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COMMONWEALTH PENNSYLVANIA v. HECTOR GONZALES (06/22/84)

submitted: June 22, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
HECTOR GONZALES, APPELLANT



COUNSEL

William Costopolous, Lemoyne, for appellant.

Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Del Sole, Popovich and Roberts, JJ.

Author: Del Sole

[ 334 Pa. Super. Page 605]

Appellant was convicted, after a jury trial, of Aggravated Assault, and Possession of a Controlled Substance with intent to deliver. His post-trial motions were denied, and Appellant was sentenced to consecutive sentences of 2 1/2 to 5 years for the possession charge, and 5 to 10 years for aggravated assault. Appellant then filed this appeal. He alleges as his sole issue, that the court committed reversible error when it refused to charge the jury on the defense of justification.

The relevant facts of the case are as follows: On January 12, 1983, four Harrisburg City Police officers went to Appellant's apartment for the purpose of executing a search warrant. Three officers, Goshert, Teel, and Vucenic, approached the front of the apartment. Only Vucenic was dressed in uniform. The other officer went to the rear of the residence. Goshert knocked on the door of the apartment and said he had "money for Joe". As the door began to open, Goshert shouted "Harrisburg Police, we have a search warrant", and pushed the door the rest of the way open. Goshert entered the apartment first, with Teel to his right and rear, and Vucenic to his left and rear. At that point, Goshert observed Appellant crouched approximately five feet away, holding a handgun in his outstretched hands. Upon seeing this, Goshert slid to the floor, and removed a revolver from his coat pocket. Teel, believing Goshert had been shot, began to shoot at Appellant. Goshert

[ 334 Pa. Super. Page 606]

    also fired at Appellant. Vucenic testified that Appellant "clicked" his pistol as if Appellant was attempting to fire the weapon, but it misfired. Vucenic then drew his revolver and fired from the hip. Appellant was hit by 14 bullets, but survived.

The issue on appeal is whether the court erred in refusing Appellant's request to instruct the jury on justification under ยง 505 of the Crimes Code, 18 Pa.Cons.Stat.Ann. (Purdon 1983). Section 505 is entitled, "Use of Force in Self Protection", and it provides:

(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 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.

Our case law makes it clear that the charge of self-defense must be given upon request if there is evidence presented, from any source, that the defendant acted in self-defense. Commonwealth v. Brown, 491 Pa. 507, 421 A.2d 660 (1980). In addition, the defendant is entitled to a charge that the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense. Commonwealth v. Rittle, 285 Pa. Super. 522, 428 A.2d 168 (1981).

In light of this authority, we must examine the record to see if there is evidence "from any source" the Appellant was acting in self-defense. Appellant, through an interpreter, testified that the officers never identified themselves as police, nor did he see any warrant. In response to a question regarding why he reached for the gun, Appellant answered: "When I opened, they were dressed in civilian clothes. The one man was on the floor with the gun. And so, since I had been robbed I took the gun." When asked what his thoughts were at that moment, Appellant responded: "That they ...


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