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Judge denies motion to dismiss added assault charge

Can the district attorney add charges to a criminal case on his own between the preliminary hearing and arraignment?

That question was at the heart of an argument raised in a criminal case of a man accused of assaulting a woman during a domestic dispute.

Benjamin M. Sudul, 39, Russell, was charged by Pennsylvania State Police with strangulation, uses incapacitation device, simple assault, harassment and terroristic threats after an alleged July 2 domestic dispute.

He was held for court as the result of a preliminary hearing on September 5 and the case was pushed to the court of common pleas level. Before his formal arraignment, at that level the Commonwealth prepares the information – or charges – they intend to prosecute.

That document was filed on September 18 and added a count of aggravated assault.

Sudul’s attorney, Brian Arrowsmith, argued that the Commonwealth “added charges as it desired,” and he said the court was never consulted.

He suggested District Attorney Rob Greene “somewhat subversively” added the charge, which violated Sudul’s right to due process.

Arrowsmith stated that the alleged victim did not sustain significant injuries and that there was “no actual cause of serious bodily injury.”

“Serious bodily injury” is what distinguishes aggravated assault from simple assault, which requires “bodily injury.”

Judge Gregory Hammond asked if intent could be inferred by a fact finder based on the allegations against Sudul.

Arrowsmith responded by indicating that the charge of strangulation has “shock value” but is “not necessarily causing serious bodily injury.”

He said that in his client’s situation, there were no injuries to the neck and no medical attention sought and suggested that the Commonwealth added a terroristic threats charge and could have added the aggravated assault charge at the same time.

He suggested that the Commonwealth then “slipped the charge in” without following proper procedures.

Greene pointed out that none of the other charges are being challenged and suggested that it is a matter of time before strangulation will result in serious bodily injury and would ultimately lead to death.

“(I) would say death is a serious bodily injury,” he said.

He also challenged the assertion that he slipped the charge in and explained that the Commonwealth often finalizes charges between the preliminary hearing and formally filing the information.

However, he acknowledged that the “rules are not 100 percent clear.”

Greene also noted that should the charge be struck as part of Friday’s hearing, the Commonwealth would file to amend the information and add the charge back “and we’ll be right back here.”

Hammond stated that the Rules of Criminal Procedure permit the prosecutor to “step outside” of the charges in the criminal complaint.

Citing multiple case law on the issues, Hammond concluded that the charge could be added if the charges share similar elements or are in the same category. He said that simple assault and aggravated assault are “certainly the same class of offense… clearly,” and “designed to protect from the same kind of harm.”

Hammond said the alleged conduct includes grabbing the victim around the neck and throwing her into a four-wheeler and shelf and said that he doesn’t know “how that hair is split” when it comes to the difference between simple assault and aggravated assault in this matter.

He then denied Sudul’s motion.

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