What’s the difference between aggravated assault and simple assault?

Under Pennsylvania law, a person commits a simple assault when he attempts to cause, or intentionally causes bodily injury to another person, or if a person negligently causes bodily injury with a deadly weapon. One commits an aggravated assault when he causes or attempts to cause serious bodily injury to another. “Bodily injury” is defined under the law as impairment of a physical condition or substantial pain. “Serious bodily injury” is bodily injury that 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.

Oftentimes assault cases are over-charged by the prosecution and what is first alleged to be an aggravated assault can be demonstrated in court to merely be a simple assault. The threshold to prove “serious bodily injury” is a high one and competent defense counsel must understand the legal difference and in the right case demonstrate that the prosecution has not met its burden of proving that serious bodily injury was caused. This is a vital distinction as a conviction for simple assault often results in probation whereas a conviction for aggravated assault can lead to extended periods of incarceration.

What are the most common defenses to assault charges?

There are many different defenses to assault charges. However, the four most common are (1) self-defense, (2) lack of intent, (3) no serious bodily injury attempted or caused, and (4) credibility.


Self-defense is an affirmative defense in Pennsylvania. However, the burden does not shift to the defense to prove it. Rather, the Commonwealth has the burden of disproving that the defendant acted in self-defense and must do so beyond a reasonable doubt. Some defendants are weary of a self-defense claim as they must admit that they assaulted the other individual. However, it can be an extremely effective defense under the right set of facts. In order to secure a self-defense jury instruction, the defense must first demonstrate that the complainant or other party was the first aggressor. In other words, the victim started the fight or assaultive behavior. Second, the defendant must demonstrate that they had a reasonable fear of imminent death or serious bodily injury at the hands of the aggressor. Third, the defendant cannot escalate the assault. That is, if it is a fistfight and the defendant pulls out a gun, they will likely lose the ability to claim self-defense. Fourth, the defendant, under some circumstances, must show that they were not able to reasonably retreat or get away from the fight. If you are in your own house or vehicle, you have absolutely no duty to retreat. If police respond to the scene of a fight, their victim often becomes the person with the more serious injuries and the other is the defendant. But, the police do not know what occurred before they arrived. It is possible that the “victim” threw the first punch and in defending yourself, you got the best of the victim and now you are being charged with assault. Or, the complainant may have pulled a gun on you and threatened to shoot you and in response, you grabbed the complainant and a fight ensued. By the time the police arrive, the complainant’s friends have taken the gun from the scene. It is vital in these situations that a criminal defense attorney, along with your assistance, secure eyewitnesses to testify to what happened prior to police arrival as these witnesses will likely provide a very different account of the events. Also, if you were taken to the hospital or have any physical injuries, your medical records should be obtained and pictures of your injuries taken immediately to document those injuries.


As is the case with almost every crime, when charged with attempted murder, aggravated assault, or simple assault, your men’s rea or intent is paramount. That is, what did you mean to do? Were your actions intentional, reckless, or simply negligent? Take these two examples: (1) You are arguing with another outside of a bar and you throw one punch. The victim falls backward, strikes his head on the pavement and days later dies in the hospital due to head injuries. (2) You climb out of a car driven to the scene for one goal, find your target, and shoot another person. But, despite discharging numerous rounds, you never hit the victim and you drive off. In the first scenario, your intent was likely to cause bodily injury despite the result. In the second, you had a specific intent to kill but there was not a scratch on the victim. In the first example, you would likely be charged with simple assault, recklessly endangering another person, and possibly involuntary manslaughter, which is graded as a misdemeanor of the first-degree, despite the fact that the victim was killed as that was clearly not your intent. In the second, you would be charged with attempted murder, aggravated assault, possessing an instrument of crime, possession of a firearm, and related offenses because you had a specific intent to kill even though the victim escaped with no injuries. These examples show how intent is key to assault charges.

No Serious Bodily Injury

It is difficult to prove that serious bodily injury was caused by the accused. A skilled criminal defense attorney can cross-examine the victim, review medical records, and investigate the crime to disprove the complainant’s claim that they suffered serious bodily injury. In the heat of the moment, many will tell police that their injuries are more serious than they turn out to be. By the time they get to trial and the medical records are reviewed, the truth comes out that the injuries were not nearly as serious as first alleged. Additionally, the prosecution will often charge aggravated assault on a theory that serious bodily injury was caused or attempted but simply cannot meet that burden at trial.


The victim in an assault almost always played some part in the fight. But, when the crime is first reported to police, they invariably did nothing wrong and it was the perpetrator who “came out of nowhere” and simply started attacking them. Common sense tells most that is not the case. However, the police go along with their story and you end up in prison charged with serious assault offenses. Often as early as a preliminary hearing, some of the truth starts to emerge that the victim and his friends may have made some threats, were drunk at the time, or even threw the first punch. Suddenly, the story starts to change, and now an experienced criminal defense attorney can go on offense. At trial, a skilled attorney can take what was first told to police and compare it with preliminary hearing testimony, versions told by independent witnesses, and other evidence to crush the complainant’s credibility. Therefore, even if they did suffer a serious injury, a judge or jury simply cannot trust the victim’s story as to how those injuries occurred and the result is a “not guilty” verdict for the defense.

How can I be charged with assault if the victim did not suffer any injuries?

Criminal law, especially when it comes to crimes of violence, is not about the resulting injuries but rather is about the defendant’s intent. That is, what was your intent when you allegedly attacked, assaulted, stabbed, or shot another. I am often asked the above question and I believe two examples make this much easier to understand.

Example 1: I pull out a gun and say, “I’m going to kill you” and I fire three shots in your direction none of which hit you. You run away without a scratch on your body and I am ultimately arrested. What crimes would I be charged with? Although you did not suffer any bodily injury, I would be charged with attempted murder, aggravated assault, gun possession, terroristic threats, and multiple other lesser-included offenses. Other than murder, there is no more serious assault offense than attempted murder and you can receive a maximum penalty of 40 years of incarceration.

Example 2: We have an argument and I punch you one time. In a freak incident, you fall backward, hit your head on the concrete, and ultimately die in the hospital. What crimes would I be charged with? Although you suffered the ultimate injury, death, I would likely be charged with involuntary manslaughter, simple assault and recklessly endangering another person. Involuntary manslaughter is defined as one causing the death of another after doing an unlawful (assault) or lawful (driving) act in a reckless or grossly negligent manner. It is graded as a misdemeanor and punishable by a maximum of 5 years of incarceration. My intent was only to cause you minor bodily injury with a punch and therefore despite the fact that you died, the charges I face would be much less serious.

These examples demonstrate that it is the perpetrator’s intent and not the resulting injuries that control the severity of the assault charges that will be levied against you. Assault offense is a serious charge that can result in considerable periods of incarceration. If you have been arrested for attempted murder, assault, or a related offense, contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation.

What do I do if I was arrested and charged with domestic assault after my girlfriend called the police and now she doesn’t want to press charges?

Domestic violence is sadly an all too common offense in Philadelphia and the surrounding counties. Judges and jurors take it very seriously as the man is often the aggressor and nobody likes to hear about a guy roughing up a woman and seeing pictures of that type of assault. However, often I have clients come to my office with the above question as the parties make up quickly after the incident that was likely infused with drugs or alcohol, and the decision to call the police was either a neighbor’s or one done in a moment of anger. Many clients say, “My girlfriend never wanted me arrested but the police made her give a statement and now the state has picked up the case.” First, every state criminal case from its inception is captioned Commonwealth of Pennsylvania vs. Joe Defendant. It is never Angry Girlfriend vs. Joe Boyfriend. So, while your girlfriend, wife, or fiancé may be the complainant or victim, it is the Commonwealth of Pennsylvania and the District Attorney’s Office that is bringing the charges. Your girlfriend is simply their victim and witness to try and prove their case of domestic assault against you.

Therefore, it is not your girlfriend’s decision whether to “press charges” and the state never “picks up the case”. Your girlfriend will likely receive a subpoena. A subpoena is a court order to appear in a certain courtroom on a date and time to testify. She has an obligation to follow a court order. Your girlfriend can choose whether she is going to comply with that court order. But, she should understand that if the prosecutor can prove that she was served with the subpoena and she does not appear, they have the right to request a warrant to bring her into court as a witness and/or charged with contempt of court. Whether the prosecution decides to exercise these rights depends on the severity of the case, your criminal background, and other factors. One thing you cannot do is tell her not to come to court or have others do the same. First, a stay-away order is likely a condition of your bail and you must comply with that order or risk incarceration. Second, you can be charged with additional charges including intimidation of a witness and retaliation against a witness should this information be reported.

Finally, many feel that if their girlfriend or fiancé just shows up to court and tells the prosecutor they want to drop the charges, the case will go away. While some prosecutors may take the victim’s wishes into consideration in fashioning a reduced offer to the defense, they will not likely just withdraw the charges. Instead, they will force the victim to testify. Even if she tells a different story that you were not responsible for her injuries or it was an accident, the prosecutor will confront her with the signed statement she provided detectives on the night of the incident and introduce that as substantive evidence of your guilt.

If you have been accused of domestic assault, contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation. He was a former prosecutor who was assigned to the Family Violence and Sexual Assault Unit and is therefore very familiar with prosecution tactics in these matters.

How can I be convicted of domestic assault against my girlfriend if she doesn’t appear for court and the police are the only witnesses to testify?

Under certain circumstances, the District Attorney’s Office may try to prosecute you for domestic assault even if your girlfriend does not appear to testify. If a police officer, neighbor, or other independent witness observed part of the assault when it spilled out of the house, the prosecution may present their case with those eyewitnesses. However, these witnesses likely did not see how the fight started and therefore self-defense is always a viable defense in these cases. Alternatively, prosecutors may use a hearsay exception, called an “excited utterance” to introduce your girlfriend acknowledging you assaulted her while they were on scene. For example, police respond to a radio call for a domestic disturbance. Upon their arrival, your girlfriend comes running out of the house, screaming and crying, and states, “He’s got a knife and he just punched me in the face!” She has a black-eye, her clothes are disheveled and it is clear that there has been a physical altercation.

Even if your girlfriend never comes to court, an experienced prosecutor will properly prepare the officer to lay a foundation to establish the tumultuous situation they entered and explain the actions of your girlfriend before she made her statement about you assaulting her. Once it is clear to the judge that this was a very upset woman who was screaming out what just occurred, the judge can allow the officer to testify to your girlfriend’s statement. Even though it is hearsay, it would fall within the “excited utterance” exception. The theory behind this exception is that a person in distress does not have time to conjure up a lie and therefore the situation provides credence to what is being blurted out.

On the other hand, if your girlfriend is calm upon police arrival, they start asking her questions and her admissions as to your assaultive behavior are only in response to officer questions or some time has passed between the radio call and police arrival, a qualified domestic assault attorney can argue that the proper foundation has not been laid to qualify her statement as an “excited utterance” and can keep her statement out of evidence. If you have been arrested for domestic assault in Philadelphia or the surrounding counties, contact a criminal defense attorney immediately to discuss your case.