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decided: September 22, 1980.


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.

Author: Nix

[ 491 Pa. Page 509]


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

[ 491 Pa. Page 510]

    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

[ 491 Pa. Page 511]

    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 was resorted to, Estelle Wilson was not then in imminent danger of death or serious bodily harm.

Under the court's charge the use of deadly force could only be employed if it was necessary to protect Estelle Wilson from the danger of death or serious bodily injury. It is clear, under the instant facts, that the jury had no basis for finding the killing justified within the confines of that instruction. The only theory of justification available to appellant under the facts of this case was that of self-defense.

[ 491 Pa. Page 512]

Our case law makes it crystal clear that the charge of self-defense must be given upon request where the jury would have a possible basis for finding it. See Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).

While there is no burden on the defendant to prove a claim of self-defense, it is nevertheless required that before such a defense is properly in issue at trial, there must be some evidence, from whatever source, to justify such a finding. Commonwealth v. Black, supra, 474 Pa. at 53, 376 A.2d at 630. See also Commonwealth v. Walley, 466 Pa. 363, 367 n. 2, 353 A.2d 396, 398 n. 2 (1976); Commonwealth v. Cropper, 463 Pa. 529, 537-538, 345 A.2d 645, 649 (1975).

Thus, if there was evidence which would have supported the claim of self-defense, it was for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge. Commonwealth v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975); Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975).

To avail oneself of deadly force for self-protection, three factors must be found to exist. First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat. 18 Pa. C.S.A. ยง 505; Commonwealth v. McQuire, 487 Pa. 208, 409 A.2d 313 (1979); Commonwealth v. Black, supra; Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975).

As to whether appellant was free from provoking the difficulty, the jury was properly permitted to consider his right to defend his cousin. See Commonwealth v. Jackson, 467 Pa. 183, 355 A.2d 572 (1976).*fn2 This fact is not

[ 491 Pa. Page 513]

    questioned by the Commonwealth and the charge given did in fact permit the jury to properly weigh the threshold question as to who was the initial aggressor. The problem arises because the ultimate question to be answered was improperly framed. The jury was expressly directed to consider only whether "the use of deadly force was then and there necessary to protect Estelle Wilson from the danger of death or serious bodily injury . . ." Stating the issue in this manner, the trial court precluded a finding that the force used was reasonably necessary to protect appellant from the danger of death or serious bodily harm.

The Commonwealth now urges that the failure to give a charge as to self-defense can be justified upon the ground that the fatal shot was fired only after the threat of imminent danger of death or serious bodily harm had been removed. While this is a possible construction of the facts, it is not the only reasonable interpretation that may have been drawn from the evidence presented. Since we believe that there was a reasonable interpretation of the evidence that would have been consistent with self-defense, we cannot accept this argument of the Commonwealth.

The only evidence on this point is found in the statement given by appellant to police officials at the time of his arrest and introduced at trial by the Commonwealth.

[A]bout 9:00 or something, and he came in the bar and when he came in the bar he walked right behind the bar and grabbed her and start beaten [sic] her up and he had his hand in his pocket. When he pulled the thunderball, I went and grabbed him. When I grabbed him he spin [sic] around and pulled out a pistol. And we tussled with the gun and I grabbed him and the gun fell and I got it and I shot him.

From this testimony it cannot be said, as a matter of law, that appellant had sufficient possession of the weapon so as to end the threat to himself and to permit his withdrawal

[ 491 Pa. Page 514]

    without the possibility of further injury. There is no indication in this record that the deceased at this point demonstrated any intention to cease his assault or to refrain from further efforts to regain possession of the weapon. This record does not conclusively establish that at the instant the fatal shot was fired appellant was insulated from any further threat of harm.*fn3 In his opinion the trial judge assumed that appellant's momentary possession of the weapon placed him in the position of a "provocateur." (Slip opinion at p. 6). This was a conclusion that could only have been properly reached by the finder of fact after having been given proper instructions by the trial court.*fn4

In Commonwealth v. McComb, supra, this Court stated:

To determine the reasonableness of the use of a deadly force, the opportunity to retreat, the role of the accused in provoking or escalating the difficulty, the trier of fact is required, not only to evaluate the conduct of the appellant

[ 491 Pa. Page 515]

    during the final confrontation but also to view it in light of those circumstances that preceded and precipitated that final confrontation. [Citations omitted.]

In this case, viewing the entire encounter, particularly recognizing that it was the deceased who first resorted to a deadly force, it was clearly the province of the jury to determine the feasibility of an attempt by appellant to disengage at the point when he came into momentary possession of the revolver.

Finally, the trial court suggests that it would have been duplicitous for him to have charged both the defense of others and the defense of self-defense. Clearly this judgment was erroneous. As has been stated, while the defense of others was relevant in determining appellant's right to initially have become involved in the encounter, his right to use deadly force was dependent upon his right of self-defense. Failure to give the charge of self-defense in this case in effect deprived appellant of the only possibility of a finding of a justified killing.

Accordingly, the judgments of sentence are reversed and a new trial is awarded.*fn5

LARSEN, Justice, concurring.

I join in the majority opinion, but want to note that appellant was convicted of voluntary manslaughter and possessing instruments of a crime.

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