Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Indictment Nos. 314 and 316 October Term, 1974. NO. 1941 OCTOBER TERM, 1975.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a dissenting opinion in which Hoffman and Spaeth, JJ., join.
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Appellant was tried before a judge and jury on indictments charging simple assault and aggravated assault,
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carrying a firearm on public streets or public property in a county of the first class, unlawfully carrying a firearm without a license, and conspiracy.*fn1 He was adjudged guilty of all charges except conspiracy, of which he was acquitted.
The facts viewed in the light most favorable to the Commonwealth and fully supported by the evidence are as follows: Around 5:30 in the afternoon of September 5, 1974, Linda Wilson was in her high-rise apartment number 11F on the eleventh floor of the Wilson Park Project at 2508 Jackson Street in Philadelphia, with her two children, ages 9 and 8. She was ironing and frying some chicken. A loud knock came at the door; she asked who it was and a man's voice answered "Bo," whom she knew as Andrew Easley. She opened the door, he pushed his way in (he was followed by his brother who was not being tried) shoved her backwards against the refrigerator, pointed a small black gun at her and said he'd blow her brains out because she beat his mother. She fell to the floor, he kicked her in the thigh, he threw the hot grease from the frying pan on her and he seized a dish rack and beat her with it. He tried to fire the gun but the bullets kept just jumping out and falling on the floor. He demanded that she get up and give him her "sister's" address. When she arose he grabbed her by the robe and swung her (he is 6 feet tall, she is 4 feet 11 inches) into the living room. There he picked up a glass flower bottle and struck at her. She fended the blow with her arm; the bottle broke into pieces. She went into her bedroom to get the address he had demanded, she wrote it on an envelope; then he hit her, knocked her onto her bed, then he shot her through the chest. In response to her alarm, neighbors called the police who came to the apartment and arrested the two Easley brothers who had returned to retrieve Andrew's jacket
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from the Wilson apartment in which jacket he had his car keys. A neighbor had seen appellant and his brother enter the Wilson apartment, with appellant holding a small gun in his right hand. The police found a bullet on the bed and a spent shell on the floor of the bedroom. Ballistic tests showed that the bullet had been fired from the .25 caliber automatic gun found on the appellant.
The appellant's version of the shooting was somewhat different. He admitted he went to the apartment of Linda Wilson on the late afternoon of September 5, 1974, with his brother accompanying him, that he knocked on the door, that Linda asked who it was, that he said it was "Bo" and that she let them in. He said he put his jacket across the chair and sat down, that she offered him some wine from a bottle, that he started to ask her about his mother (Linda had taken his mother to the hospital and appellant had brought Linda back from it), and, when he mentioned the $1,400 that his mother "had got," that Linda became "disturbed". He said she tried to "dash" a pan of grease on him, that he jumped out of the way; then she got a gun from between the stove and the sink and pointed it at him; that he grabbed the wine bottle, threw it at her, rushed her and grabbed the gun. He said they tussled over the gun and while doing so it fired, and she was shot while they were in the kitchen. He said he took the gun from her, "rejected" the bullets, picked up some shells from between the stove and the sink, and was going to take the gun and the shells over to the police. He said he ran into the police while he and his brother were going downstairs. He testified that he was going to tell the police about the accident; however, when he ran into the police he said he "asked them would it be all right with him if I remain silent", and the detective said "you can do what you want to do". Appellant testified that he received no warning of his constitutional rights. He did in fact, however, remain silent.
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The appellant raises some ten issues, not all of which issues have been preserved for appeal. He complains first that the trial judge should not have charged that the appellant-defendant had the burden of proving self defense. The pertinent part of the court's charge was as follows:
"Now, the person who is accused of the crime is not required to present any evidence or prove anything in his own defense, except, of course, with respect to self defense which is the defense of the defendant in this case as his lawyer said to you."
The Commonwealth points out that appellant in his points for charge requested the court to charge that the burden of proving self defense was upon the defendant. His requested charge number 15 was as follows:
"15. If the evidence presented by Mr. Easley concerning his claim of self defense, either alone or together with the evidence in the case, convinces you by a preponderance of the evidence that he was attacked by the complainant and that his actions were induced by a reasonable belief that he would suffer bodily harm, then you must find Mr. Easley not guilty. Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952)."
This requested charge places the burden of proving self-defense on the appellant. The court charged as requested and appellant cannot now properly complain that he didn't ...