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COMMONWEALTH PENNSYLVANIA v. JAMES NEELY (03/28/88)

filed: March 28, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES NEELY, APPELLANT



Appeal from the Judgment of Sentence entered October 8, 1985, Court of Common Pleas, Philadelphia County, Criminal Division at No. 2709/10 April 1984.

COUNSEL

Jeffrey P. Shender, Assistant Public Defender, Philadelphia, for appellant.

Laurie Magid, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Cavanaugh, Brosky, Del Sole, Montemuro, Tamilia, Kelly, Popovich and Johnson, JJ.

Author: Johnson

[ 372 Pa. Super. Page 521]

Appellant James Neely was convicted by jury of recklessly endangering another person and of possessing an instrument of crime. He appeals from the judgment of sentence. Neely asserts that the trial court erred by failing to include

[ 372 Pa. Super. Page 522]

    in its reputation evidence jury charge the words "character testimony in and of itself is such as to create a reasonable doubt." Prior Superior Court panels have found reversible error where the trial court failed to charge that reputation evidence may in itself raise a reasonable doubt about the defendant's guilt. Because these cases appear to misinterpret Pennsylvania Supreme Court decisions, we have granted en banc review to resolve the apparent conflict.

On the night of February 15, 1984 Neely encountered complainant Donald Williams, an off-duty deputy sheriff, who was walking his dog without a leash. Neely pulled out a knife and threatened to use it on the dog. When Williams produced his badge and drew a gun, Neely began to slash at Williams' face with the knife and Williams fired a warning shot. Neighbors summoned the police. Neely attempted to flee over a fence. He fell off the fence towards Williams with his knife still drawn, causing Williams to fire his gun and hit Neely in the leg. Neely continued to run until police told him repeatedly to halt. A knife was recovered in the grass nearby.

Neely was charged by information with recklessly endangering another person, possessing an instrument of crime and aggravated assault. At trial before the Honorable Lynne M. Abraham, Neely produced two character witnesses who testified to his good reputation as a peaceful and law-abiding person. Neely himself also gave lengthy testimony, claiming that he drew the knife to protect himself from a possible attack from the unleashed dog. The trial court's charge to the jury included the following instructions on reputation evidence:

Evidence of good character is very important testimony, because the law says that when a person has a prior good reputation in the community, that person is not likely to commit a crime that's against that person's nature. Evidence of good character is material essential testimony in determining the guilt or innocence of the defendant. This kind of testimony as to the defendant's good character is not to be made light of. It's not a mere make-weight

[ 372 Pa. Super. Page 523]

    thrown in to fill out the case or fill in a gap. It's affirmative, substantive testimony to be weighed and considered by the jury in connection with all the other evidence in the case as bearing upon the question of whether or not the Commonwealth has or has not established the guilt of the defendant as he stands charged beyond a reasonable doubt.

N.T., 7/25/85 at 598. This elicited an objection from Neely's counsel who argued that Neely was entitled to an instruction that "character testimony in and of itself is such [as] to create a reasonable doubt." N.T., supra, at 606. The trial court declined to alter the instruction.

Following the trial of July 23-25, 1985, Neely was convicted of recklessly endangering another person and of possessing an instrument of crime. His post-verdict motions raising the denial of the proposed jury instruction were denied. On October 8, 1985 Neely was sentenced to three months to twenty-three months and twenty-nine days' incarceration and to a concurrent three-year term of probation. Neely timely appealed to this Court.

We will begin our inquiry with a discussion of the standard for an adequate jury charge. This court must review and consider the jury charge as a whole. Error cannot be predicated on isolated excerpts. It is the general effect of the charge that controls. Commonwealth v. Alvin, 357 Pa. Super. 509, 516 A.2d 376 (1986); Commonwealth v. Grove, 363 Pa. Super. 328, 526 A.2d 369 (1987): Wording the charge is in the court's discretion:

[T]he trial court is not required to accept the language of the point submitted by counsel but rather is free to select its own form of expression. The only issue is whether the area is adequately, accurately and clearly presented to the jury for their consideration.

Commonwealth v. McComb, 462 Pa. 504, 509, 341 A.2d 496, 498 (1975). See Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986). The trial court has broad discretion in wording its charge and in considering requested points for charge, "particularly where that form does not reflect a

[ 372 Pa. Super. Page 524]

    correct application of the law." Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983), cert. den. 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986). These instructions will not be overturned "when the charge meets the standards contained in appellate court opinions." Commonwealth v. Alvin, 357 Pa. Super. at 519, 516 A.2d at 381 (1986).

Thus a jury instruction on reputation evidence must accurately state the substantive law on the role of reputation evidence at trial. While evidence of bad character is inadmissible against a defendant in a criminal case:

It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation in any respect which has "proper relation to the subject matter" of the charge at issue. Such evidence has been allowed on a theory that general reputation reflects the character of the individual and a defendant in a criminal case is permitted to prove his good character in order to negate his participation in the offense charged.

Commonwealth v. Luther, 317 Pa. Super. 41, 49, 463 A.2d 1073, 1077 (1983) citing Commonwealth v. Castellana, 277 Pa. 117, 122, 121 A. 50, 51 (1923). The defense may introduce witnesses whose testimony attempts to prove that the defendant possesses character traits at odds with the criminal behavior alleged. In the case before us, testimony on Neely's reputation for peaceableness was introduced to rebut his alleged reckless endangerment of another person. See Henry on Pennsylvania Evidence ยง 159.

In this way the law allows a criminal defendant the benefit of his good reputation. "Of what avail is a good character, which a man may have been a lifetime in acquiring, if it is to benefit him nothing in his hour of peril?" Commonwealth v. Cleary, 135 Pa. 64, 84, 19 A. 1017, 1018 (1890). However, what one individual reports about what others in the community say about the defendant is obviously hearsay. ...


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