No. 239 Special Transfer Dicket, No. 240 Special Transfer Docket, Appeal from the Judgment of Sentences of Voluntary Manslaughter and a Uniform Firearms Act Violation in the Court of Common Pleas of Chester County, Pennsylvania, Nos. 012077 and 012077A.
Michael Reed, Assistant Public Defender, West Chester, for appellant.
James R. Freeman, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 271 Pa. Super. Page 61]
This is an appeal from judgments of sentence entered upon jury verdicts finding appellant guilty of voluntary manslaughter and of a violation of the Uniform Firearms Act, 18 Pa.C.S.A. § 6106 (1973 and Supp. 1979-80). The dispositive issue is whether the trial court committed reversible error by refusing to give a jury instruction requested by appellant pertaining to the defense of self-defense. For the reasons set forth below, we hold that the trial court erred, and accordingly, we reverse judgment of sentence on the voluntary manslaughter conviction and award a new trial to appellant.*fn1
The facts are as follows: Appellant stored materials and did repair work on a lot owned by his aunt. On the evening
[ 271 Pa. Super. Page 62]
of January 8, 1977, he received a telephone call at his home informing him that someone was on the property. Appellant had posted the lot with a "No trespassing" sign. Appellant and his brother, Samuel, drove to the lot. Upon arriving appellant found Alfred (Corky) Bacon and a female friend, Leona Creekmur, sitting in a car parked on the lot. Appellant asked Bacon to leave the lot; after appellant repeated this request several times to no avail, appellant and Bacon began scuffling. At this point, the testimony of the two key witnesses, appellant and Ms. Creekmur, diverge. Appellant testified that he had caught Bacon on the lot on one prior occasion siphoning gas and that on another occasion Bacon had threatened to kill him because appellant had refused to provide Bacon with an automobile towing device. Appellant testified that while he and Bacon were arguing on the evening of January 8th, Bacon threatened to take appellant's wooden leg and beat him with it; in 1959, appellant lost part of his right leg from just below the knee and as a result wore an artificial limb. The prosthetic device appellant was wearing on the night of his altercation with Bacon was fastened by a single strap stretched over the right knee. Appellant testified that shortly after the scuffle began, Bacon struck him in the head knocking him backwards and off balance; fearing that Bacon would incapacitate him by removing the artificial limb, appellant pulled a gun from his trouser pocket and, while falling, fired at Bacon, wounding him fatally. Ms. Creekmur testified that during the course of the scuffle she heard a "smack" sound and saw Bacon fall to the ground; then, she said, appellant walked a short distance away, turned, and fired a pistol at Bacon.
The relevant point for charge submitted to the trial court by appellant stated:
Since the difficulty ensued in the exercise of the defendant's legal right of ejection, the defendant is without fault in provoking the controversy within the meaning of the first element of self-defense.
The trial judge instructed the jury and then ruled on all written requests, specifically ...