No. 2656 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Luzerne County, No. 1592 of 1981.
Gifford Cappellini, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Brosky, Wieand and McEwen, JJ.
[ 334 Pa. Super. Page 147]
Daryll Smith was tried by jury and convicted of aggravated assault*fn1 in connection with the beating of a patron of a nightclub where Smith worked as a "bouncer." Following denial of post-verdict motions, Smith was sentenced to imprisonment for not less than six months nor more than five years, less one day. On direct appeal from the judgment of sentence, Smith contends that the trial court erred when it: (1) refused to permit evidence, by direct or cross-examination, of the victim's involvement in an altercation at another tavern earlier the same night; (2) instructed the jury on accomplice liability; and (3) imposed a sentence of total confinement. We affirm.*fn2
The Commonwealth's evidence showed that Jeffrey Bayer, a serviceman home on leave, had entered the "Station," a Wilkes-Barre nightclub, at or about midnight on June 18, 1981. His efforts to find a dance partner were unsuccessful. One or more intended dance partners poured drinks on his head. Daryll Smith and George Farro were employed
[ 334 Pa. Super. Page 148]
by the "Station" as bouncers. They requested Bayer to leave; when he refused, they forcibly ejected him. Outside, according to the Commonwealth's evidence, Smith and Farro punched and kicked Bayer until he fell to the ground in a fetal position. When Bayer asked to re-enter the bar to retrieve the shirt which he had removed after drinks had been poured on him, Smith again struck him. As Bayer lay prone on the ground, Smith struck him once again; and Farro, enraged because his shirt had been torn during the preceding altercation, dropped a cinder block on Bayer's head. As a result of the beating, Bayer suffered a fractured skull and related head injuries which required two surgical operations, lengthy hospitalization and the placement of a plastic plate in his skull. This treatment, it was testified, was essential to prevent Bayer's death from injuries received at the hands of Smith and Farro.*fn3
Smith's defense at trial was that Bayer had been the aggressor and that he, Smith, had used no more than reasonable force to eject Bayer from the nightclub. This escalated outside, according to the defense, because Bayer continued to attack Smith and Farro. Smith contended additionally that Farro, not Smith, had inflicted the beating upon Bayer. Smith denied that anyone had struck Bayer's head with a cinder block.
Smith attempted to show, by cross-examination of Bayer and also by direct evidence, that before Bayer entered the "Station," he had instigated and had been involved in an altercation at another bar. The purpose of this evidence, his attorney said, was to show Bayer's predilection for violence. The trial court held that the evidence was irrelevant and refused to allow it.
The pertinent law was summarized by the Supreme Court in Commonwealth v. Smith, 490 Pa. 380, 416 ...