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COMMONWEALTH PENNSYLVANIA v. MATHENO FORD BEY (03/30/82)

submitted: March 30, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
MATHENO FORD BEY, APPELLANT



No. 1446 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division at No. 1314-80.

COUNSEL

Douglas M. Johnson, Public Defender, Norristown, for appellant.

Ronald Thomas Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Wieand, McEwen and Popovich, JJ. McEwen, J., concurs in the result. Wieand, J., files a dissenting opinion.

Author: Popovich

[ 306 Pa. Super. Page 290]

After a jury trial, appellant, Matheno Ali Ford-Bey, was found guilty of Criminal Attempt to Commit Murder (18 Pa.C.S.A. § 901), Recklessly Endangering Another Person (Id. at § 2705) and Possession of an Instrument of Crime (Id. at § 907). Post-trial motions were filed and denied. Thereafter, appellant was sentenced to serve 2 to 5 years for attempted murder and a concurrent 2 to 5 years for possession of an instrument of crime. The sentence for reckless endangerment was suspended. This appeal followed. We reverse in part and affirm in part.

The facts concerning the instant case, viewed in a light most favorable to the verdict-winner, consist of the following: On April 6, 1980, Thomas Jones was with his girlfriend at her sister's apartment, which was located in Pottstown, Pa. At approximately 2:30 p.m., the doorbell rang and Jones used the intercom system to ask who it was. When the caller identified himself as "Sam," Jones recognized that it was Sanford Harling, Jr., an acquaintance he had known for some nine, ten months prior to this date. When Jones informed his girlfriend's sister who it was, she told him to let the person in. Jones complied and depressed a button on the intercom that released the lock on the entrance to the apartment building. Jones peered through the "peep-hole" and saw no one other than Harling standing outside the door. However, when the apartment door was opened, he observed Harling in the company of the appellant and Eli

[ 306 Pa. Super. Page 291]

Ford-Bey, appellant's brother, whom he had known for about a year and a half. Eli directed Jones to step outside. When Jones asked why, he received no response. Eli merely stated, "Come outside or we are going to come inside and get you." At this point, Jones' girlfriend arrived at the door, pulled him (Jones) back into the apartment and locked the entrance. Eli warned Jones that if he stayed in the room, the door would be kicked down.

Jones, in an attempt to protect himself, retreated to the kitchen and retrieved a carving knife, which was about a foot in length -- handle and blade. Jones placed the knife in his slacks, but the handle was clearly visible. Thereafter, Jones stepped outside the door and Eli grabbed him by the collar to pull him down the stairs. Jones reacted by "withdr[awing] the carving knife from [his] side." Eli, in turn, also pulled a knife. Harling, seeing the weapons, stated "there wasn't going to be any knives used, to give him the knives." Eli complied, but Jones refused. The four men then made there way outside the building. Once in the open, Jones observed Eli pass a gun to the appellant. Then, appellant, at a distance of about five, six feet, aimed the weapon at the victim and pulled the trigger. However, "it didn't go off" because the safety was on. After releasing the safety, appellant pulled the trigger again, and this time it fired, striking the victim in the right side of the chest. The victim, although wounded, made his way back to the apartment and had the police summoned. Thereafter, the appellant was arrested.

On appeal, appellant contends that the trial court erred in: 1) not charging the jury on the elements of the crime of murder and the common law definition of murder; 2) insufficiently instructing the jury as to each and every element of the crimes; 3) refusing to give a self-defense charge; 4) sustaining the convictions for criminal attempt and possession of an instrument of crime; and 5) upholding appellant's convictions for attempted murder and recklessly endangering another person.

[ 306 Pa. Super. Page 292]

We will consider appellant's first, second and third contentions together, inasmuch as they all deal in some respect with a claimed deficiency in the lower court's charge to the jury.

We note, initially, that after the lower court granted the Commonwealth's request for a correction and clarification on a certain aspect of the charge, the following exchange occurred:

"Satisfactory, Mr. Iacovitti[ -- the Commonwealth's attorney]?

MR. IACOVITTI: Yes, sir. Thank you, ...


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