Appeal from the Order Entered June 1, 2012 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000108-2011
BEFORE BOWES, OLSON and WECHT, JJ.
Appellant, the Commonwealth of Pennsylvania (Commonwealth), appeals from an order entered on June 1, 2012 in which the trial court vacated the convictions of Appellee, Seth Matthew Hornberger (Hornberger), on charges of third degree murder,  voluntary manslaughter (two counts),  and possession of an instrument of crime and awarded Hornberger a new trial. On appeal, the Commonwealth asserts that the trial court erred in reassessing its instructions to the jury because the court's original charge accurately stated the law with respect to Hornberger's justification defense and the duty to retreat under the circumstances of this case. We disagree and, therefore, affirm.
The trial court summarized the evidence introduced at trial as follows:
[Hornberger] and Michael Lepley were in the City of Sunbury [Northumberland County, Pennsylvania] in the early morning hours of March 13, 2011. They were able to obtain a ride into Snyder County near the residence of [Thomas] Bingaman. Lepley had previously stayed overnight at [Bingaman's Snyder County apartment]. Although Lepley lived with his grandparents, he testified that he was not permitted to go to his grandparents' residence [during the early morning hours of March 13th] because he was accompanied by [Hornberger]. Lepley testified that he had no place to go.
Lepley further testified that he attempted to obtain permission to stay at the apartment from Bingaman. His attempt was through text messages. According to Bingaman, he [(Bingaman)] did not give Lepley permission to be [at] the premises at that time.
Leply and Hornberger went to [Bingaman's] residence in the early morning hours of March 13, 2011 and entered the residence. While in the residence, Lepley and [Hornberger] were utilizing Bingaman's computer. Bingaman [and a friend] returned [to Bingaman's] home at some time in the early morning hours and discovered [Hornberger] and Lepley in [the] residence. Although Bingaman testified that he was upset that these individuals were in his apartment, he told them they could stay as long as they did not make any noise. Bingaman and his guest then went to sleep. The guest went into the single bedroom and Bingaman went to sleep on the couch in the living room.
Bingaman testified that he had also given permission to Alan Martin (victim) to come to his apartment to stay in the early morning hours of March 13, 2011. Bingaman testified that he conveyed this to [Hornberger] and Lepley and then he went to sleep. At some point between the time that Bingaman went to sleep and 6:30 a.m., the victim entered the residence. An altercation broke out between the victim and [Hornberger's] friend, Lepley. The testimony indicated that the victim had Lepley in a choke hold and while the victim and Lepley were engaged in the altercation, [Hornberger] grabbed a steak knife and plunged it into the side of the head of the victim, ultimately killing him.
Trial Court Opinion, 6/13/12, at 1-2.
After the witnesses presented their testimony, the trial court prepared to instruct the jury regarding the law they should apply to the evidence. Hornberger claimed that the killing was justified based upon his need to defend Lepley from Martin's attack and, accordingly, he requested instructions pertaining to the defense of justification. The trial court agreed that Hornberger presented evidence that raised a justification defense and proceeded to instruct the jury regarding the law of justification, as to both self-defense and defense of others, in Pennsylvania. See N.T. Trial, 3/30/12, at 229-234.
The court informed the jury that the Commonwealth carried the burden to prove, beyond a reasonable doubt, that Hornberger did not act in justifiable defense of Lepley. Id. at 232. With respect to the duty to retreat, the trial court explained that in order to defeat Hornberger's claim of justification, the Commonwealth needed to prove that "[Hornberger] knew that he could avoid the necessity of using deadly force with complete safety by retreating himself or trying to cause [Lepley] to retreat and failed to do so." Id. at 234. The court offered the following guidance concerning when, and under what circumstances, the duty to retreat applied to Hornberger and Lepley:
Similar to [the court's instructions concerning self-defense], if you find that [Hornberger] and [Lepley] had the right to be in Thomas Bingaman's apartment that evening and you also find that Alan Martin did not have the right to be in the Bingaman residence, then [Hornberger] and [Lepley] had no obligation to retreat from the apartment. If, however, you find that [Hornberger] and [Lepley] and also Alan Martin had the privilege to be present in the Bingaman residence, then [Hornberger] and [Lepley] had a duty to retreat to avoid the necessity of deadly force.
Id. After the trial court concluded its instructions to the jury, counsel for Hornberger moved for a mistrial, objecting that no duty to retreat applied where the defendant took action in defense of ...