Appeal from judgment of sentence of Court of Common Pleas of York County, Jan. T., 1969, No. 142, in case of Commonwealth of Pennsylvania v. Ervin T. Banks.
Mark Woodbury, III, Assistant Public Defender, for appellant.
Jan M. Wiley, Assistant District Attorney, with him Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Dissenting Opinion by Wright, P. J.
[ 216 Pa. Super. Page 406]
The issue in this case is whether a criminal defendant is precluded by Pa. R. Crim. P. 1119(b) from raising a basic and fundamental error in the charge of the trial judge in his motion for a new trial where he did not in any manner object or except during the trial.
Appellant was convicted by a jury on two counts of simple assault and battery and acquitted on one in a trial concluded on May 14, 1969. The events giving
[ 216 Pa. Super. Page 407]
rise to the charges occurred on a sidewalk outside a restaurant in the City of York. No weapons were involved, only fists. Appellant engaged in a fight with one Terry Lippert which resulted in Lippert being knocked down. At that point a friend of Lippert's, Norman Lightner, and a bystander, Dennis Smith, intervened. Appellant was acquitted of assaulting Lippert but convicted of assaulting Lightner and Smith.
The defendant alleged self-defense. In its charge the lower court said defendant was under a duty to retreat before using force to defend himself, and that if he had an opportunity to retreat and did not avail himself of the opportunity he could not assert self-defense.
That is not the law of Pennsylvania. We have so stated a number of times in decisions of this Court. Commonwealth v. Mitchell, 181 Pa. Superior Ct. 225, 124 A.2d 407 (1956) and Commonwealth v. Roman, 52 Pa. Superior Ct. 64 (1912). In Mitchell we said at 230, 124 A.2d at 409: "'The doctrine of retreat as developed in homicide cases is not by the weight of authority regarded as applicable to cases involving a mere battery, especially where immediate action appears to be necessary for self-protection.' 5 C.J., Assault and Battery, § 236; 6 C.J.S., Assault and Battery, § 92c. Also, 'The ancient doctrine which makes it the duty of a person assaulted to "retreat to the wall" before he is justified in repelling force by force has been generally modified in the United States. The rule now generally accepted is that one who is assailed may meet force with force without retreating, so long as he uses only such force as is necessary, even though he might with absolute safety avoid the threatened injury or bodily harm by retreating.' 4 Am. Jur., Assault and Battery, § 47." And, in Roman we said at 67: "It may be conceded that if the defendant had only used his naked hands in assaulting the prosecutor the court
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would not have been warranted in instructing the jury that before resisting, the defendant ...