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filed: December 10, 1982.


No. 1462 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Cumberland County, at No. 298 Criminal 1980.


Taylor P. Andrews, Public Defender, Carlisle, for appellant.

J. Michael Eakin, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Cercone

[ 307 Pa. Super. Page 491]

This is a direct appeal from judgment of sentence. We now reverse and remand for new trial.

In the early morning hours of April 12, 1980 appellant Tran drove from his home in New Cumberland to the home of Cheng Chang in Lemoyne, Cumberland County. He was let into the house by Chang and the two had words about a woman whom Chang was then dating and whom Tran had once dated for nearly a year. The dispute moved from the first floor of Chang's house to his second floor bedroom. The argument grew heated. Aroused by the noise, Chang's sister and mother entered the room and turned on the light. They saw appellant stab Chang more than once. The sister ran to the telephone and called the police. Chang asked appellant for the knife and appellant handed it to him. He then fled the house. The police later found him sleeping in his car and arrested him for the assault on Chang. Twenty-three days later Chang died from complications arising from

[ 307 Pa. Super. Page 492]

    the multiple stab wounds and Tran was rearrested and charged with murder. The burglary and assault charges were dropped.

At trial appellant testified that on the evening just prior to the stabbing he consumed five or six beers, two "screwdrivers" (vodka and orange juice), and then smoked hashish. He then telephoned Eileen Hall and asked if he could see her the following day. She denied him the interview. Ms. Hall testified that he sounded excited and that his voice was unusually high. She characterized the call as "silly." Following this conversation, which was made from appellant's home, appellant took a knife and drove from New Cumberland to Lemoyne. Tran claimed at trial that he took the knife because he feared a confrontation with Chang about Ms. Hall. The confrontation did in fact occur, although the only witnesses to its inception were Tran and Chang. Tran claimed that he acted in self-defense when he first stabbed Chang. He testified that the two quarrelled over a picture of Ms. Hall and that Chang struck him with a flashlight. He testified that he had no intention of killing Chang. The police officers testified that when they arrested Tran they detected no signs of intoxication. They did not smell alcohol on his breath nor did they detect that he had trouble standing or walking even after his hands were secured behind his back.

In addition to asserting both self-defense and intoxication, appellant offered evidence of his good character by way of testimony concerning his reputation for peacefulness. He submitted a point for charge to the jury on the question of reputation testimony. The court agreed to read the submitted charge to the jury but later neglected to do so. Appellant's counsel failed to object to the court's omission and the case was sent out with the jury. They returned with a verdict of guilty of murder of the first degree. Appellant, represented by the same counsel as at trial, then filed a motion in arrest of judgment and a motion for new trial. The motion for new trial raised, inter alia, counsel's ineffectiveness for his failure to object to the court's omission

[ 307 Pa. Super. Page 493]

    of the jury instruction on reputation evidence. The court denied both motions and subsequently sentenced appellant to life imprisonment. Still represented by trial counsel, appellant brought this timely appeal.

Appellant first assigns as error the lower court's refusal to grant the motion in arrest of judgment thereby raising the question of the evidence's sufficiency to sustain the verdict of guilty of murder in the first degree. In deciding sufficiency claims on appeal, we read the evidence in the light most favorable to the Commonwealth as verdict winner, giving it also the benefit of all inferences which can be reasonably drawn from the evidence. We then weigh the evidence and inferences against the elements of the crime to determine whether the Commonwealth has met its burden of proving each element thereof beyond a reasonable doubt. See Commonwealth v. Fisher, 491 Pa. 231, 420 A.2d 427 (1980). When self-defense is raised as a defense to a homicide charge the Commonwealth bears the additional burden of proving beyond a reasonable doubt either:

(1) that the defendant did not reasonably believe it was immediately necessary to kill in order to protect himself against death or serious bodily harm, or that the defendant used more force than was necessary or reasonably appeared to him to be necessary to save ...

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