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COMMONWEALTH PENNSYLVANIA v. MICHAEL CANNON (08/18/89)

filed: August 18, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL CANNON, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GREGORY REAP, APPELLANT



Appeal from the Judgment of Sentence August 4, 1988 in the Court of Common Pleas of Luzerne County Criminal Division, No. 1006-C-1984. Appeal from the Judgment of Sentence August 4, 1988 in the Court of Common Pleas of Luzerne County Criminal Division, Nos. 675 of 1984 and 676 of 1984.

COUNSEL

Cynthia A. Smith, Wilkes-Barre, for Cannon, appellant (at 2682) and for Reap, appellant (at 2683).

Joseph Giebus, Wilkes-Barre, Asst. Dist. Atty., for Com., appellee. (Submitted)

Cavanaugh, Beck and Cercone, JJ.

Author: Cercone

[ 387 Pa. Super. Page 17]

These are appeals from the judgments of sentence of the Court of Common Pleas of Luzerne County. We affirm in part, reverse in part and remand for resentencing in accordance with this opinion.

Appellant, Michael Cannon was charged at No. 1006-C-1984 with one count of simple assault*fn1 on Edward Miller. Appellant, Gregory Reap, was charged at No. 675 of 1984 with two counts also concerning Edward Miller. The first count was aggravated assault*fn2 and the second count was simple assault.*fn3 Appellant Reap was further charged at 676 of 1984 with one count of simple assault*fn4 as to Charles Infantino. After a jury trial, on March 22, 1985 both appellants were convicted of all counts. The Honorable Arthur D. Dalessandro presided over the trial and on March 19, 1986, heard oral argument on both appellants' motions for new trial and/or in arrest of judgment. On October 3, 1986, before ruling on appellants' motions, the trial judge was relieved of performing any judicial, legal or fact-finding decisions in the Luzerne Court of Common Pleas, both Criminal and Civil Divisions.

Thereafter, on March 24, 1987, the Honorable Gifford S. Cappellini (hereinafter referred to as the "reviewing judge") denied appellants' motions for new trial and/or in arrest of judgment. Appellants filed petitions to vacate the order of court. On August 13, 1987, Judge Cappellini dismissed appellants' petitions. A restitution hearing was commenced on June 10, 1988 and reconvened on July 22, 1988.

On August 4, 1988, the reviewing judge found from the record that the damages to the victim, Edward Miller, for medical and hospital treatment including pain and suffering which were attributable to appellant Cannon amounted to $6000. Appellant Cannon was placed on probation for two

[ 387 Pa. Super. Page 18]

    years and ordered to pay the cost of prosecution and to make restitution in the amount of $250 a month.

The reviewing judge further found from the record that the damages attributable to appellant Reap for Mr. Miller's medical and hospital treatment, including pain and suffering, amounted to $33,000 and that the damages, medical and hospital treatment including pain and suffering sustained by Charles Infantino attributable to appellant amounted to $11,000. On the first count of No. 675 of 1984, the aggravated assault count regarding Mr. Miller, appellant Reap was placed on probation for ten years and ordered to pay the cost of prosecution and to make restitution in the amount of $275 a month to Mr. Miller. On the second count of No. 675 of 1984, the simple assault count relating to Mr. Miller, appellant Reap was given the same sentence as the first count, except he was placed on probation for two years to be served concurrently with the sentence for the first count. On the simple assault count pertaining to Mr. Infantino at No. 676 of 1984, appellant Reap was sentenced to two years probation to be served concurrently with the sentence at No. 675 of 1984 and he was further ordered to pay the cost of prosecution and make restitution in the amount of $91.67 a month to Mr. Infantino. Appellants filed timely appeals from the judgments of sentence.

The facts, as determined by the lower court, are as follows: On August 25, 1983, Charles Infantino's wife rejected the advances made by Paul Lumia in the lobby of the Woodlands, a drinking and dancing establishment located in Wilkes-Barre. A verbal exchange ensued between Mr. Infantino and Mr. Lumia. Mr. Lumia was then instructed by a manager to leave the Woodlands. Thereafter, Mr. and Mrs. Infantino left the Woodlands accompanied by Mr. and Mrs. Miller and proceeded in a northerly direction on Route 315 in Wilkes-Barre. The appellants, along with Mr. Lumia, were passengers in a vehicle that followed the victims' vehicle. At a traffic light, the appellants pulled alongside their victims and yelled obscenities at them. The appellants then followed the victims' vehicle, bumped it, threw beer

[ 387 Pa. Super. Page 19]

    bottles at it, and ran it off the road into a construction ditch. Thereafter, the appellants and their companions assaulted Mr. Infantino and Mr. Miller, causing serious bodily injuries to them.

On appeal, appellants raise seven issues for our review: (1) that the trial court erred in refusing their requested points for charge on (a) the justification defense; and (b) mutual combat; (2) that the trial court erred in granting the Commonwealth's motion in limine with regard to one of the victim's wire fraud conviction; (3) that the trial court erred in refusing to permit appellants to engage in more extensive cross-examination of the victim after the Commonwealth, on redirect examination, elicited the victim's wire fraud guilty plea; (4) that the reviewing judge erred in not vacating the March 24, 1987 order of court denying appellants' motions for new trial and/or in arrest of judgment; (5) that appellants' sentences were improperly imposed by a judge who did not preside over the trial; (6) that the reviewing judge improperly allowed exhibits into evidence at both the restitution and sentencing hearings over appellants' objections; and (7) that the reviewing judge abused his discretion in sentencing appellants. We will address each of these issues seriatim.

Appellants' first contention is that the lower court erred in refusing to charge the jury as to the defense of justification or on the defense of mutual combat. We disagree. Mutual combat infers that both parties "agreed" to fight and that there was no aggressor. See Commonwealth v. Coleman, 344 Pa. Super. 481, 496 A.2d 1207 (1985) (wherein evidence that the victim got out of his car, charged the defendant and a fight ensued, but there was no clear evidence of who threw the first punch supported inference that fight was entered into by mutual consent.)

In order to be entitled to an instruction on justification as a defense to a crime charged, our supreme court in Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985) held that the actor must first offer evidence that will show: (1) that he was faced with a clear and imminent

[ 387 Pa. Super. Page 20]

    harm, not one which is debatable or speculative; (2) that he could reasonably expect that his actions would be effective in avoiding this greater harm; (3) that there is no legal alternative which will be effective in abating the harm; and (4) that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Capitolo, 508 Pa. at 378, 498 A.2d at 809. The trial court may disallow the justification defense if a defendant fails to proffer sufficient evidence to establish even one of the above factors. Capitolo, 508 Pa. at 379, 498 A.2d at 809.

Utilizing the above analysis, we agree with the trial court that, as a matter of law, appellants were not entitled to a jury charge of justification or mutual combat. First, it is entirely clear from the record that the appellants and their companions were not free from fault in provoking or continuing the difficulty resulting in the injuries to the victims. By appellants' own testimony, five confrontations took place on the night in question. The initial conflict occurred when Mr. Lumia was in the bar and was asked to leave. The second incident occurred on the road when appellants and their friends pulled up alongside the victims' car, threw beer cans at them, shouted obscenities and goaded them to follow appellants and their companions as they turned right off of the main highway. When the victims did not follow, appellants and their friends turned their vehicle around and began to chase the victims, flash their high beams at the victims and bump the victims' car. ...


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