Nos. 412, 429 January Term, 1977, Appeal from judgments of Sentence of the Court of Common Pleas, Criminal Section for the County of Philadelphia, at No. 977, 978 January Term, 1976
Ronald W. Morrison, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Ellen Mattleman, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a concurring opinion.
The question raised in this appeal is the interrelationship that can arise, under a given factual situation, between the defense of others and self-defense. The trial court did instruct the jury of appellant's right to use deadly force in defense of another, but refused, although requested, to
charge the jury as to appellant's right to act in self-defense.*fn1 Under the facts of this case we are constrained to conclude that it was error to refuse this instruction and
consequently the judgments of sentence must be reversed and a new trial must be awarded.
On December 24, 1975, appellant shot and killed Craig Johnson at the Jubilee Bar at 16th and Fountain Streets in Philadelphia. The day before the shooting, appellant was told by his cousin, Estelle Wilson, a barmaid at the Jubilee Bar, that her former boyfriend, the victim, had been beating and threatening to kill her. On December 24, at approximately 7:50 a. m., appellant went to the Jubilee Bar to await the victim's arrival. Johnson arrived between 9:00-9:30 a. m., went behind the bar and started by beat up Estelle Wilson. Appellant, noticing that Johnson had his hand in his pocket, pulled him away from Wilson. Johnson spun around and produced a gun. Appellant and Johnson struggled over the gun and it fell to the floor. Appellant seized the gun and shot the victim in a further struggle for possession of the weapon. Appellant was arrested later that day and charged with murder, possessing instruments of crime and prohibited offensive weapons.
The theory of the defense in this case was that although he initially entered the affray in defense of his cousin, Estelle Wilson, his ultimate use of deadly force was to defend his own person. Thus while the defense of another was important to establish who was the initial aggressor, it did not prove a justification for the use of deadly force since at that time deadly force ...