Commonwealth v. Kirkwood ( 1987 )

WIEAND, Judge:

The principal issue in this appeal is whether a simple assault is committed by one who, during a dance, grabs a partner by the arm and swings the partner violently about the dance floor as a result of which the partner sustains bruises and fingernail marks of the arms.

As a result of such an incident, Woodrow W. Kirkwood was tried by a jury and was found guilty of simple assault. Post-trial motions were denied, and the court thereafter suspended a sentence of imprisonment and placed Kirkwood on probation for a period of two years. On direct appeal from the judgment of sentence, Kirkwood argues that: (1) the evidence was insufficient to show bodily injury inflicted intentionally, knowingly or recklessly; (2) the prosecutor improperly interviewed defense witnesses prior to trial; (3) trial counsel was constitutionally ineffective for failing to plead surprise and cross-examine a defense witness after she had given testimony at variance with her pre-trial statement; and (4) after-discovered evidence compelled the granting of a new trial.

Section 2701(a) of the Crimes Code, 18 Pa.C.S. § 2701(a) provides that “[a] person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another____” The term “bodily injury” is defined as an “impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301.

“In reviewing the sufficiency of the evidence, we view all the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the Commonwealth, which has won the verdict.” Commonwealth v. Rivera, 349 Pa.Super. 303, 305, 503 A.2d 11, 12 (1985) (en banc). The evidence in this case included the following.

Paula Sheasley testified that on the evening of August 11, 1984, she, along with her husband, her sister, and her brother-in-law, went to the Greendale Tavern in Cowanshannock Township, Armstrong County, to dance and to get something to eat. At approximately 1:30 a.m. on the following morning, she observed that Kirkwood was also at the tavern. Sheasley was a correctional officer at the Armstrong County Prison, and she knew Kirkwood as a former inmate who was then on parole. Later, while she was dancing a fast dance with the other members of her party, she said, Kirkwood had approached her, had grabbed her by the arm and had begun to swing her violently around the dance floor. Sheasley said that she had pleaded with Kirk-wood to stop because he was hurting her, but that he had continued to swing her until her husband intervened. The incident, she said, lasted approximately forty seconds and left her with bruises and cut marks on her arms. As a result, she testified, she suffered pain in her arms and her right knee for a short period of time thereafter. Her version of the incident was corroborated by her husband, her sister and her brother-in-law.¹

The term “bodily injury” and the definition thereof contained in 18 Pa.C.S. § 2301 have not been considered by the appellate courts of this Commonwealth in the factual context of a strenuous or violent dance. This Court, on two occasions, has concluded in the context of facts constituting the crime of rape that a simple assault occurred (1) when the victim was struck upon the head with an object hard enough to almost knock her unconscious, Commonwealth v. Adams, 333 Pa.Super. 312, 482 A.2d 583 (1984); and (2) when the victim was twice struck across the face from which, a majority of the court concluded, pain could be inferred, Commonwealth v. Jorgenson, 341 Pa.Super. 550, 492 A.2d 2 (1985). These decisions, however, are of little assistance to us as we attempt to apply the simple assault section of the Crimes Code to the facts of the instant case. Of greater assistance are this Court’s decisions in Commonwealth v. Fry, 341 Pa.Super. 333, 491 A.2d 843 (1985), where we held that it was not an assault to put one’s arms about a child and pick her up, and The Interest of J.L., 327 Pa.Super. 175, 475 A.2d 156 (1984), where we held that the act of pushing another away with one’s elbow without evidence of an intent to injure was insufficient to constitute an assault.

The Official Comment to the Pennsylvania Crimes Code suggests that the definition of bodily injury appearing at 18 Pa.C.S. § 2301 was derived from Section 210.0 of the Model Penal Code. The Comment to the Model Penal Code, in turn, suggests that the definition of “bodily injury” was based on section 10.00 of the crimes code of New York. See: Toll, Pennsylvania Crimes Code Annotated § 2301 (1974 ed.). Therefore, we look also to decisions of the courts of New York, where we are able to find additional guidance. In interpreting the crimes code of New York, the courts of that state have held that petty slaps, kicks and shoves do not amount to “bodily injury.” In re Philip A., 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980). In the absence of evidence of physical impairment, moreover, testimony that the alleged victim sustained a very sore neck was insufficient to show that she had suffered the requisite bodily injury or substantial pain. People v. Hargrove, 95 App.Div.2d 864, 464 N.Y.S.2d 224 (1983). And where there was a swelling and a red mark on the victim’s face, this was held insufficient as a matter of law to establish “impairment of physical condition or substantial pain.” In re Philip A., supra. Also, a one centimeter cut above the lip, without more, was held to be inadequate to show that the alleged victim had suffered either “substantial pain” or “impairment of physical condition.” People v. Jimenez, 55 N.Y.2d 895, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982). Finally, an incidental reference to a blackened eye without any development of its appearance, seriousness, accompanying swelling, or suggestion of pain was held insufficient in People v. McDowell, 28 N.Y.2d 373, 321 N.Y.S.2d 894, 270 N.E.2d 716 (1971). On the other hand, a punch in the nose, even where the victim has missed no time from work, wás held adequate to show bodily injury in People v. Chesebro, 94 App.Div.2d 987, 463 N.Y.S.2d 711 (1983); and a kick in the stomach, even though not requiring medical attention, was held to be sufficient to show bodily injury within the statutory definition in In re Parks, 78 Misc.2d 281, 356 N.Y.S.2d 440 (1974).

The New York decisions, of course, are not binding upon us in our quest to ascertain the intent of the legislature in this Commonwealth. Nevertheless, the prior decisions in New York and the prior decisions of this Court suggest that the assault section of the Crimes Code was’ intended to protect and preserve one’s physical well being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modern day living. See: Interest of J.L., supra, 327 Pa.Super. at 178, 475 A.2d at 157. (“... it is difficult to attach criminality to the pushing, shoving, slapping, elbowing, hair-pulling, perhaps even punching and kicking, that frequently occur between siblings or other members of the same family.”). The Pennsylvania legislature, in recognition that not all physical contact constituted an assault and in an attempt to close any loophole which remained by virtue of the definition of assault, created the summary offense of harassment, which it defined to include a situation in which “[a] person ... with intent to harass, annoy or alarm another person: (1) ... strikes, shoves, kicks or otherwise subjects him to physical contact, or attempts or threatens to do the same....” 18 Pa.C.S. § 2709.

In the instant case, the defendant’s uninvited attentions and violent dancing, according to the victim, caused bruises and slight cuts on her arms, and her right knee and arms hurt as a result of the manner in which appellant swung her during the dance. There was no evidence that she had consulted a physician or that she had lost time from work. We conclude that this evidence was insufficient to establish either the “physical impairment” or the “substantial pain” which is necessary to prove the crime of criminal assault as defined in 18 Pa.C.S. § 2701. Temporary aches and pains brought about by strenuous, even violent, dancing are an inadequate basis for imposing criminal liability upon a dance partner for assault. Appellant’s invitation to the dance, even if uncivil and harassing, was not assaultive within the meaning of the statute.

The judgment of sentence is reversed, and appellant is discharged.²

CAVANAUGH, J., files a concurring opinion. JOHNSON, J., files a dissenting opinion.

1 . Kirkwood denied that an assault had occurred. The defense contended that the charge was false and that criminal proceedings had been instituted in retaliation for a civil action which Kirkwood had filed against the warden of the Armstrong County Prison. Although conceding his presence at the dance and that he had danced with Paula Sheasley, his testimony was sharply at variance with the Commonwealth’s version. He testified that while dancing a slow dance with Golda Elkin, Sheasley had cut in and asked him to dance with her. Kirkwood, according to the defense version, had agreed and had left his date standing on the dance floor. The dance had been completed, he said, without incident. His testimony was corroborated by Edna Kilgore, who had been seated at the same table with Kirkwood and others. It was also confirmed in part by Golda Elkin. She surprised the defense, however, by testifying that Kirkwood had rejected Sheasley’s invitation to dance and had continued to dance with her. It was defense counsel’s failure to plead surprise and cross-examine Golda Elkin regarding contradictory pre-trial statements which gave rise to Kirkwood’s contention that trial counsel was constitutionally ineffective. It was Golda Elkin’s post-trial admission that her testimony had been incorrect and that Kirkwood, in fact, had accepted Sheasley’s invitation to dance which was the after-discovered evidence upon which the motion for new trial was based.

2 . Although our decision makes it unnecessary to decide the arguments advanced by appellant in support of a new trial, we have nevertheless reviewed the same and find that they were correctly decided by the learned trial judge.