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Commonwealth v. Gruff3/27/2003
Petition for Reargument Filed April 10, 2003; Petition for Reargument Denied May 29, 2003.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOHN A. GRUFF, APPELLANT
Appeal from the Judgment of Sentence Entered on November 9, 2000 In the Court of Common Pleas of Perry County, Criminal Division at No. 128 of 2000.
Before: Lally-green, Bender and Kelly, JJ.
The opinion of the court was delivered 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.
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 2½ 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
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