Appeal from the Judgment of Sentence of the Court of Common Pleas, Erie County, Criminal Division, at No. 1261 of 1982.
Carmela R. M. Presogna, Assistant Public Defender, Erie, for appellant.
Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
Spaeth, President Judge, and Brosky and Olszewski, JJ.
[ 344 Pa. Super. Page 483]
This appeal is from the judgment of sentence imposed after a jury found appellant guilty of simple assault. Appellant contends that: (1) the court below erred in refusing his requested jury instruction; and (2) the lower court did not adequately set forth, on the record, its reasons for the sentence. We agree with appellant's first contention and, accordingly, vacate the judgment of sentence and remand for a new trial.
On May 29, 1982, appellant was involved in a car accident. Both drivers left their vehicles. At trial, conflicting testimony was presented as to the events occurring after the drivers emerged from the cars.
The victim, Douglas Snyder, testified that he got out on the passenger's side of his car and saw appellant coming out of his car yelling that Snyder had hit his car. He also stated that appellant had then punched him in the head and kicked him after he had fallen to the ground. He further testified that he had remained calm and had not hit or threatened appellant by word or gesture.
Appellant testified that Snyder had come out of his vehicle with his hands up, ready to fight. He stated that a fight then ensued and that he left the scene after apparently winning the fight.
A disinterested bystander, Donald Glover, testified that he had observed the accident and that he had seen Snyder come out of his car and charge at appellant. He also stated that a fight had then ensued, but that he had not seen who had thrown the first punch.
The jury found appellant guilty of simple assault on November 16, 1982. Post verdict motions were timely filed and denied and, on December 20, 1982, appellant was sentenced
[ 344 Pa. Super. Page 484]
to one to twenty-three months imprisonment. This ...