Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, No. 1367, in case of Commonwealth of Pennsylvania v. William Sanders.
John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him Charles A. Klein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Concurring Opinion by Hoffman, J.
[ 219 Pa. Super. Page 80]
Jurisdiction of this case is now vested in the Supreme Court of Pennsylvania. The record was remanded to this Court by the Supreme Court, on May 10, 1971, so that we might prepare and file an opinion in support of our order of November 13, 1970, affirming the judgment of sentence upon the appellant. See 217 Pa. Superior Ct. 410, 272 A.2d 190 (1970). This opinion is filed in response to the Supreme Court's order.
Appellant was charged with assault and battery, aggravated assault and battery, and assault and battery with intent to commit murder. After a trial before Judge Leo Weinrott and a jury, he was convicted on all counts and sentenced.
Appellant asks for a new trial on the basis that the judge improperly charged the jury on self-defense. Appellant argues that it was improper for the judge to charge: (1) that to justify self-defense it must appear that the accused had no other possible means of escaping and that his act was one of necessity and (2) that the accused had the burden of proving self-defense by a preponderance of the evidence.
[ 219 Pa. Super. Page 81]
There is no need to spend much time on the second objection because the judge was obviously correct. In two very recent cases, the Supreme Court of Pennsylvania has reaffirmed its prior holding that self-defense is an affirmative defense which the defendant has the burden of proving by the preponderance of the evidence. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970); Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970).
In the first objection, the appellant does not make an issue on the charge that his action had to be necessary for his defense, but claims that it was error to charge that a defendant must retreat before defending himself in a non-homicide case. He relies upon our decision in Commonwealth v. Banks, 216 Pa. Superior Ct. 405, 268 A.2d 230 (1970), claiming that the case at bar is indistinguishable from Banks. We disagree, but a recitation of the facts of this case is necessary to an understanding of the differences.
The victim was a young woman. The events occurred in or about two bars in West Philadelphia. According to the victim and her witnesses, she was in the first bar at about 9:15 p.m., on April 20, 1968, when appellant came in and asked her to dance. She refused and appellant hit her. She ran out of the first bar to a second bar not far away where she went into the bathroom. The appellant followed her to the bathroom and broke in. When she tried to escape, he broke a beer bottle and started hitting her about the face with the broken bottle. She said that she had no weapon in her hand at any time and that appellant threatened to kill her. She was corroborated by another woman who was with her at both bars. Presbyterian Hospital records showed that the victim was ...