No. 27 E.D.Appeal Docket, 1983, Appeal From The Order of The Superior Court of Pennsylvania at No. 1839 Phila. 1981, Denying Appellant's Appeal From The Judgment in The Court of Common Pleas of Columbia County at No. CR-254-1980, Pa. Super , 452 A.2d 1079 (1982)
John P. Campana, Williamsport, for appellant.
Gailey C. Keller, Dist. Atty., for appellee.
The appellant, John A. Pollino, Jr. was tried before a jury in the Court of Common Pleas of Columbia County on charges of aggravated assault and simple assault. At trial he introduced evidence of self defense and asked the trial judge to charge the jury that, under the circumstances, he was not required to retreat. The court refused to give the requested charge and the jury found him guilty of simple assault. Following the denial of his post trial motion for a new trial, appellant was sentenced to serve a term of imprisonment of 2 to 23 months, to pay a fine of $500.00 and to make restitution. Appellant's petition for reconsideration of the sentence was denied. Appellant appealed
from the judgment of sentence and in a memorandum opinion the Superior Court affirmed.*fn1 We granted allocatur.
The appellant argues that the lower court erred in refusing to charge the jury that, under the facts of this case, he was under no duty to retreat.
The charges in this case arose out of an altercation occurring on August 9, 1980 between the appellant and the victim, Leonard Yorty. There were no eyewitnesses to the incident. All of the testimony as to how the altercation began, unfolded and ended, came from the appellant and the victim.
The victim, Yorty, testified that in the early morning on August 9, 1980, he drove to the home of Ms. Debbie Knapp in Creasy's Trailer Court, Scott Township, Columbia County. He arrived at approximately 2:00 P.M., parked his car, went to Ms. Knapp's trailer and knocked on the door. Receiving no answer, Yorty concluded that Ms. Knapp was not at home and he decided to wait in his car for her to return. While waiting, he fell asleep. The next thing he remembers is being hit over the head with a club and then being pulled out of his car by the appellant. He testified that after he was dragged from his car, he was repeatedly struck with the club until he fell to the ground. Yorty admitted that the club used to beat him was his own. When he fell asleep, it was laying on the floor in the rear of his car directly behind the driver's seat.
The appellant's evidence was that between 2:30 A.M. and daybreak on August 9, 1980, he drove Ms. Debbie Knapp home. Upon arriving, appellant noticed two cars parked near her trailer, one of which belonged to Yorty. After he parked his vehicle, Ms. Knapp got out and started to walk to her trailer. As she walked by the Yorty's parked car, she stopped briefly and said something to the victim who was seated ...