did in fact ins on the law of the lesser included offense of s. because that offense was actually charged.4' The lar in defining the crime was that contained in the Criminal Suggested Standard Jury Instructions.47 the lesser included offense rule was fully met by t as given, and the Court was "not required to accel submitted by counsel verbatim ...." Commonwealth v. 343, 355, 513 A.2d 1371, 1377 (1986), cert. denied, 107 S. Ct. 1617, 94 L. Ed. 2d 801 (1987).48 46 N.T. 350-53. 594 F.2d 947, t the jury assault, employed Pennsylvania 'he purpose of he instruction )t [the point] Smith, 511 Pa. 480 U.S. 951, 47 See Pa. SSJI (Crim) 15.2701, 15.2701A, 15.2 701B, 15.2701E (1976). To the extent that the point requested by Defendant can be construed as a request for a charge on violation of Section 2701(a)(2) of the Crimes Code (simple assault by causation of bodily injury through negligent use of deadly we pon), it was clearly inappropriate. Commonwealth v. Sirianni, 86 Pa. Super. 176, 428 A.2d 629 (1981). No such construction is argued in Defendant's brief. See Brief of Defendant, at 2-4. 48 Defendant appears to argue, for the first time, in his brief on the post verdict motion that one or re incidents preceding the alleged aggravated assault were being prosecuted as simple assault and that, as a consequence, the charga given by the Court on simple assault was unrelated to the matter of aggravated assault. Brief of Defendant, at 2-5. There is no basis for this position as to the theory of the Commonwealth's case in the complaint, the informations, or the prosecutor's remarks. See, e.g., N.T. 331-32. Furthermore, the trial court specifically instructed the jury that "[t]he Defendant has been ch 5irged with two offenses here; one is simple assault, one is aggravated assault, both arising out of the same incident." N.T. 350 (em hasis added). 11 2197 Criminal 1991 With respect to the issue regarding an instruction on accomplice liability, Defendant asserts that "[t]he Court erred in failing to expound on the definition of 'accomplice' and further failed to instruct the jury that to 'aid or agree or attempt to aid' another person in planning or committing this particular offense, the Defendant must be an 'active' partner r participant and that mere presence on the scene is insuffi ient.i49 The instruction proposed at trial by Defendant was as f llows: I have already given you the defini ion of an accomplice. I now tell you tha in order to aid or agree or attempt to aid another person in planning or committing it, one must be an active partner or particip nt. Mere presence on the scene is insufficien .so In both his Proposed Points for Charged and brief on the post - verdict motion,52 Defendant relies upon the case of Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975), to support his position. Several factors militate against granting a new trial based upon the accomplice liability charge. First, "it is well settled that the form of [an] 'accomplice' charge rests within the trial court's discretion and need not contain the exact liLnguage of the 49 Defendant's post -verdict motion, paragraph so Defendant's Proposed Points for Charge, par si Defendant's Proposed Points for Charge, par 52 Brief of Defendant, at 6. 12 aph III. aph III. 2197 Criminal 1991 requested charge. ,53 Second, the instruction gived by the Court, recited in part as follows, was consistent with the statute on the subject,54 employed the wording of the Pennsylvania Criminal Suggested Standard Jury Instructions,55 and was "in substantial accord with" the instruction,proposed:s6 A Defendant does not become an accomlilice merely by being present at the scene or by knowing about a crime. He is an accoml lice if, with the intent of promotion or facilitating commission of the crime he encourages the ... other person to comm' it or aids the other person in planning i or committing it . 57 Third, the language proposed by Defendant, premised upon Fields, as to the necessity of one's being "an active partner or participant" for accomplice liability was an incomplete expression of the case's holding; the rule set forth in Fieldis that "[t]o 'aid or abet' in the commission of a crime one mus be an active 53 Commonwealth v. Darush, 279 Pa. Super. 140, 1071, 1077 (1980), vacated on other grounds, 501 Pa 727 (1983). 54 Act of December 6, 1972, P.L. 1482, §1, 18 55 See Pa. SSJI (Crim) 8.306A (1981). 56 Commonwealth v. Darush, 279 Pa. Super. 140, 1071, 1077 (1980), vacated on other grounds, 501 Pa 727 (1983). 57 N.T. 355. 13 151, 420 A.2d 15, 459 A.2d ?a. C.S. §306. 152, 420 A.2d 15, 459 A.2d 2197 Criminal 1991 partner in the intent to commit it. X58 In this regard, a "court is not bound to give instructions which do not reflect the proper articulation of the law."59 Finally, the present case did not turn upon the "activeness" or "participation" of the Defendant, but upon his state of mind during the, alleged assault and claim of self - def ense.60 With respect to the issue regarding a refu demurrer as to aggravated assault, Defendant asse: Court erred in failing to grant a demurrer to the evidence upon request in regard to the charge assault, in general, and also in regard to the elem such injury' in that no injury was indeed ca specifically, it is contended that reversible erz denial of the demurrer in connection with /A% to grant a s that "[t]he ommonwealth' s >f aggravated .ts of 'causes ;ed. 1161 More occurred in the form of aggravated assault consisting of an attempt to cause serious bodily injury, because accomplice liability can not be predicated upon an attempt, and (b) the form of aggravated assault consisting of " Commonwealth v. Fields, 460 Pa. 316, 319, 33 A.2d 745, 747 (1975) (prior statute) (emphasis added); see Commonw alth v. Brady, 385 Pa. Super. 279, 560 A.2d 802 (1989) (present statute) . 59 Commonwealth v. Holland, 480 Pa. 202, 219, 89 A.2d 1026, 1034 (1978); cf. Commonwealth v. Davis, 282 Pa. Supez. 51, 422 A.2d 671 (1980). 6o Cf. Commonwealth v. Snoke, 525 Pa. 295, 580.2d 295 (1990) (general rule as to requested points on undispu ed issues or inapplicable law). 61 Defendant's post -verdict motion, paragraph 14 2197 Criminal 1991 infliction of serious bodily injury, because no h injury was shown, as eventually conceded by the prosecution, a d the jury may have been confused by evidence of injury tending to support such a charge. 62 For a number of reasons, the Defendant's position as to the demurrer can not be sustained. First, "[w]hen a demi and a defendant proceeds with the case and presents defendant can no longer challenge the order denying Commonwealth v. Burns, 390 Pa. Super. 426, 431, 568 rer is denied a defense, the the demurrer." A.2d 974, 977, allocatur refused, 525 Pa. 616, 577 A.2d 888 (19k). 63 In the present matter, the Defendant proceeded with the cas and presented a defense following the close of the Commonwea th's case -in - chief .64 Second, under such circumstances, "theltrial judge's 62 Defendant's post -verdict motion, paragraph (a), (b); see Brief of Defendant, at 6-9. The prosecution withdrew its contention that Berious bodily injury had actually been inflicted, at the conclusi n of the case, and the Court instructed the jury that "the type of aggravated assault involving actual serious bodily injury is n t before you." N.T. 330-31, 353; see also N.T. 368-71. 63 See 1 Evangelista, Pennsylvania Criminal Tr al Guide §9.02 (1988). 64 N.T. 228-305. It may also be noted, although not intended to be a basis for the Court's decision herein, that under Pennsylvania Rule of Criminal Procedure _1124(a)(1) "a ... demurrer to the evidence presented by the Commonwealth [is to be made] at the close of the Commonwealth's case -in -chief." In the present matte , the demurrer was made during the course of the Defendant's case. N.T. 256. 15 2197 Criminal 1991 ruling on the demurrer can only be regarded as a challenge to the sufficiency of the evidence";65 by "evidence," is meant the evidence "as a whole. ,66 The standard for evaluation of such a challenge, and the Court's resolution of the issue 3f sufficiency as raised elsewhere by Defendant, is set forth here ofore in this Opinion. Third, the arguments advanced by Defendant in c Dnnection with the demurrer are not compelling on the merits. As t D the argument that accomplice liability can not be predicated upcon an attempt, there is no rule that a person can not be an accomplice to aggravated assault in the form of an attempt to ause serious bodily injury .6' As to the argument that evidence of injuries tending to support a conviction for actual infliction of serious bodily injury may have confused the jury in a case ultimately involving only an allegation of attempt to cause su h injury, the law is clear that evidence of such injuries was a issible as to 65 1 Evangelista, Pennsylvania Criminal Trial GILide §9.02, at 102 (1992 Supp.). 66 Commonwealth v. Olds, 322 Pa. Super. 442, 445, 469 A.2d 1072, 1074 (1983). 67 See, e.g., Commonwealth v. Dennis, 313 Pa. SlIper. 415, 460 A.2d 255 (1983) (accomplice charge upheld in CiLse involving aggravated assault in form of attempted inflicti n of serious bodily injury). By Defendant's reasoning, it would not be possible for a person to be an accomplice to an attempt murder, an attempted burglary, or any number of other similarrimes. 16 2197 Criminal 1991 either form of aggravated assault;68 a sustaining demurrer as to the former form of aggravated assault resulted in the evidence's exclusion.69 For the foregoing reasons, the Defendant's post will be denied. ORDER OF COURT AND NOW, thisag/p_1 day of ' 1992, upon c Defendant's post -verdict motion for a new trial, an of Defendant's would not have ct motion sideration of of the briefs submitted on the issues raised therein, the motio is DENIED, a presentence investigation report is ordered, and t e Defendant is directed to appear for sentencing at the call of Attorney. BY THE COURT, J. Wesley Oler; Jr., �. the District 68 Commonwealth v. Dennis, 313 Pa. Super. 415 460 A.2d 255 (1983). 69 It is doubtful that such a bifurcated disposition of the demurrer in this case would have been permissible; in a case involving a charge of simple assault consisting of an attempt to cause bodily injury or actual infliction of such injury, the Pennsylvania Superior Court stated, "We can find no cases in this jurisdiction to support the notion that a statute d scribing, and an information charging the defendant with a single count of simple assault, can be bifurcated for purposes of the defendant's demurrer to the evidence." Commonwealth v. Mott, 372 Pa. Super. 133, 139- 40, 539 A.2d 365, 368 (1988), rev'd on other grounds 522 Pa. 487, 563 A. 2d 1181 (1989) ; see also Commonwealth v. Figari, 51 Lancaster L.R. 377 (1949). 17 2197 Criminal 1991 Kimberly Ann Kardelis, Esq. Assistant District Attorney Gregory B. Abeln, Esq. Attorney for Defendant Probation Office :rc J -A31047/93 COMMONWEALTH OF PENNSYLVANIA ) V. ) IN THE SUPE�IOR COURT OF PENNSYLVANIA LARRY E. CLARK, ) Appellant ) NO. 00842 RISBURG, 1992 Appeal from the Judgment of Sentence in the Court of Common Pleas of Cumberland C unty, Criminal Division, No. 2197 CRIMINAL 11991 BEFORE: ROWLEY, P.J., TAMILIA and POPOVCH, JJ. MEMORANDUM: FILED: luly 22, 1993 Larry E. Clark appeals from the December 1, 1992, twenty- eight (28) to fifty-six (56) month judgment of sentence imposed after a jury found him guilty of simple assaul l and aggravated assault2 as a result of his physical attack on'the victim, Paul Soler. The altercation between Soler and appellaht escalated when appellant's brother3 joined the attack armed W th a tire iron_ As a result of the severe beating by the brother i, Soler was life - flighted to Hershey Medical Center's trauma center with a large, open head wound and an open fracture of his lett leg. Appellant and his brother were arrested at a friend's 'home later that evening. Appellant's sole argument on appeal is the by failing to charge that simple assault is offense of aggravated assault, "as it pertained 118 Pa.C.S. § 2701. 2Id., § 2702. 3Appellant's brother, John Clark, pled guilt fault and is not party to this appeal. 1 rial court erred lesser included to the separate y to aggravated J -A31047/93 and isolated [tire iron] assault that took place between the defendant's brother and the victim, Paul Soler." (Appellant's brief at p. 8.) The instruction was required, appellant argues, because he had been charged, in two separate informations, with the two offenses, simple assault and aggravated assault, both arising from the same incident. The court instructed the jury "the Defenda t has been charged with two offenses here; one is simple assault one is aggravated assault, both arising out of the same inciden ." (N.T., 4/21/92, p. 350.) The court then provided the jurors with separate verdict forms and proceeded to instruct the jury on thE elements of simple aggravated assault, includingt charge the panel assault and agg could find defendant guilty or not guilty of either crime. Id., pp. 350-354. This instruction satisfied the arguable contention4 appellant was entitled by law to separate instructions on 1) aggravated assault as an accomplice and simple assault as a lesser included offense for thE tire iron assault, and 2) simple assault by mutual consent (sel -defense) regarding his initial fist fight with Soler. Appellant has presented this Court with no support, legal or practical, fo the proposition the court was required to repeat its instruction addressing the crime 4A defendant is entitled to a jury charge on a lesser included offense where it is rational, based on the evidence in the record, for a jury to find a defendant guilty of the lesser included offense but not of the greater offense. Comionwealtb v. Ferrari, 406 Pa. Super. 12, 17-18, 593 A.2d at 846, 849 (1991), citing Commonwealth v. Thomas, 376 Pa. Super. 455 459, 546 A.2d 116, 118 (1988). Considering the evidence presented, including the severity of the victim's injuries, it is estionaftheleh ther a lesser - jury could rationally find the appellant guilty o included offense of simple assault. N J -A31047/93 Of simple assault. We find the court accuratel instructed the jury regarding simple assault as a lesser incuded offense of aggravated assault. Based on our review of the record, we find the jury charge was adequate as a matter of law. See Brill v. stems Resources Inc., Pa. Super. , 592 A.2d 1377 (1991). Judgment of sentence affirmed. DATED: July 22, 1993 (JUDGMENT ENTERED Deputy Prothonotary 3