Commonwealth v. Matthews , 2005 Pa. Super. 92 ( 2005 )

CONCURRING AND DISSENTING OPINION BY

KLEIN, J.:

¶ 1 I agree with the majority that the conviction for aggravated assault on victim George Wachter should be affirmed. However, I reach this conclusion by finding that the facts of the instant case are distinguishable from the factual scenarios found in Mayo and Repko and are more like those in Gruff.

¶ 2 As the facts are distinguishable, it is proper to sustain the convictions without overruling Mayo and Repko. Therefore, the continued validity of those cases is not squarely before us and it is essentially dictum to say that they were incorrectly decided. As the Mayo principle has been the law for twenty-five years, I do not think it appropriate to reverse it in what turns out to be dictum.

¶ 3 I also see no need to remand for resentencing. No one raised the problem of these “suspended sentences,” so I would not address the issue, and even if I were to address the issue I would merely vacate the sentences, since the judge either meant “guilty without further penalty” or the sentence was illegal.

1. Mayo should be distinguished, not overruled.

Mayo and Repko are distinguishable from Gruff. Mayo and Repko discuss the situation where there is merely a pointing of a weapon and threats, with no major injury caused. The Defendant then abandons the assault on his or her own with nothing intervening. In this circumstance, generally there is not enough to conclude that the defendant intended to cause serious bodily harm rather than merely scaring the victim. In Mayo, while there were minor scratches on the victim’s chest, these scratches were considered to be more a part of a threat to facilitate the rape than an attempt to commit bodily injury with a deadly weapon.⁵ No outside factor stopped Mayo from carrying out the threat. Likewise, there was nothing to stop Repko from shooting the police officer. He just did not pull the trigger.

¶ 4 The distinction in Gruff is that after Gruff placed a bayonet against the victim’s neck and made a threat, the victim escaped. The Court said the fact that Gruff did not shoot the victim as he ran away did not eliminate the possibility that he had the requisite intent but it was thwarted when the victim escaped.⁶

¶ 5 In Gruff, the majority authored by Judge Maureen Lally-Green laid out a logical four-prong test to determine whether or not intent to cause serious bodily injury can be inferred beyond a reasonable doubt.

First, the resolution of each case is the function of the circumstances of the case as determined by the factfinder.

Second, a substantial step for purposes of aggravated assault — attempt under §§ 2702(a)(1) or (a)(4) can involve little or no injury to the victim.

Third, we view all the evidence in the light most favorable to the verdict winner, giving that party the benefit of all reasonable inferences to be drawn therefrom.

Fourth, with respect to the intent requirement of each section, we examine the defendant’s words and conduct to determine whether the record supports a finding of the requisite intent.

822 A.2d at 779-80 (citations omitted).

¶ 6 In the instant case, the factfinder did determine that there was sufficient evidence to infer intent from the use of a weapon, coupled with threats and other circumstances. Like Gruff, the defendant was interrupted, first by another motorist coming by, and second, by the fact that the victim was on a cell phone trying to reach the police before Matthews fled. Moreover, the fact that Matthews could be viewed as trying to run over the security officer as he drove his car from the Mall supports a finding that Matthews was certainly willing to cause injury in the course of this criminal activity and so intended to inflict serious bodily injury on Wachter. The intent was simply thwarted by the arrival of the other motorist and Wachter’s use of the cell phone.

¶ 7 I would therefore affirm on the basis that this case is distinguishable from Mayo and Repko and other cases where a defendant was not interrupted in his criminal activity. I also believe that the Gruff test is a good one and that under that test, the convictions for aggravated assault can logically be affirmed in Gruff (and the instant case) but not in Mayo and Repko. Because the results of Mayo and Repko would not be altered under the Gruff analysis, I see no irreconcilable approaches between Mayo and Gruff, and so I see no need to overrule Mayo.

¶ 8 Although I differ from the majority in my approach and analysis of this issue, I agree with the outcome. Accordingly, I concur with the majority on this point.

2. There is no need to remand the other four charges for resentencing.

¶ 9 In this case it seems that the distinguished trial judge, Judge Gwendolyn N. Bright, was following the common practice of many judges by saying “sentence suspended” while meaning “guilty without further penalty.” While technically improper, this nomenclature has been common in Philadelphia County for at least thirty years.⁷ Otherwise, such a sentence would be illegal as an indefinite suspended sentence.

¶ 10 I agree with the statement made twenty years ago in Commonwealth v. Tessel, 347 Pa.Super. 37, 500 A.2d 144, 153 (1985), in the concurring opinion of Judge Phyllis Beck in a similar situation. She said:

Use of suspended sentences in this Commonwealth has been subject to varying interpretations. In my view it would be best to have the issue squarely before the court and briefed before determining whether to abandon its use ... I therefore would refrain from deciding the issue since it was not raised by the parties.

¶ 11 Were I to reach the issue, I would simply vacate the sentence and not suspend it. That is what the majority did in Tessel, supra. In a footnote, the majority pointed out that either the trial judge intended to impose guilt without penalty, which is permitted, or imposed an indefinite suspended sentence, which is illegal.⁸ In either case, it is not necessary or proper to sentence again on these charges.

¶ 12 Therefore, I concur in affirming the conviction for aggravated assault and dissent from the order remanding the other four charges for resentencing.

5 . Definition of aggravated assault, 18 Pa.C.S. § 2702(a)(4).

6 . One possible explanation is that a gun shot can be heard, thus drawing attention to the perpetrator, while stabbing or cutting someone with a bayonet makes no sound.

7 . I shudder to think of how many such illegal sentences I imposed in my 28 years as a trial judge in Philadelphia.

8 . In the footnote, the majority stated, "Moreover, a trial court that imposes a "suspended sentence” may mean to impose one of two entirely different penalties. The court may mean to impose "indefinite probation,” which, because it is not a sanctioned alterna-five, must be vacated. (citation omitted) Or the court may mean to impose 'guilt without further penalty,’ which is a sanctioned penalty. We should not be required to remand to the trial court to determine what sentence was intended.” 500 A.2d at 152, fn. 14.