No. 860 April Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. CC 7806597.
George G. Mahfood, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, submitted a brief on behalf of Commonwealth, appellee.
Price, Cavanaugh and Hoffman, JJ.
[ 285 Pa. Super. Page 523]
The issue on appeal is whether the trial court was in error in refusing to instruct the jury on the defense of self-defense. We find that under the evidence the appellant was entitled to have this issue presented to the jury and, therefore, we reverse the judgment of sentence and grant a new trial.
It is clear that if there is evidence from any source that a defendant acted in self-defense, that the defendant is not only entitled to have the issue presented to the jury but in addition is entitled to a charge that the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense. See Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645; Commonwealth v. Flagg, 266 Pa. Super. 508, 405 A.2d 934 (1979); Commonwealth v. Hetherington, 477 Pa. 562, 385 A.2d 338 (1978); Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977); Commonwealth v. Webster, 490 Pa. 322, 416 A.2d 491 (1980); Commonwealth v. Terrell, 276 Pa. Super. 136, 419 A.2d 133 (1980).
Therefore, we must examine the evidence to see if there is evidence "from any source" that appellant Wilmer was acting in self-defense. The victim in this incident, Pete Palsitevas, testified that he was in a parking lot in his van and saw the appellant driving his own vehicle. The appellant stopped his vehicle, got out, approached a "bunch of people" and hit a girl with his fist and returned to his car (both appellant and the girl denied that she was struck in their testimony). Thereafter, Palsitevas got out of his van and stopped the appellant's vehicle. He then testified:
Q Now, Pete, you said you went over to his car?
[ 285 Pa. Super. Page 524]
Q Was his window rolled up?