Is Mace a Deadly Weapon Under the Aggravated Assault Statute?

Aggravated Assault with a Deadly Weapon in Pennsylvania

An issue that frequently comes up in Aggravated Assault prosecutions is whether or not the defendant used a deadly weapon in the commission of an assault that resulted in bodily injury. In cases where the defendant is charged with attempting to cause or knowingly or intentionally causing bodily injury, the Commonwealth may seek a conviction for Aggravated Assault as a felony of the second degree instead of Simple Assault if the Commonwealth can also show that the defendant used a deadly weapon in the commission of the offense.

Bodily injury is defined as "impairment of physical condition or substantial pain," and a deadly weapon is defined as "any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." In cases involving a knife or a gun, it is relatively simple for the Commonwealth to show that a deadly weapon was involved for purposes of the Aggravated Assault (F2) statute because those weapons are clearly identified in the statute. There may be other potential defenses, but it will likely not be a defense that the weapon involved was not deadly.

what is a deadly weapon in pennsylvania? 

However, when the defendant is alleged to have used some sort of non-traditional weapon, the issue becomes much more complicated because any object can become a deadly weapon depending on how it is used. Under the statute, if the object is used or intended to be used in a manner calculated or likely to produce death or serious bodily injury, then the object could qualify as a deadly weapon even if it is not something that would normally be thought of as a weapon. Accordingly, appellate courts have found that even such seemingly harmless objects as eggs can be deadly weapons if the eggs are thrown at moving cars. In that scenario, an egg could be a deadly weapon because the manner in which the egg was used could lead to a car accident which could produce or serious bodily injury. 

IS MACE A DEADLY WEAPON? 

Recently, in Commonwealth v. Chambers, the Pennsylvania Superior Court concluded that mace (pepper spray) could qualify as a deadly weapon under the statute depending on how it is used. In Chambers, the defendant was convicted for Aggravated Assault. The trial court found that Chambers had engaged in a fight with the complainant, and during the fight, a co-conspirator sprayed the complainant with pepper spray. Chambers and a number of other people continued to punch and kick the complainant, leaving the complainant with a concussion, lacerations which required stitches, a burnt retina in his eye, and some broken bones. The trial court found Chambers guilty of Aggravated Assault with a deadly weapon on the theories of co-conspirator and accomplice liability because one of Chambers co-defendants used the mace. Chambers appealed, arguing that the mace did not constitute a deadly weapon because it is "an instrument which is not inherently a deadly weapon" and because the Commonwealth did not present any evidence regarding the chemical composition of the mace. 

The Superior Court rejected Chambers argument. The court accepted the trial court's conclusion that even if the mace was not inherently a deadly weapon, it became a deadly weapon because of the manner in which it was used against the complainant. Although mace may not cause permanent injuries on its own, the mace in Chambers was used to incapacitate the complainant so that the group could continue to beat him and cause more serious injuries. Therefore, the mace was used in a manner which made it more likely that the complainant would suffer death or serious bodily injury because he could not defend himself from the ongoing assault. 

Therefore, depending on the circumstances, an item like mace may or may not be a deadly weapon for purposes of the Aggravated Assault statute. If the defendant simply sprays mace in the complainant's eyes and the complainant does not suffer serious bodily injury and there is no further assault, then the mace may not be a deadly weapon. If the mace is used to incapacitate the complainant so that the complainant can be injured, then the mace may qualify as a deadly weapon. 

WHAT IS serious bodily injury?

In cases involving "serious bodily injury," the defendant will typically be charged with Aggravated Assault as a felony of the first degree, and whether or not the defendant used a deadly weapon will not be as relevant. However, it could still be relevant at sentencing because there are sentencing enhancements when a deadly weapon is used or possessed during the comission of an offense. Serious bodily injury is defined by the Pennsylvania Crimes Code as "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." Therefore, serious bodily injury is typically going to involve things like broken bones, brain damage, organ failure, shootings, and stabbings. In other words, serious bodily injury involves permanent or at least lasting damage. 

HOW OUR PHILADELPHIA ASSAULT LAWYERS CAN HELP

Regardless of whether the defendant is charged with Aggravated Assault as a felony of the first or second degree, Aggravated Assault is an extremely serious charge. Our Philadelphia assault lawyers have successfully defended many clients charged with all types of assault. The most important thing to do if you are facing assault charges is to act quickly. Do not delay and allow valuable evidence and witnesses to be lost. Video surveillance may often start to be deleted in as little as 24 hours. If you are charged with any type of assault in Philadelphia or the surrounding counties, call the Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC at 267-225-2545 for a complimentary 15-minute criminal defense strategy session.  

Philadelphia Assault Lawyers

PA Superior Court Limits Application of Possession of Weapon on School Grounds Statute

Possession of a Weapon on School Grounds

The Pennsylvania Superior Court recently issued an opinion which significantly expands the defenses available in a prosecution under the Possession of Weapon on School Property statute. In Commonwealth v. Goslin, the full Superior Court reversed the initial three-judge panel decision which upheld Goslin's conviction for possessing a pocket knife on school grounds. The court ruled that the lower courts and panel erred in interpreting the defenses available under the statute when the trial court concluded that the weapon must be possessed for a lawful purpose related to a school activity. Therefore, Goslin is entitled to a new trial. 

Defenses to Possession of Weapon on School Property Charges

The Possession of Weapon on School Property statute, 18 Pa.C.S. § 912, makes it a misdemeanor of the first degree to possess "a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school." However, the statute also provides two defenses to the charge. First, it is a defense where the weapon was possessed and used in conjunction with a lawful supervised school activity or course. Second, it is a defense where the weapon "is possessed for other lawful purpose."  

The facts in Goslin were fairly straight forward and a little bit humorous. Goslin's son was suspended from school for three days for bringing a knife to school. Goslin and his wife then attended a meeting at school to discuss the discipline. Goslin arrived at the meeting directly from working at his job as a carpenter. When he arrived, he had a knife of his own in his pocket which he used both at work and also to sharpen pencils, whittle sticks with his sons, and “open tuna cans when [his] wife forgets to pack [him] a tuna can opener.”

At some point during the meeting, Goslin removed the knife from his pocket, put it on the table, and asked to know whether he would be arrested as well. Of course, Goslin was arrested, and he was later convicted of Possession of Weapon on School Property after the trial court found that the lawful purposes for which Goslin normally possessed the knife were not related to school activities.  

Initially, a three-judge panel of the Superior Court upheld the trial judge's reasoning that the statue requires the weapon possession to be related to school activities and affirmed the conviction. Goslin's attorneys petitioned the full Superior Court or en banc review, and the court agreed to review the case. The full Superior Court interpreted the statute differently and reversed the conviction. The court concluded:

Contrary to the trial court’s conclusion, the “other lawful purpose” language does not restrict the defense provided in Section 912(c). Instead, the phrase does just the opposite: it expands the defense to include any additional or different lawful reason not otherwise mentioned in the first clause of Section 912(c), regardless of whether it is school-related. To conclude otherwise, would make “possessed for other lawful purpose” redundant with “possessed and used in association with a lawful supervised school activity or course.”

The Superior Court's holding in Goslin is very broad. It means that if the defense can produce evidence of a lawful purpose for which the weapon was possessed, the prosecution likely should not be able to obtain a conviction under the statute. As always, we do not advocate testing the limits of these statutes. If you bring a knife to a school, you will probably still be arrested and forced to deal with the expense and risk of a criminal prosecution. But this decision clearly establishes that if there was a lawful purpose for possessing the weapon, then the Commonwealth may not prevail in a prosecution under this statute.  

Is a slap an assault? Maybe not.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

There has been a lot of recent media attention on an altercation in which a 16-year-old girl slapped a Philadelphia police officer. Although the video of the incident has gone viral, the video itself does not appear to show the "slap" to the face allegedly delivered to the police officer by the female juvenile. Recently, the head of the Philadelphia Fraternal Order of Police called for the female to be charged with assault and blasted the District Attorney for declining to bring charges despite the girl's admission that she did, indeed, slap the officer. Putting the politics of the issue aside, this incident illustrates some of the defenses to both Aggravated Assault on an officer and Simple Assault charges in Pennsylvania. 

Should you slap a police officer? Absolutely not. Is the encounter described by the paper an "assault" as defined by the Aggravated Assault and Simple Assault criminal statutes? Probably not. 

Let me preface this article with some advice: don't put your hands on a police officer. It will almost never work out well for you. More often than not, it will result in second degree felony Aggravated Assault charges. If the police are conducting an illegal search, or roughing you up, or arresting you for no reason, you are far better off grinning and bearing it and contacting a civil rights attorney afterwards. The immediate situation will not improve by fighting back (unless in the rare situation that your life is at risk) and you will face a complicated and serious legal situation after the incident. You will also likely end up in custody or the hospital, which will make it more difficult to obtain evidence of the illegality that you can use in court.  

With that said, let us turn to the question at hand. Is the head of the Philadelphia Fraternal Order of Police correct that the District Attorney should bring "assault" charges against the 16 year old? If we are going by the legal definitions of Aggravated Assault and Simple Assault, then the District Attorney has probably made the correct decision in declining to bring charges. Barring something unusual about the slap, one open-handed slap which does not cause any injury is unlikely to qualify as any type of "assault" under Pennsylvania law.     

Pennsylvania Aggravated Assault Law

Under Pennsylvania law, an Aggravated Assault as a first degree felony requires that the defendant cause or attempt to cause serious bodily injury to the complainant. Serious bodily injury is "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." In order words, it's a stabbing, or something like a gunshot wound. At a minimum, it's probably a broken bone or a large number of stitches. Unless there is something really unusual about the slap, it is not going to cause serious bodily injury, and it should not lead to felony one Aggravated Assault charges.  

Misdemeanor Simple Assault

A misdemeanor Simple Assault requires that the defendant only cause bodily injury. Bodily injury is a much lower standard, but it is still probably more than a slap. Bodily injury requires "impairment of physical condition or substantial pain." Therefore, punching or kicking someone in the face or stomach where the person does not receive serious bodily injury but is put in substantial pain would count as a Simple Assault, but not an Aggravated Assault. 

An ordinary Simple Assault quickly becomes more serious when a police officer is the victim. That is because a Simple Assault on a police officer, for the most part, can be charged Aggravated Assault as a felony of the second degree. There are some differences between the statutes in that Simple Assault can be proven where the defendant acted only recklessly instead of knowingly and intentionally, but there is quite a bit of overlap. If you punch a police officer in the stomach or elbow him or her in the face and cause bruising, swelling, or lasting redness, that may very well be properly charged as Aggravated Assault as a second degree felony instead of merely a misdemeanor Simple Assault. 

The problem with charging assault in the circumstances referenced above is that a slap to the face from a 16-year-old female to an adult is unlikely to result in any kind of substantial pain or physical impairment. Certainly, depending on the slap, it could. This is especially true if the 16-year-old is particularly strong or much larger than the victim. But in most cases, one slap delivered with an open palm is going to result in some sort of minor physical discomfort and maybe a little bit of redness. A slap is more often thought of as a sign of disrespect than a genuine attempt to cause injury, and so it likely will not meet the standard of causing or attempting to cause bodily injury as required by the Simple Assault and F2 Aggravated Assault on law enforcement statutes. Obviously, each case is different, and criminal cases are heavily fact-based. But slapping someone is not automatically an assault under Pennsylvania law. 

a slap could be criminal Harassment

Although a slap may not always constitute an assault under the criminal statutes, there are other charges that could be brought. A slap does, most likely, qualify as harassment. A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same. 

Likewise, the officer could bring a civil suit for the torts of assault and battery as those torts have different elements from the criminal statutes. It is also conceivable that the juvenile could have been charged with disorderly conduct. Of course, this analysis depends on the witnesses agreeing that it was a slap. In many cases, any contact with a police officer could be exaggerated when the report is created, which could trigger the Simple Assault and potentially Aggravated Assault statutes. 

My advice: Don't hit, slap, punch, kick, or run from a police officer. Instead of fighting back and getting yourself in trouble, the best remedy is to take legal action if the officer has violated your rights. At the same time, a slap, while it may be harassment or disorderly conduct, is not automatically a criminal assault under Pennsylvania law regardless of whether it involves a police officer or civilian victim. 

FACING CHARGES? CALL A PHILADELPHIA ASSAULT LAWYER TODAY

There are often defenses to criminal charges because criminal statutes are complicated. They have very specific definitions, and they are often interpreted in appellate court cases which explain those definitions. Many terms in criminal law do not have the same meaning as they do in general conversation. If you are facing criminal charges or charges for Aggravated Assault or Simple Assault, it is critical that you retain the services of our experienced criminal defense lawyers. We successfully handle Aggravated Assault and Simple Assault cases. Call 267-225-2545 now for a free 15-minute criminal defense strategy session.   

What's the difference between Aggravated Assault and Simple Assault?

We just updated our legal guide to include an in-depth discussion of the different types of Assault charges under Pennsylvania law. Click here to learn more about Aggravated Assault, Simple Assault, Assault on Law Enforcement and Correctional Officers, and the difference between these types of charges. We also provided explanations and examples of some of the many different defenses that may be available to a defendant facing these serious charges.