No. 980 Philadelphia 1983, Appeal from the Judgment of Sentence, March 14, 1983 in the Court of Common Pleas, Montour County, Criminal Division, No. 92-1981
James F. Geddes, Jr., Wilkes-Barre, for appellant.
George O. Wagner, District Attorney, Danville, for Commonwealth, appellee.
McEwen, Olszewski and Hoffman, JJ.
[ 335 Pa. Super. Page 307]
This appeal is undertaken from the judgment of sentence imposed after appellant was convicted by a jury and sentenced to serve a term of not less than four months nor more than two years for recklessly endangering another person and a similar and concurrent term for simple assault.*fn1 We reverse and remand for a new trial.
Appellant was charged with recklessly endangering another and simple assault after he was arrested for pointing a shotgun at his neighbor. This incident followed a heated
[ 335 Pa. Super. Page 308]
exchange over a boundary dispute concerning their adjacent properties.
During the presentation of his case, appellant called several character witnesses to attest to his good reputation in the community. After both sides rested, the court instructed the jury on the use of that character evidence:
It's important that you understand how this testimony by the character witnesses should be treated in this case. Of course, from time immemorial, a good reputation has been regarded as an asset of a person and the law permits that person to avail himself of that reputation evidence in support of his innocence once he has been accused in criminal court. Reputation evidence is substantive evidence to be weighed and considered along with all the other evidence and testimony in the case. But if the Commonwealth has shown beyond a reasonable doubt that the defendant is guilty, even though he may have had a good reputation, he is not free to go acquitted simply because of that reputation.
You must decide for yourselves whether to accept the testimony of good reputation and whether it points to innocence in this case and whether it will raise a doubt in your mind that such a man with such a reputation would be likely to commit a crime of the nature charged herein. A distinct issue is not created by this type of testimony nor is it brought into the case as mere make-way evidence. It is to be taken into account with all the other evidence in the case and if the whole of the evidence, in total, is sufficient in your judgment to indicate that the defendant is not guilty or to create a reasonable doubt of his guilt in your minds, then the defendant is entitled to be found not guilty.
Charge of the lower court at 14-15. Counsel for appellant did not object to this charge and appellant ...