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COMMONWEALTH PENNSYLVANIA v. DAVID BAILEY (02/03/84)

filed: February 3, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID BAILEY, APPELLANT



No. 1077 Philadelphia, 1982, Appeal from the Judgment of Sentence of April 2, 1982 in the Court of Common Pleas of Lancaster County, Criminal Division, No. 994 of 1981

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Brosky, Montgomery and Cercone, JJ.

Author: Cercone

[ 324 Pa. Super. Page 237]

Appellant was convicted after a jury trial of simple assault. Post-trial motions were filed, argued and denied. Appellant was sentenced to one year of probation and fined $100.00 and directed to pay the costs of prosecution and make restitution. From the judgment of sentence appellant has filed this appeal raising two issues. Before addressing appellant's contentions a factual review of the case is necessary.

Paula Kiehl was in a barroom, waiting for her boyfriend, Glen Kuhns. According to the prosecution's witnesses, after Kuhns arrived appellant David Bailey and a friend of his, David Matos, approached Kiehl and Kuhns. Bailey and Matos inquired of the couple's relationship, and then Matos grabbed Kiehl's arm provoking Kuhns to strike Matos. Bailey interceded on behalf of Matos and other patrons broke up the brawl. The defense claimed that Matos never grabbed Kiehl, but instead appellant became violent when

[ 324 Pa. Super. Page 238]

Matos stated he thought Kiehl was good looking and that he did not care if Kuhns was her boyfriend.

Kiehl and Kuhns left the bar and according to their testimony, the following occurred. A short distance from the bar, and only five minutes later, they again encountered Matos and Bailey. Appellant pushed Kuhns up against the wall but relented from further aggression at Matos' insistence. Matos and Kuhns resolved their differences and apologized to each other and shook hands. Bailey then struck Kuhns, knocking him to the ground rendering him unconscious. Kuhns incurred a broken jaw and required six or eight stitches. His jaw was wired shut for six weeks.

The appellant's recollection of the events differed drastically. According to both Matos and Bailey, they, individually and inadvertently, came upon Kiehl and Kuhns the second time. Matos approached Kuhns to inquire why he, Kuhns, had struck Matos. Bailey arrived upon the scene and believed that Kuhns was going to again hit his friend Matos, and he decided to step into the discussion. At that point Kuhns pushed Bailey and attempted to hit him. In self-defense, Bailey struck back.

Defense counsel requested the court to instruct the jury concerning the defense of self-defense, as ...


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