*1 search missing so as to invalidate authority issuing of McAfee, Pa.Super. warrant); v. (semble). (1974) 326 A.2d on question presented law sparse We examined (as the issuing authority that the role of the and conclude cause) was probable or absence of presence arbiter of the Fourth Amendment of one’s perverted contravention and seizures. free of unreasonable searches right be preserved issuing authority of the essential function Judge signature Battle affixed both bar when cause probable application affidavit search warrant to authorize the cause” existed “probable to conclude that to the The contention appellant’s premises. search of the meritless. contrary is found be Judgment of sentence affirmed. Pennsylvania
COMMONWEALTH MAYFIELD, Appellant. Charles Pennsylvania. Superior Court Argued May 30, 1991. Filed Jan. *3 Gelb, for
Marilyn Philadelphia, appellant. J. Com., Burns, for Atty., Philadelphia, Asst. Dist. Hugh appellee. WIEAND, OLSZEWSKI, ROWLEY,
Before KELLY, POPOVICH, MONTEMURO, BECK, JOHNSON ELLIOTT, FORD JJ. and ELLIOTT, Judge:
FORD aggravated conviction a Appellant appeals by his crime generally. of instruments of possession assault and Appellant was of felonious acquitted aggravated assault and criminal conspiracy. Timely post-verdict motions were and appellant denied was sentenced two and one-half to imprisonment conviction, five years on each sentences to run concurrently.1 giving incident rise this appeal occurred on No-
vember 1983. John Maurer and Ernest Miller were driving their cars in opposite directions on narrow Cam- bridge in Philadelphia, Street and each found he was unable to pass the other. A dispute arose regarding who should up back and to pass, allow the other especially as Maurer’s car had stalled. Appellant, Charles a Mayfield, passen- ger car, in Miller’s Mayfield Maurer and exchanged words and fight ensued, a street which resulted in appel- lant’s Appellant arrest. charged ag- simple gravated involving assault a swinging baseball bat at Maur- er, biting on him the and inflicting chest stab wound his chest with knife. Appellant admitted at trial that he bit Maurer on the chest pulled and that he his knife during the course the fight. However, he denied he inflict- ed any upon stab wound Maurer and rather testified that knife, when produced Maurer ran away.
The issue presented by as the Commonwealth for this court’s is review whether is appellant entitled to an instruc- tion on self-defense when denied committing the act for which he was convicted.
Self-defense defined statute as follows: The use of force or upon person toward another is justifi- *4 able when the actor believes that such force is immediate- ly for necessary purpose the of protecting against himself 1. panel This case grant comes before this en banc on the of the application panel reargument. Commonwealth’s for A of this court initially 29, 1988, appellant's judgment July affirmed of sentence on JJ.; (Wieand Sole, J., Cavanaugh, dissenting). and Del Appellant then 19, petitioned 1989, Pennsyl appeal July for of allowance and on the Supreme per directing vania Court a issued curiam order this Court to determine on the merits whether the trial court should have instruct remand, jury ed panel the on self-defense. On the same issued a 18, 1989, vacating September judg memorandum decision on the remanding finding ments of appel sentence and for a new trial that lant was entitled to a self-defense instruction.
564 present the person force such by of unlawful
the use occasion. 505(a).
18 Pa.C.S. § 505(b)(2) is further by of limited use § use of such force under circum- except prohibits which is that such force neces- “the actor believes stances where against bodily himself death or serious sary protect to which, “[fjorce force is defined as under Deadly injury.” used, capable of readily in it is the circumstances which injury.” or 18 Pa.C.S. bodily death serious causing § of be submitted may Before the issue self-defense consideration, a claim of self-defense to a for valid law, a of and this determina made out as matter must be may Such claim by judge. made trial tion must be evidence from whatever source. “Such consist of evidence case, or part the defendant as of may adduced be in found the Commonwealth’s own case conceivably, may be cross-examination.” Com through in chief or be elicited Rose, 380, 389, v. monwealth Pa. necessary
(1974) (similarly discussing type evidence intoxication). However, in issue such place a defense three speak specific from source must evidence whatever in for a to be issue placed elements for claim of self-defense consideration. jury’s as Thus, interpreted through statute and provided by as law, self-defense it establish the defense of our case a) the free from slayer shown was fault must be difficulty resulted continuing or which provoking reasonably b) that must have slaying; slayer or danger that he imminent death believed harm, necessity to use and that there great bodily therefrom; c) to save himself such force order or to avoid the any duty to retreat did violate slayer 468 Pa. Myrick, Commonwealth v. danger. supra Cropper, (1976); A.2d 598 [463 345 A.2d 645] Black, 47, 52, A.2d from whatever source (1977). If there is evidence any *5 565 will support these three elements then the decision as to whether the claim is a is valid one left to jury the and the jury charged must thereon properly by be the trial court.
Our case
makes
law
it
clear that
crystal
the
upon
self-defense must be given
request
the jury
where
possible
would
for finding
have a
basis
it. See Common-
Black, 474
47,
wealth v.
(1977).
Pa.
Thus,
if there was evidence which
sup-
would have
ported
self-defense,
the claim of
it
was for
trier of
fact to pass upon that
for
improper
evidence and
the trial
judge to exclude such
refusing
consideration
Gonzales,
Commonwealth v.
charge.
597,
463 Pa.
345
Lowe,
v.
(1975);
A.2d 691
Commonwealth
357,
460
(1975).
Commonwealth v.
507, 512,
491 Pa.
421 A.2d
accord,
(1980);
Commonwealth v.
Bailey,
324 Pa.
Super.
(1984)
A.2d
and Maione,
382 Pa.Super.
(1989).
Having defined self-defense and the functions of both the trial court and the assessing evidence claim, relative to the we must now decide whether a claim of self-defense can be made out as a matter of law suffi- *6 denies if the defendant instruction the on go to to
cient deadly the use of represented which committing injury the force. is not entitled appellant that the contention of support
In
the
stabbing
he denied
instruction because
to a self-defense
court’s
supreme
to our
cites
victim, the Commonwealth
A.2d
17,
Pa.
413
Gay,
v.
489
decisions Commonwealth
in
Powers, v.
Commonwealth
(1980),
460 Pa.
Young,
v.
(1979), Commonwealth
A.2d 1013
441 Pa.
Gray,
v.
Commonwealth
(1975) and
91,
In of trial
ineffectiveness
relief,
alleged the
Gay
PCHA
of
refusal
to
trial court’s
appeal
the
failing
for
counsel
first
his conviction
following
on self-defense
battery.
and
assault
aggravated
murder and
degree
the Common-
this issue reviewed
deciding
court
supreme
occurred.
shooting
of the
which
version
Gay’s
and
wealth’s
evidence, appellant
According to the Commonwealth’s
home of
at the
party
at a
Stockton were
Vaughan
one
and
An
wife,
April
on
Gay,
Falivia
estranged
his
accused Stockton
place
took
which
exchange
him to leave
invited
his wife and
being
involved
all
wife,
Stockton
went
his
.party. Appellant,
appel-
and then
exchanged
were
Further words
outside.
shot
carrying,
he was
gun
that
lant
took out
the street.
his wife down
Stockton, and chased
wounded
found
wife was
Appellant’s
heard.
shots were
Several
that Stockton
contended
Appellant
the police.
dead by
were
he and Stockton
it
off while
that went
gun,
had the
him and
then chased
it, and that Stockton
struggling with
his wife.
cited Common-
The court
20,
wealth
at fault
if,
being
acting in self-defense
have been
shootings under
incident,
he had done
provoking
protect
necessary
his action was
reasonable belief
However, harm.
bodily
serious
from death or
himself
court then decided “[ajppellant contended that Stockton was
perpetrator.
Since he denied having done the shootings
all,
at
there was no
issue of self-defense.” 489 Pa. at
(citation
appeal judge trial committed reversible error in refusing grant request to instruct the jury concerning law self-defense. Powers relied on his own testimo- as an ny raising inference that he was acting self-de- *7 fense.
Appellant testified that he and his companions went to the area of the intersection of 32nd and (the Berks Street area where the stabbing occurred) looking for girls some met, he had recently and that while they were a asking man if young girls, knew the gang suddenly emerged from a store wielding began knives and chasing them. While appellant afraid, testified he was only physical contact which he said place took was that some- one hit and pushed a ‘dude’ who inwas front of them on Street, 31st and that a ‘dude’ came off a porch and tried to grab Kemp (co-defendant) Howard but that ‘dude’ fell back. Appellant flatly denied stabbing anyone and de- nied that any of his companions had been or injured had stabbed anyone.
Before issue, self-defense is in there must be evidence introduced, source, from whatever to justify finding that killing may have been done in self-defense ... Our review of the record convinced us that the requisite elements of self-defense have not been presented. noted,
As appellant denied knowledge stabbing. any The only physical contact admitted by appellant way in the of he one who was
hitting pushing person and, another inferentially, perhaps jostling and his friends did Certainly, testimony off a porch. had come who provoking of these ‘dudes’ were not that either establish sufficient to in a manner acting or were difficulty it was to use necessary reasonable belief that instill a cases, In we have held them. similar against force deadly that he or his steadfastly defendant denies where a that against force victim deadly used companions injected of self-defense was not otherwise the issue where defense, or the prosecution either the into the trial not error. subject charge upon failure to (citations omitted). In A.2d at 1015 484 Pa. at essence, presented merely that the evidence the court found nothing had occurred and Pow- fight that a established that Powers other evidence indicated testimony any ers’ or in defense of himself. utilized supra, v. Young, Young argued also In for the trial judge that it was error appeal on direct voluntary trial for self-defense refuse to issue, the with the manslaughter. quickly disposing stated: court erred in judge the trial argues next
Appellant charge relating appellant’s requested refusing give confession agree. Appellant’s self-defense. We do committed after an the homicide was established *8 he and after which ob- initial encounter with victim the victim to continue sought out gun tained out of the rule of takes the case certainly This affray. in no Moreover, testimony trial appellant’s self-defense. testified at trial Appellant self-defense. way establishes facts, Under these not commit the homicide. did on trial refusal to judge’s find no error we self-defense. See Camp, [459] (1975) A.2d [ ]. Therefore, though even at 334 A.2d at at trial as presented evidence conflicting there was force—i.e., using deadly the act of he committed whether Young’s introduced confession and his own trial testimony, the court still found that the homicide, circumstances of the definition, precluded a by claim of self-defense because he no time acknowledged the use of force for his own protection.
It is interesting to note that Young also argued an alibi instruction should have given, however, been the court without discussion of the inconsistency between the two requested instructions, summarily determined that Young’s testimony own precluded the defense of alibi.
Finally, Commonwealth v.
Gray, supra,
defendant
argued
appeal
from a murder conviction that the trial
court should
given
have
a self-defense instruction. Gray
had testified that he joined an ongoing fight
involving
several individuals and that while he admitted punching the
victim, he denied steadfastly that he
possessed
ever
a knife
or that he stabbed the victim. Noting the three elements
which must be satisfied before a defendant can invoke the
self-defense,
defense of
infra,
court stated:
[AJppellant’s
as to the
testimony
death,
victim’s
if be-
lieved, would establish that someone else stabbed the
victim.
evidence,
believed,
Commonwealth’s
if
shows
a homicide committed by Gray. The issues of self-de-
fense or defense of another
injected
were not
into this
case at trial by either the Commonwealth or the appel-
lant.
being so,
That
the failure to charge upon the
subject
was not error.
Zubik,
tion on self-defense in necessary.” not Homi C.J.S. (1944)2 cide 379 n. 16 § 96,
When an issue of self-defense is
to the
jury
particular
we ask the
to assess whether
defendant’s
that he
danger
belief
immediate
As set
Jury
reasonable.
out
the Standard
Instruction
Institute, 9.505(2)
Bar
promulgated by
Pennsylvania
Gray
2. court went on to hold that the accused had the burden of
However,
proving
preponderance
self-defense
of the evidence.
part
holding
repudiated.
of the
of the court has since been
this
(1974),
Winship,
See In re
397 U.S.
90 S.Ct.
defendant denies the all, use of deadly force at may we ask hardly if determine the defendant reason- ably believed such force was necessary. By denying such defendant, use of deadly essence, force a negates one of the elements of being self-defense—that he must have believed himself reasonably danger be imminent harm, death or bodily and that the use of upon person or toward another necessary prevent such harm. specific
It is the denial of the use of deadly force for protection precludes one’s own which the claim of self-de- otherwise, being put fense issue. To hold the possi- has instance, bility for absurd results. For a defendant could request jury consider self-defense at the while claiming same time a defense of identity mistaken or alibi. cases, in closer such as Even those which the facts present a case for an accidental shooting, request for an instruction self-defense has been denied as incon- being sistent unless the circumstances of the case allow that the *11 accidental or death occurred injury within the course of the defending actor himself. question This was addressed by supreme Webster, our court Commonwealth v. wherein a defendant’s raised an inference of kill- testimony accidental ing, and therefore the defendant not entitled was to a on self-defense.
The Commonwealth’s witnesses testified appellant that pointed gun Only appellant at the victim. claimed the pointed victim at him. gun He testified that as he free, struggled pistol to wrestle the it discharged. At appellant’s explanation suggests killing best that the may However, have accidental.. been it also destroys self-defense; second element of appellant that reasonably believed that he in imminent danger death or harm. great bodily appellant When was specifically upon asked cross-examination if he had acting been self-defense, appellant conceded that he had not. At no time there any testimony intentionally fired the gun attempt an to defend himself. 322, Webster, 491, Commonwealth v. 490 Pa. 416 A.2d 493 (1980). similarly This court has held v. Terrell, 136, 140, 133, (1980): Pa.Super. 276 419 A.2d 134
Moreover, appellant’s evidence did not show that he had acted in testimony self-defense. Some of his indicated that the killing was accidental. Some of his testimony intentionally indicated that he had shot the This victim. showed that he was in control of the testimony gun, therefore, acting not to protect himself from danger. Thus there was no evidence that appellant acted in self defense. also,
See Commonwealth v. Young, supra Common- Maione, wealth v. supra, (Concurring Opinion Sole, by Del J.).
In charging
jury,
“it is the primary duty of the trial
judge to
issues so
clarify
jury
may understand the
questions to
Beach,
be resolved.” Commonwealth v.
37, 40,
712,
(1970)
264 A.2d
citing Commonwealth
Meas,
41,
(1964).
v.
415 Pa.
We hold today, that where a defendant denies the act of using deadly himself, force in defense of negated he has one of the self-defense; therefore, elements of may *12 avail himself of an instruction on justification even though evidence from other sources would be sufficient put to the claim in issue.
However, thus, having stated it is not so clear to this court herein, that the appellant has denied the use of deadly Hence, as we have defined it. a review of the presented evidence by the Commonwealth and required for a determination as to whether there is any evidence, source, from whatever which would make out claim for self-defense.
The Commonwealth’s evidence presents the substantially following:
The trial evidence established that on November a.m., victim, at about 11:45 Maurer, John drove Street, Cambridge
his car east in the block lane and one lane. driving parking narrow street with one Street, another car Cambridge At the end of opposite the victim’s vehicle. and headed west toward entered car, Miller, and defen- of the Ernest The driver second dant, to someone while the stopped speak a passenger, Miller Although in his car. proceed waited to victim car to he pass, around the victim’s could have driven and up stopped his victim’s instead drove vehicle bumper hit the repeatedly foot Miller then away. one shifted into car his own. victim the victim’s up his car to attempts and made several back reverse confrontation, time. the vehicle stalled each but avoid car, of his Frustrated, got approached out victim seat, explained and in the driver’s Miller at the began cursing his car. Miller to move unable 7/2/84, (N.T. victim, altercation ensued and a verbal 11-16). defendant, the victim had whom point,
At that car, noticed, side of Miller’s passenger from jumped bat, the victim. approached and a baseball carrying attack, Miller meet defendant’s the victim turned to When behind, from grabbed and the victim left the driver’s seat twice, swung Defendant the bat his arms. immobilizing and grasp free from Miller’s had broken but victim Both defendant and the the blows. successfully blocked A fighting. co-worker ground then fell to the victim assault defendant witnessed the the victim’s who Defendant, who cohort, to restrain Miller. intervened chest; victim, bit the victim on top of the lying men rose to Both then hit defendant twice. the victim hunting knife out a ten-inch pulled feet. Defendant their left chest victim, him the stabbing at the lunged 7/2/84,15-18, 22, (N.T. weapons no The victim had area. 75-81111, 101). 2-3. brief
Commonwealth’s night question, of the events on the version Appellant’s *13 substantially. differs surprisingly, Mayfield Charles on testified his own behalf this trial, denying aggressor. he was the He said Maurer told him and the to back up block, driver an entire and at time began same he hollering obscenities at them. Id. 136. These obscenities caused him and Miller holler to He got also. Id. testified Maurer then out of car and his him pulled out of the car in he which had been passenger. Mr. Mayfield continued his testi- by account fying Maurer choked him and got hug. him a bear Id. 138-139. Maurer’s much larger size resulted Mr. Mayfield standing at this time such a position that his chest, face came to only 138-139, Maurer’s Id. Maurer feet, 2 being 6 inches and 180 pounds. Id. 32. fell to They ground with Mr. Mayfield top on Maurer and Maurer holding still him around the neck. It juncture was at this Mr. said Mayfield only way he could cause to Maurer release him was him to bite (Mr. the chest. Id. 140-141. Mayfield testified further that the reason he Maurer bit was because Maurer was death.) him choking to cross-examination,
On Mayfield causing admitted bite, but denied stabbing Maurer. Id. 151. He said knife, Maurer told him enough he had when saw the (Maurer) and this caused him away. to run He tried Id. to himself free from Maurer’s grip but was unable do pulled so until he out knife. 156-157. Mayfield’s Id. testimony only was the defense evidence introduced. Appellant’s brief at iii-v. as noted Additionally, appel- lant, argument defense counsel’s entire closing centered on a theory of self-defense. context,
Within this factual appellant was charged aggravated assault, two counts of of the specifically, felony second degree, aggravated assault as a misdemeanor first degree.3 Appellant was of the convicted less serious 2702(a)(4) under 18 “attempts Pa.C.S. which reads § conviction, Subsequent appellant’s appel- under section which degree. upgraded felony lant was convicted was second Pa.C.S. (effective 2702(b) 1987). February § *14 causes knowingly bodily injury or intentionally
to cause or weapon.” defining deadly another with a to court instructed as follows: the trial jury, to Now, assault also be a misdemeanor aggravated may of is a less serious form degree, of the first which are 2 elements to the assault. Now there aggravated misdemeanor of the assault as a aggravated crime of degree. of the first degree—misdemeanor second bodily to cause First, attempted the defendant that notice, Now, serious felony, Maurer. you to John injury I have bodily injury which injury, misdemeanor bodily you. defined for already
Now, attempted the defendant to in order to find that this, engaged must find that you do defendant toward step constituted a substantial conduct which Maurer and that his to John causing bodily injury intentional or in other regard in this was conduct to cause such object it was his conscious words injury. in the deadly weapon used a
2. That the defendant If for after already you. I defined which have attempt find the Common- the evidence considering you all all of a reasonable doubt beyond has wealth established stated, find the you I should elements which have assault as a misdemean- aggravated guilty defendant or, guilty must find the defendant otherwise you aggravated assault. assault
Now, Aggravated that. let me summarize just attempt constitutes an degree of the second felony as a assault which Aggravated bodily injury. serious commit is an at- degree of the first a misdemeanor constitutes that’s the bodily injury, or bodily injury to cause tempt charge) (N.T. 75 and 76 distinction. Hence the N.T., at 75-76. 7/3/84 Testimony,
Notes of to consider charged was jury which appellant conduct of bodily injury to cause attempted appellant whether that if was told weapon. jury a deadly the victim with to cause intending knife appellant pulled found that they victim, appellant could convict bodily injury they However, what the was not told aggravated assault. pulled if found that his knife they appellant defending that he was himself then his reasonable belief justified. actions were an admission argues
The Commonwealth
that without
victim,
that he stabbed the
no self-defense claim
discussion,
made.
as noted in our earlier
has been
While
preclude appellant
denial of the use of
would
claim,
asserting
from
his self-defense
we do not find that
*15
force,
has
appellant
deadly
merely
has denied the use of
but
Maurer once he
his
causing
injury
pulled
denied
the
appellant
knife.
the
even if
theory,
Under
Commonwealth’s
in
lunged
had testified that
defense of himself he
at Maurer
the full intent to
did not know that he
injury
with
cause
but
mark,
in fact hit his
he still would not be entitled to a
the
charge on self-defense because he did not admit
actual
However, such an
that it
injury.
argument ignores
was
injury
to the victim that the
was instructed to focus
on,
rather the actions or conduct of
which led
appellant
but
injury,—that
deadly
use
force. We find
appellant’s testimony
pulled
preparation
that he
the knife
against
to use it
the victim defense of himself to
abe
showing
put
sufficient
of a use of
force to at least
deadly
of self-defense
question
jury.
before
See Common
Jones,
(1974)
332
464
Pa.Super.
wealth v.
A.2d
(mere
force)
wielding of a knife amounts to use of deadly
approval
Cutts,
cited with
281 Pa.Su
Commonwealth v.
(1980).4
In Pa.Super. Commonwealth v. (1984), A.2d 902 this court determined that the mere act of gun attempt at an individual while pointing denying any revolver, to shoot the sufficient conduct to constitute assault; therefore, an the defendant should have been permitted Implicit to raise the issue of self-defense. in this may very disadvantage well work to the We note that these cases they in that hold that on the merits of his self-defense claim response deadly justified may such force is not be excessive non-deadly such force as a victim’s fist.
holding pointing is that the mere of the revolver constituted accord, using deadly an act of force. In Rittle, 168, (1981) (defendant Pa.Super. charge entitled to self-defense where he admitted pointing gun alleged at victim but that victim the aggressor. for simple grant- Conviction assault reversed and new trial ed.) Gonzales,
In
again citing
Powers and
had
the trial
Gray,
argued
properly
court
refused to
on self-defense because the defendant denied that he at
tempted
pointed weapon
to fire the
In
police officers.5
cases,
distinguishing these
the Gonzales court stated:
cases,
In both
the victims were stabbed to death.
case,
homicide,
each
the defendants
charged
were
they
knowledge
any
however
both denied
stabbing.
basis,
On
it was held that self-defense was not an
issue and instructions on self-defense
not required.
were
cases,
“In
Powers court stated:
similar
we have held
a defendant
denies that he
steadfastly
where
or his
victim,
companions
against
used
the issue of
injected
where
self-defense was not otherwise
defense,
prosecution
into the trial
either the
or the
*16
failure to charge upon
subject
the
was not error.” Com-
Powers,
at
monwealth v.
Therefore, Gonzales, consistent with find that appel- we lant's pulled admission that he his knife because Maurer me,” (N.T., 141) going “said he was to kill 7/2/84 at is a specific It is unclear from the decision under what subsec- Gonzales charged, tion of 18 Pa.C.S. 2702 the defendant was however such is § not crucial to our discussion herein. of deadly he used defense showing that sufficient self-defense. at least for an instruction on himself to allow produced deadly that he the at no time denied Appellant in his own defense. intent to use it weapon with appel- the as to province jury of whether It remains duty to to whether he had a provocation, free of as lant was danger he that retreat, as to whether his belief reasonable, as to and harm or death was bodily serious under force was excessive use whether circumstances. with today is consistent emphasize that our decision
We Powers, Young and in Gay, court’s decisions supreme Rittle, and Gonzales this court’s decisions Gray instruc- jury did not receive the Terrell. appellant Because trial, on the evidence was entitled based tion to which case must be vacated and sentence judgment new for a trial. remanded for a Case remanded of Sentence vacated.
Judgment new trial.
WIEAND, J., concurring files statement which a ROWLEY, J., joins.
WIEAND, Judge, concurring: hold a self-defense in the I would I concur result. there is request whenever given upon must be source, finding. a evidence, such justify from whatever Brown, believed, case, which, if evidence instant there was In the in self- acted finding justified have would Therefore, requested was error refuse it defense. thereby prevent on self-defense instruction agree majority I considering defense. from such *17 a new trial. granted must be P.J., ROWLEY, joins.