Commonwealth v. Gruff

822 A.2d 773, 2003 Pa. Super. 126, 2003 Pa. Super. LEXIS 444

• Court: Superior Court of Pennsylvania
• Decided: March 27, 2003
• Status: Published

Opinions

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellant, John A. Gruff, appeals from the judgment of sentence entered on November 9, 2000. We affirm.

¶ 2 Our review of the record reflects the following. Timothy McCrone, Appellant’s neighbor, testified that Appellant accosted him on March 8, 2000. N.T., 10/23/00, at 27, 30-32. McCrone testified that, as he was walking home from a neighbor’s house, Appellant grabbed him from behind, and brought a loaded rifle equipped with a bayonet up toward him until the blade was touching McCrone’s neck. Id. at 30-32. McCrone testified that Appellant stated, ‘You’re one of them, ain’t you?” Id. at 32. Appellant then repeated the phrase one or two more times and then added, “I just ought to kill you.... Do you want to die today or tomorrow?” Id. McCrone responded that he did not want to die at all. Id. After a few moments, when he no longer felt the bayonet touching his neck, McCrone escaped and ran into the woods. Id. at 33. Appellant made no attempt to hold onto McCrone or fire a shot at him while McCrone ran off. Id. McCrone ran to a neighbor’s house and called his wife to get him. Id. McCrone reported the incident to the Pennsylvania State Police. Id. at 34.

¶ 3 On October 23, 2000, a jury convicted Appellant of aggravated assault (two counts), simple assault, driving under the influence of alcohol to a degree which rendered Appellant incapable of safe driving, terroristic threats, recklessly endangering another person, and possession of an instrument of crime.¹

¶ 4 Appellant was sentenced on November 9, 2000, to 5 to 10 years on one count of aggravated assault with a merger of the sentences for the other count of aggravated assault, simple assault, terroristic threats, and recklessly endangering another person. Appellant was sentenced to 2\ to 5 years on the possession of firearm by convicted felon, and a five-year period of probation for possessing an instrument of crime. Appellant received a sentence of 30 days to 2 years for the driving under the influence conviction.

¶ 5 Appellant filed a timely motion to reconsider sentence, which was denied. No appeal followed. On May 8, 2001, Appellant filed a PCRA petition alleging that counsel had neglected to file a notice of appeal. On May 11, 2001, by order of court, Appellant’s right to a direct appeal was restored. This appeal followed.

¶ 6 Appellant raises three issues on appeal:

1.Did the Commonwealth prove beyond a reasonable doubt that Appellant committed attempted aggravated assault when the evidence did not show that he made a threat of immediate harm and took a substantial step toward injuring the victim while holding him for a matter of seconds or when the victim ran away?

2. Did the Commonwealth present sufficient evidence to prove beyond a reasonable doubt that Appellant was driving under the influence to a degree which rendered him incapable of unsafe driving when there was no evidence of erratic driving or of conduct indicating intoxication?

3. Did the trial court abuse its discretion when it did not sustain defense counsel’s objection to the prosecutor’s highly inflammatory comment to the jury during closing arguments by giving a curative instruction or declaring a mistrial?

Appellant’s Brief at 3.

¶ 7 Appellant first asserts that the evidence was insufficient to support his convictions for aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) and (4).² Appellant complains that the Commonwealth did not prove that he made a threat of immediate harm and took a substantial step toward injuring the victim.

¶ 8 Our standard of review for a challenge to the sufficiency of the evidence is well settled. We must 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. Commonwealth v. Torres, 564 Pa. 219, 766 A.2d 342, 344 (2001). Additionally, it is not the role of an appellate court to weigh the evidence or to substitute our judgment for that of the fact-finder. Commonwealth v. Vetrini, 734 A.2d 404, 407 (Pa.Super.1999).

¶ 9 Aggravated assault is defined in 18 Pa.C.S.A. § 2702. Sections 2702(a)(1) and (a)(4) provide as follows: (a) Offense defined. — A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;...

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; ...

18 Pa.C.S.A. §§ 2702(a)(1) and (a)(4). Also, the following terms are defined in 18 Pa.C.S.A. § 2301:

“Bodily injury.” Impairment of physical condition or substantial pain

“Serious bodily injury.” Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

“Deadly weapon.” Any firearm, ..., or any device designed as a weapon and capable of producing death or serious bodily injury...

For aggravated assault purposes, an “attempt” is found where the accused, with the required specific intent, acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another. Commonwealth v. Galindes, 786 A.2d 1004, 1009 (Pa.Super.2001), appeal denied, 569 Pa. 691, 803 A.2d 733 (2002). As our Court has previously stated:

As intent is a subjective frame of mind, it is of necessity difficult of direct proof[.][W]e must look to all the evidence to establish intent, including, but not limited to, appellant’s conduct as it appeared to his eyes[.] Intent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances.

Commonwealth v. Roche, 783 A.2d 766, 768 (Pa.Super.2001), appeal denied, 568 Pa. 736, 798 A.2d 1289 (2002).

¶ 10 First, we address the standards applicable to the attempt segment of 18 Pa.C.S.A. § 2701(a)(1). Attempt in this context is demonstrated by proving that the accused acted in a manner which constitutes a substantial or significant step toward perpetrating serious bodily injury upon another along with the intent to inflict serious bodily injury. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). The Alexander Court made clear that an attempt under § 2701(a)(1) requires a showing of some act, albeit not one causing serious bodily injury, accompanied by an intent to inflict serious bodily injury. Id. at 889.

¶ 11 In Alexander, the defendant was convicted of aggravated assault under § 2701(a)(1) in circumstances where he delivered one punch to the victim’s head and then walked away. Id. at 888. The Supreme Court stated that where the injury actually inflicted did not constitute a serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury. Id.

where the victim did not actually sustain the requisite serious bodily injury, we cannot say that the mere fact that a punch was delivered to that portion of the body is sufficient, without more, to support a finding that appellant intended to inflict serious bodily injury. Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.

Id. at 889.

¶ 12 The Court concluded that such intent was not demonstrated in the record and listed factors to consider in determining whether the intent to inflict serious bodily injury was present. Id. Those factors included evidence of a significant difference in size or strength with the victim, the defendant’s use of a weapon or implement to aid his attack, and his statements before, during or after the attack which might indicate his intent to inflict further injury on the victim. Id. at 889. The Court concluded by saying:

To accept the Commonwealth’s argument in this case would be to allow an admitted simple assault to be bootstrapped up to an aggravated assault. We hasten to add that a simple assault combined with other surrounding circumstances, may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault. All we hold is that the evidence in the instant case is insufficient to support such a finding.

Id. at 889-890.

¶ 13 Our Court’s rulings, consistent with Alexander, focus on whether the record reflects evidence of an intent to inflict serious' bodily injury. Aggravated assault can be demonstrated with proof of such intent regardless of whether it was impossible to actually cause serious bodily injury. Commonwealth v. Lopez, 439 Pa.Super. 625, 654 A.2d 1150 (1995). Likewise, aggravated assault can be found with proof of such intent regardless of whether any serious bodily injury resulted. Commonwealth v. Fierst, 423 Pa.Super. 232, 620 A.2d 1196, 1202 (1993); Commonwealth v. Rodriquez, 449 Pa.Super. 319, 673 A.2d 962 (1996). Finally, aggravated assault can be found with proof of such intent even if no actual injury resulted. Commonwealth v. Rosado, 454 Pa.Super. 17, 684 A.2d 605, 607 (1996).

¶ 14 In Lopez, an accused fired eight bullets at the front door of an empty residence of his girlfriend. The Court held that a prima facie case of aggravated assault was established by the Commonwealth if the accused possessed the requisite intent to cause serious bodily injury (for § 2702(a)(1)) or to cause bodily injury to another via the use of a deadly weapon (for § 2702(a)(4)), even though it was impossible for the accused actually to cause either serious bodily injury or bodily injury because of the absence of a person inside the residence. 654 A.2d at 1152.

¶ 15 In Fierst, the defendant beat David Perl in order to get his gun. 620 A.2d at 1201. When Ms. Mainolfi jumped on defendant in response to Perl’s screams, defendant began to beat her by hitting her on her head and arms with a black instrument she thought was a police blackjack. Id. at 1201-02. When defendant noticed that Perl was escaping, he stopped beating Ms. Mainolfi. Id. Our Court held that “it can be inferred that he [defendant] ... attempted to injure seriously Ms. Mainolfi even though Perl successfully thwarted the continued attack on her.” Id. at 1202. Our Court upheld aggravated assault convictions vis a vis Perl and Mainolfi, even though Mainolfi was not seriously hurt. Id.

f 16 Also, defendant then drove in the opposing lane of traffic, apparently attempting to commit suicide, and caused a driver-victim to swerve to avoid the collision with the defendant. Id. at 1202. Our Court again upheld the aggravated assault conviction vis a vis the driver, even though he suffered no injury. Id. at 1203.

¶ 17 In Rodriquez, the defendant and two confederates kicked and punched an older man and looted his pockets as the man lay prostrate in a Philadelphia intersection. 673 A.2d at 966. Our Court upheld an aggravated assault conviction because the circumstances evidenced an intent to cause serious bodily injury. Id.

¶ 18 In Rosado, the accused fired bullets into the lighted second story windows of a building that housed the victims. The Court held that the fact the victims were not injured was irrelevant as it was clear that the accused attempted to cause serious bodily injury. 684 A.2d at 607.

¶ 19 Our Court has cautioned that the defendant’s words and conduct are critical to a finding of the intent to cause serious bodily injury. Commonwealth v. Roche, 783 A.2d 766 (Pa.Super.2001), appeal denied, 668 Pa. 736, 798 A.2d 1289 (2002). There, the defendant called out to the victim, “are you a tough guy” and then delivered a single blow by a closed fist to the victim’s eye, causing the victim to fall unconscious to the ground and to sustain a scalp laceration. Id. at 768-69. The victim suffered an orbital blowout, frontal rim and sinus fractures and had eight staples to close his head wound. Id. Our Court determined that the belligerent words and the throw of one punch were insufficient factors without more to support the conclusion that the defendant had the intent to cause serious bodily injury. Id. Said another way, whether the words and conduct do not evidence a specific intent to kill or to cause serious bodily injury, then the Appellant can not be found guilty of aggravated assault.

¶ 20 We now turn to § 2702(a)(4). Under this attempt section, the Commonwealth must demonstrate both a substantial step plus an intent to cause bodily injury to another with a weapon. The inquiry here is whether the surrounding circumstances evidenced defendant’s intent to commit bodily injury with a weapon. Lopez; Commonwealth v. Mayo, 272 Pa.Super. 115, 414 A.2d 696, 702 and n. 9. (1979). In Mayo, the defendant placed a 6-inch long steak knife on the victim’s throat and said, “Do you know what I do to people that accuse me of doing things that I don’t do? ... I Mil them.” Id. at 698. Then, the defendant scratched some letters on the victim’s chest with the knife, drawing blood; however, the marks disappeared within hours. Id. He and his cohorts then successively raped the victim. Id.

¶ 21 Our Court concluded that the defendant’s actions “point decisively to an intent not to inflict bodily injury, but to frighten and/or humiliate” the victim, a design which was in fact eminently successful. Id. at 703. The Court stated the “crucial fact to be his [defendant’s] failure to pursue his obvious opportunity to inflict considerable pain or injury on” the victim. Id. The Court cautioned that “fear ... is simply not sufficient to sustain a conviction for aggravated assault.” Id3

¶ 22 Our decisions subsequent to Mayo have consistently instructed that the defendant’s words and conduct are to be examined to determine whether the requisite intent existed under § 2702(a)(4).⁴ See, e.g., Commonwealth v. Sanders, 426 Pa.Super. 362, 627 A.2d 188 (1998), appeal denied, 535 Pa. 657, 634 A.2d 220 (1993). In Sanders, the defendant approached the victim in a bar and said that he did not like the victim and that “one day its going to be me and you one-on-one.” Id. at 186. The victim told the defendant that he was ready to fight. Id. Then, defendant pulled out a gun, pointed it at the victim’s chest, approached the victim and put the gun at the victim’s head. Id. Fearing for his life, the victim grabbed at the defendant’s wrist and the bar owner eventually took the gun from defendant. Id.

¶ 23 The Sanders Court emphasized that the fact finder can infer the requisite intent from the defendant’s words and conduct. The Court cautioned that the mere act of pointing a gun at another person is not sufficient to establish a specific intent to cause bodily injury to the victim with a deadly weapon for purposes of § 2702(a)(4). Id. at 187. Nevertheless, the Court held that the jury could infer from defendant’s conduct and his words that he had intended to shoot the victim and would have shot the victim but for the action of the victim in grabbing defendant’s wrist and forcing the gun away from the victim’s head. Id.5

¶ 24 We glean the following from these cases vis a vis the attempt aspect of §§ 2702(a)(1) and (a)(4). First, the resolution of each case is a function of the circumstances of the case as determined by the fact-finder. 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. Lopez; Rosado; Sanders. 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.⁶

¶ 25 The focus of our inquiry in Appellant’s case is whether, in the circumstances of this case, defendant took a substantial step and demonstrated an intent to inflict serious bodily injury for purposes of § 2702(a)(1) or an intent to inflict bodily injury for purposes of § 2702(a)(4). Alexander; Sanders.

¶ 26 The trial court addressed this issue as follows:

It is clear from reviewing the testimony of the victim, Timothy McCrone, at pages 23 through 47 of the trial transcript that, from the victim’s point of view, he was certainly justified in fearing for his life with a bayonet so close to his neck that if he turned his head he would have cut open his throat. Whether or not the gun was loaded is immaterial, as the bayonet attached to the gun was a deadly weapon in close proximity to a vital organ of the victim. Under either theory of aggravated assault that conduct along with the statement, “I just ought to kill you.”, constitutes an intent to cause serious bodily injury.

Trial Court Opinion, 8/21/01, at 1.

¶ 27 Here, the record reflects that Appellant used a deadly weapon, i.e., a loaded rifle with an attached bayonet. Id. The bayonet was placed against a vital part of the victim’s body, ie., his throat. Id. If the victim had turned his head, his throat would have been cut open. Id. Appellant said, “I just ought to kill you.... Do you want to die today or tomorrow?” Id. Shortly thereafter, the victim escaped. Id.

¶ 28 The record supports the findings of the jury. The record reflects Appellant took a substantial step since the bayonet touched the victim’s neck. The record also reflects an intent to seriously injure. Here, Appellant’s words and conduct conveyed a present intent to kill. Also, Appellant did not release the victim; rather, the victim escaped. The fact that Appellant did not pursue the victim does not dissipate the fact that the circumstances at the critical moment were such that a jury could conclude that Appellant had an intent to cause serious bodily injury and an intent to cause bodily injury with a deadly weapon. Viewing the evidence in the light most favorable to the verdict winner, the Commonwealth, we conclude that the record supports the convictions of aggravated assault under §§ 2702(a)(1) and (a)(4).

¶ 29 Appellant next complains that the evidence was insufficient to convict him of driving under the influence of alcohol to a degree that rendered him incapable of safe driving under 75 Pa.C.S.A. § 3731(a)(1). In evaluating a challenge to the sufficiency of the evidence under Section 3731(a)(1), we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crime charged was established beyond a reasonable doubt. Commonwealth v. Montini, 712 A.2d 761, 767 (Pa.Super.1998). It is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence. Id. at 767-68.

75 Pa.C.S.A. § 3731(a)(1) provides:

§ 3731. Driving under influence of alcohol or controlled substance

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:

(1) While under the influence of alcohol to a degree which renders the person incapable of safe driving.

75 Pa.C.S.A. § 3731(a)(1).

¶ 30 To establish that one is incapable of safe driving for purposes of 75 Pa.C.S.A. § 3731(a)(1), the Commonwealth must prove that alcohol has substantially impaired the normal mental and physical faculties required to operate the vehicle safely. Montini, 712 A.2d at 767. Substantial impairment means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Commonwealth v. Kowalek, 436 Pa.Super. 361, 647 A.2d 948, 950 (1994).

¶ 31 The trial court addressed this issue as follows:

As to issue number two, which is also a factual issue, being whether or not the Commonwealth presented sufficient evidence to prove that the defendant was guilty of driving under the influence of alcohol to a degree which rendered him incapable of safe driving, you have a refusal to take a BAC test, a strong odor of alcohol, bloodshot eyes, and defendant’s admission that he had drank four beers approximately 40 minutes before driving his vehicle. There was also testimony as to the defendant traveling at a high rate of speed on a back winding road; and, of course, the prior incident that evening where he pointed a bayonet at the throat of a neighbor whom he hardly knew. The jury was certainly justified in finding the defendant guilty of driving under the influence under the above facts as supported by the above strong circumstantial evidence.

Trial Court Opinion, 8/21/01, at 1-2. We agree.

¶32 Our review of the record reflects that Pennsylvania State Police Trooper Michael Keyes testified that he was traveling east on Route 17 when he spotted a yellow pick-up truck he believed might be Appellant’s because of an assault reported earlier that evening. N.T., 10/23/00, at 49. Appellant was travelling in the opposite direction. Id. Trooper Keyes turned his vehicle around and began pursuing Appellant’s truck. Id. Trooper Keyes followed Appellant’s truck on to Cherry Valley Road where Trooper Keyes was able to stop the vehicle. Id. Appellant got out of the truck and headed toward Trooper Keyes’ vehicle when Trooper Keyes ordered Appellant to the ground. Id. at 51. Another Pennsylvania State Police Trooper, Gregory Wirth, arrived on the scene. N.T., 10/23/00, at 51. The troopers handcuffed Appellant, and arrested him. Id. at 52. Trooper Keyes testified that Appellant emitted a strong odor of alcohol. Id.

¶ 33 Trooper Wirth testified that he observed Appellant’s vehicle as it came “flying” up the road at a high rate of speed. N.T., 10/23/00, at 63, 65. Trooper Wirth saw Trooper Keyes in pursuit. Id. at 63. Trooper Wirth turned around and pursued "the two vehicles. Id. at 64. When Trooper Wirth arrived at the scene, he observed Appellant lying on the ground near the rear of the pickup truck. Id. Trooper Wirth detected a strong odor of alcohol on Appellant and noted that Appellant had bloodshot eyes. Id. at 65. In response to an inquiry, Appellant stated that he had had four sixteen-ounce beers at the “Copper Frog” in a forty-minute period. N.T., 10/23/00, at 70. No field sobriety tests were conducted. Id. at 69-70. Appellant was asked to submit to a blood test, but refused. Id. at 70.

¶ 84 After the troopers placed Appellant in the police car, Trooper Wirth asked Appellant if he had any weapons. N.T., 10/23/00, at 66. Appellant responded that he had a case of beer in the car. Id. When Trooper Wirth repeated the question, Appellant stated, “I have shoes.” Id. Trooper Wirth recovered a case of beer and a loaded rifle with eight rounds of live ammunition from Appellant’s truck. Id. at 67.

¶ 35 Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, we conclude that the Commonwealth did prove that Appellant was driving while substantially impaired by alcohol. Appellant admitted to operating a motor vehicle after consuming four sixteen-ounce beers within forty minutes, appeared with bloodshot eyes, drove at a high rate of speed, gave inappropriate answers, and refused a blood test. Thus, the trier of fact could have found a diminution in the ability to exercise judgment or to react prudently to changing circumstances sufficient to establish that alcohol substantially impaired Appellant’s mental and physical faculties required to operate a vehicle safely. Montini; Kowalek. The evidence is suffu cient to sustain Appellant’s conviction for" driving under the influence of alcohol to a degree that he was rendered incapable of safe driving pursuant to 75 Pa.C.S.A. § 3731(a)(1). Appellant’s claim lacks merit.

¶ 36 Appellant, finally, complains that the trial court abused its discretion in failing to sustain defense counsel’s objection to the prosecutor’s comment to the jury during closing argument. Appellant specifically complains that the prosecutor’s description of Appellant as “the reason that our rights in this country to bear arms are threatened right now” was clearly intended to prejudice the jury against Appellant.

¶ 37 A prosecutor’s remarks will not “constitute reversible error unless the unavoidable effect of such comment would be to prejudice the jury. Whether a reversal of judgment is required depends on whether the remarks made by the prosecutor are of such a nature that they would seriously threaten the jury’s objectivity and deprive the accused of a fair trial.” Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61, 76 (1994). Comments by a prosecutor during closing arguments must be considered in the context of the entire summation. Commonwealth v. Johnson, 719 A.2d 778, 790 (Pa.Super.1998), appeal denied, 559 Pa. 689, 739 A.2d 1056 (1999).

¶ 38 The trial court addressed this issue as follows:

As to issue number three, the defense argues that a mistrial should have been declared by the Court when defense counsel objected to the prosecutor’s highly inflammatory comment to the jury in his closing argument wherein he stated that “The defendant is a dangerous man. He’s the reason that our rights in this country to bear arms are threatened right now. Like him”, (N.T. of Trial, 99). It should be pointed out that when trial counsel objected to that argument, this Court asked the attorneys to approach the bench and thereafter the Assistant District Attorney continued with his argument in a proper manner. Considering the overwhelming evidence against the defendant in this case, such an isolated remark by the prosecutor in closing argument did not substantially compromise the rights of the defendant to a fair trial under the totality of the circumstances of this ease.

Trial Court Opinion, 8/21/01, at 2. We agree.

¶ 39 Our review of the prosecutor’s summation reflects that this single comment by the prosecutor in the context of the entire summation that was 11 pages in length does not warrant reversal or a new trial. The single remark by the prosecutor was not of such a nature that it would seriously affect the jury’s objectivity or deprive Appellant of a fair trial. Carter. Thus, the prosecutor’s comment did not result in prejudice to Appellant. Appellant’s final claim fails.

¶40 Accordingly, on the basis of the foregoing, we affirm Appellant’s judgment of sentence.

¶ 41 Judgment of sentenced affirmed.

¶ 42 BENDER, J. files a Concurring and Dissenting Opinion.

1 . Appellant pled guilty to the offense of convicted felon in unlawful possession of firearm prior to trial.

2 . We note that while Appellant alleges that he was convicted of attempted aggravated assault in his issue statement, he was convicted of aggravated assault.

3 . The Mayo Court did, however, refer the reader to a case where the opposite result was reached. 414 A.2d at 703 n. 10. See, Commonwealth v. Kibe, 258 Pa.Super. 353, 392 A.2d 831 (1978). There, the accused approached a lone woman at a late hour from the rear without warning and ordered her into her car. He put her in fear of an impending rape and, when she refused, he struck her with such force in the face to fracture her nose. His conviction for aggravated assault was affirmed. The Kibe Court concluded that the surrounding circumstances indicated that the defendant intended to inflict serious bodily injuiy, thus raising a simple assault to an aggravated assault.

Kibe, which was decided under § 2702(a)(1) and not under § 2702(a)(4), is not consistent with Mayo. The Kibe Court focused on whether, assuming the substantial step, the circumstances supported the conclusion that defendant intended to inflict serious bodily injury. Mayo is likely limited to the unique facts of its case, particularly since cases decided subsequent to Mayo focus more on the defendant’s conduct and words than on the victim’s reaction.

4 . Our Court did address aggravated assault under § 2702(a)(4) in Commonwealth v. Chance, 312 Pa.Super. 435, 458 A.2d 1371 (1983). There, defendant, with a .22 caliber pistol, forced open the door of a car where a male and a female were embracing. Id. at 1372. He tied up the male victim and chased and eventually dragged the female victim back. Id. He placed a gun at her head and a struggle ensued. Id. The male victim, having freed himself, also struggled with the defendant. Id. The male victim heard a gun click several times while defendant hit the female victim with the gun. Id. The female victim sustained injuries to her hand which shielded her from defendant’s attacks on her with the gun. Id. at 1375. Appellant’s conviction for causing bodily injury to her with a deadly weapon was upheld. Id.

5 . We observe that pointing a gun at a person can be a threat to cause serious bodily injury and could constitute a simple assault as an attempt by physical menace to put another in fear of imminent serious bodily injury. 18 Pa.C.S.A. § 2701(a)(3). See, Commonwealth v. Trowbridge, 261 Pa.Super. 109, 395 A.2d 1337, 1340 n. 8 (1978). We caution that pointing a gun at another may be aggravated assault under either §§ 2702(a)(1) or (a)(4), depending on the surrounding circumstances.

We recognize that at least one court has said that aggravated assault is not demonstrated where, during a struggle with a victim, defendant’s gun clicks. See, Commonwealth v. Savage, 275 Pa.Super. 96, 418 A.2d 629, 632 (1980). Savage did not involve a sufficiency of the evidence challenge to the aggravated assault conviction and no clear indication that defendant was convicted under § 2702(a)(4). Id. at n. 7. 632. Further, such a statement is not supported in many other cases announced by this Court. See, e.g., Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414, 416 n. 2. (1978) (while a challenge to the aggravated assault conviction was not addressed in the Court's opinion, the Court did state that the evidence was sufficient “to show an aggravated assault of” one of the victims who heard the gun clicking during a struggle with the defendant).

6 . We note that, as the above illustrates, the case law upon which this Opinion is based post-dates the case law cited by our colleague in his dissent. We have analyzed all pertinent law on the subject. However, as we must, we follow the most recently announced appellate precedent on the issues presented.