Commonwealth v. Kibe
This text of 392 A.2d 831 (Commonwealth v. Kibe) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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On November 3, 1975, at about 11:20 P.M., Carrie Coulson left the Enola Hotel in Enola, and headed for the hotel’s parking lot where her car was parked. From the hotel porch she saw a blue sedan pull into the parking lot. The driver of the blue sedan parked it four or five cars away from the spot in which Mrs. Coulson’s car was parked. At that time, Mrs. Coulson saw no other activity in the parking lot.
[355]*355Leaving the hotel porch, Mrs. Coulson walked into the parking lot and approached her car. She heard a car door slam and footsteps approaching from behind her. As she reached the rear of her automobile the footsteps were close behind. Because her car was locked, she turned to check the source of the footsteps. At that point, her testimony recites that:
A I turned around and seen a person in back of me about an arm’s length away.
(Brief pause taken off the record.)
MR. BAYLEY: Would you just read the answer back to that last question, the last question and answer.
(Question and answer referred to read back by reporter.)
BY MR. BAYLEY:
Q A man or a woman?
A A man.
Q At that point when you observed this man, had you ever seen him before to your knowledge?
A No.
Q What occurred next?
A He asked me if that car was mine, and I says yes. He says get in it, and I said no, I’m not.
And then he started to fool around with the front of his pants, and then I just screamed.
Q When you screamed, what occurred next?
A Well, he hit me in the face around the nose.
Q Do you know what portion of his body hit you, did you see the blow coming?
Q When you were hit, what happened to you?
A I fell down on my back, and then I got up and ran into the Enola Hotel. (NT 10-11)
And on cross-examination, on the same time interval her testimony was:
[356]*356Q Were you afraid at the time you heard the footsteps?
THE COURT: You mean when she first heard them?
MR. SPRENGLE: Yes.
A You mean when I first heard the footsteps—
BY MR. SPRENGLE:
Q When you heard someone coming up behind you, were you frightened?
A Not at first, no.
Q Did you happen to notice if there was a moon out that night?
THE COURT: You mean no, you didn’t notice or no, there was no moon?
A I didn’t notice.
Q You say as you heard these footsteps, you turned, around and you saw the defendant at arm’s length, is that all correct?
A Yes.
Q He then said what to you?
A He asked me if this was my car, and I says yes.
Q Then you said he said get in?
A He says well, get in it, and I says no.
Q He then began to fool with his pants?
Q Then you immediately screamed?
A I screamed, yes.
Q Do you remember what flashed through your mind when you screamed, why you screamed?
MR. BAYLEY: I object, it’s obvious. I object to the form of the question.
[357]*357THE COURT: I don’t think that that is a proper objection because her answer may be obvious. I will permit her to answer.
Why did you scream?
A Because the first thing I thought of was the idea that he was going to rape me when I seen him fooling around with his pants. (NT 28-29)
When Mrs. Coulson screamed, appellant hit her in the face, which resulted in the victim’s falling to the ground. Mrs. Coulson suffered a fractured nose. Appellant was convicted of aggravated assault1 on February 12, 1976, and appeals his conviction.
The sole issue of merit argued by appellant is that a fractured nose does not constitute the “serious bodily injury” required for a conviction of aggravated assault. We disagree.
It is true that in Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978), the supreme court held that where the victim of a punch to the nose did not actually sustain the requisite serious bodily injury, there the injury also being a fractured nose, a conviction for aggravated assault could not be sustained because there was insufficient evidence, direct or circumstantial, from which an intent to inflict serious bodily injury could be inferred. There the only direct evidence of appellant’s intent was his testimony to the effect that he did not intend to seriously injure the victim. The supreme court explained, “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.” 477 Pa. at 194, 383 A.2d at 889.
In our opinion the facts in the instant case present sufficient additional circumstances to support the aggravated assault conviction, and therefore Commonwealth v. Alexander, supra does not control.
[358]*358Where a lone woman is approached at a late hour from the rear without warning by a male, ordered into her car, put in fear of an impending rape, and upon her refusal, struck with such force in the face as to fracture her nose, we hold that evidence sufficient to support a conviction for aggravated assault.
The appellant also argues that there was no probable cause to arrest and that the identification procedure was tainted. We find no merit to these arguments.
Judgment of sentence affirmed.
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Cite This Page — Counsel Stack
392 A.2d 831, 258 Pa. Super. 353, 1978 Pa. Super. LEXIS 3822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kibe-pasuperct-1978.