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COMMONWEALTH PENNSYLVANIA v. FLOYD MCCLOUD (01/21/83)

filed: January 21, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
FLOYD MCCLOUD, APPELLANT



NO. 1391 PHILADELPHIA, 1981, Appeal from the judgment of sentence of May 06, 1981, in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at No C.P. 815-October Term, 1980. 818

COUNSEL

Arlan Ryna Mintz, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Wieand and Beck, JJ.

Author: Beck

[ 309 Pa. Super. Page 317]

Appellant, Floyd McCloud, was convicted by a jury of murder in the first degree and possessing an instrument of crime. Timely post-verdict motions were filed and denied, and appellant was sentenced to a term of life imprisonment on the former charge and a consecutive term of from two and one-half to five years on the latter.

Appellant alleges initially that trial counsel was ineffective for failing to request a jury charge stating the specific elements of self-defense and then failing to object when the court failed to instruct on self-defense. He admits

[ 309 Pa. Super. Page 318]

    that his trial counsel requested a "general" self-defense charge and that one was given to the jury, but he states that the trial judge "never specifically mentioned the elements of self-defense." Appellant's Brief at 8.

We find no support in the record for appellant's claim that the specific elements of self-defense were not included in the jury charge. The Crimes Code delineates the elements of self-defense at 18 Pa.C.S.A. ยง 505:

(a) Use of force justifiable for protection of the person. -- The use of force upon or toward another person is justifiable when the actor believes*fn1 that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

Section 505(b)(2) sharply limits this defense when deadly force is used:

The use of deadly force*fn2 is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or ...


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