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filed: October 14, 1986.


Appeal from Judgment of Sentence entered in the Court of Common Pleas, Philadelphia County, Criminal Division at Nos. 83-02-2817/2819.


Donald Bronstein, Assistant Public Defender, Philadelphia, for appellant.

Elizabeth J. Chambers, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Wickersham, Brosky, McEwen, Olszewski, Montemuro, Beck, Kelly and Johnson, JJ.

Author: Kelly

[ 357 Pa. Super. Page 512]

In the instant case we are called upon to determine whether the law of justification regarding the use of deadly force in self-defense was changed by the enactment of 18 Pa.C.S.A. § 505(b)(2)(i) as part of the Consolidated Pennsylvania Statutes Act of 1972 and, if so, whether the trial judge committed an error of law by instructing the jury that, in order to justify the use of deadly force, the evidence must establish that the actor was free from fault in provoking or continuing the difficulty which resulted in the injury.

The appellant contends that, by borrowing language from § 3.04 of the Model Penal Code, the legislature altered and restricted the law of self-defense. The appellant argues the restriction limits the defense of justification to only those cases in which the actor " with the intent of causing death or serious bodily injury, provoked the use of force against himself in the same encounter . . . ." See 18 Pa.C.S.A. § 505(b)(2)(i). The appellant argues that in light of this change in the law of self-defense, the jury charge given by the trial court was incorrect, incomplete and unduly prejudicial, to the detriment of the appellant. The appellant, therefore, seeks a new trial.

The Commonwealth responds, alternatively, that: the appellant's claim was waived by the appellant's failure to submit written points for charge pursuant to Pa.R.Crim.P. 1119(a), and by failing to raise at trial the theory argued on appeal pursuant to 1119(b); the appellant's argument is without merit as the enactment merely codified the prior (common) law; and even if the instructions were in error,

[ 357 Pa. Super. Page 513]

    the error was harmless beyond a reasonable doubt as the appellant's claims were insufficient as a matter of law to require any instruction on the law of self-defense.

Appellant counters that even if his claim was waived, it was waived due to ineffectiveness of counsel, and should be reviewed in that context. Upon review, we find that the issue was not properly preserved; however, counsel was not ineffective for failing to preserve the issue as the enactment of 18 Pa.C.S.A. § 505(b)(2)(i) did not change the prior law so as to render the trial court's jury instruction incorrect or incomplete. Accordingly, we affirm the judgment of sentence.

The facts relevant to our deliberations and supported by the record were summarized by the trial court as follows:

During the afternoon of November 13, 1982 the complainant, Andrew Smith, came out of the Pep Boys Store at Broad and Buttonwood Streets, Philadelphia, Pennsylvania, and got into his car which was parked on Buttonwood Street. The defendant's car was parked directly in front of Mr. Smith's car, and the defendant was standing by the rear of his car putting a gas cap on his car. As Mr. Smith was pulling his car out of its parking place, he heard the defendant yelling that someone should get Mr. Smith's license plate number and call the police. Mr. Smith got out of his car and the defendant walked over to him and accused Mr. Smith of trying to run him over. Mr. Smith denied striking the defendant with his car. The defendant put his hand in his shirt at about waist level and told Mr. Smith not to move or he would "blow his brains out." The defendant swung at Mr. Smith and Mr. Smith returned the blow. Thereafter, the defendant moved his car, blocking Buttonwood Street which is a one way street.

The complainant got back into his car and locked the doors. The defendant then broke the complainant's car windows with a metal bar. While the defendant was banging on the trunk of the complainant's car with the metal bar, the complainant started to get out of his car and call for help.

[ 357 Pa. Super. Page 514]

At that point, the defendant struck the complainant from behind with the metal bar, twice on the head and once on the shoulder. When the police arrived, the complainant was taken to Hahnemann Hospital.

As a result of the blows to his head, the complainant's skull was fractured and he suffered paralysis of the left leg. While hospitalized the complainant had surgery and a plate was inserted in his skull. At the time of trial, the complainant had recurring head pain and impaired movement of his left leg.

Trial Court Opinion at 2-3.

The appellant, Rayfield Alvin, was arrested on November 13, 1982, and charged with Aggravated Assault, Simple Assault, Recklessly Endangering Another Person, and Possessing Instruments of Crime. On February 28, 1982, a preliminary hearing was conducted before the Honorable Francis P. Cosgrove. The appellant was ordered to be held for trial on all charges.

On April 30, 1984, the appellant was brought to jury trial before the Honorable Levy Anderson. Following a five day trial, the jury returned verdicts of guilty on the charges of Aggravated Assault and Recklessly Endangering Another Person. A verdict of not guilty was returned on the Possessing Instruments of Crime charge. The Simple Assault charge was nol prossed.

Post-verdict motions were filed, argued, and denied. On October 19, 1984, the appellant was sentenced to a term of imprisonment of one and one-half to four years on the Aggravated Assault charge. Sentence was suspended on the Recklessly Endangering Another Person charge by reason of its merger into the Aggravated Assault charge. Appellant's motion to reconsider sentence was denied. Notice of appeal was timely filed.


Before proceeding to a review of the merits of the appellant's contention, we must ...

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