Com. v. Coleman

Decision Date09 August 1985
Citation496 A.2d 1207,344 Pa.Super. 481
PartiesCOMMONWEALTH of Pennsylvania v. Randall COLEMAN, Appellant. 00112
CourtPennsylvania Superior Court

Carmela R. M. Presogna, Asst. Public Defender, Erie, for appellant.

Michael R. Cauley, Asst. Dist. Atty., Erie, for Commonwealth, appellee.

Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.

BROSKY, Judge.

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 to one to twenty-three months imprisonment. This appeal timely followed.

Appellant argues that the trial court erred in failing to grant his request to charge the jury as to the grade of simple assault as a third degree misdemeanor in addition to the instruction on the crime as a second degree misdemeanor. We agree.

Simple assault is defined under 18 Pa.C.S. § 2701 as follows:

2701. Simple Assault

(a) Offense defined--A person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;

(2) negligently causes bodily injury to another with a deadly weapon; or

(3) attempts by physical menace to put another in fear of imminent serious bodily injury.

(b) Grading--Simple assault is a misdemeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree. (Emphasis supplied).

In its charge, the trial court instructed the jury as to § 2701(a). The court also charged the jury as to appellant's claim of self-defense, including the fact that in order to qualify for a claim of self-defense an actor confronted by nondeadly force must not use excessive force in retaliation, see Commonwealth v. Jones, 231 Pa.Super. 300, 332 A.2d 464 (1974). However, when, at the close of the instructions, appellant requested the trial court to also charge the jury as to § 2701(b), the court refused to do so. 1

We find, and the lower court treated, appellant's request as analogous to a request for an instruction on a lesser included offense. As with an instruction on a lesser included offense, appellant's requested instruction would have given him the benefit not of the possibility that the jury would find him not guilty, but rather of the possibility that it would find him guilty of an offense carrying a less severe sentence. 2

A trial court, however, has no obligation to charge upon law which has no application to the evidence presented at trial. Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976). It must only charge on a lesser included offense if there is some disputed evidence concerning an element of the greater charge or if the undisputed evidence is capable of more than one rational inference. See Commonwealth v. Channell, 335 Pa.Super. 438, 484 A.2d 783 (1984).

In the instant case, the trial court concluded that it would not charge on § 2701(b) because there was no evidence presented to the jury that the fight was entered into by mutual consent. We find that conclusion to be erroneous.

First, we believe the testimony of the bystander, Donald Glover, would have supported an inference that the fight was entered into by mutual consent. Even had there not been this testimony, we believe appellant would have been entitled to the desired instruction. The jury also could have found that the victim was the initial aggressor and that appellant had begun to act in self-defense, but had used excessive force in doing so. ...

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10 cases
  • Com. v. Kyle
    • United States
    • Pennsylvania Superior Court
    • 20 Octubre 1987
    ...the relevant legal principles which apply to the evidence presented at trial, the charge is correct. See Commonwealth v. Coleman, 344 Pa.Super. 481, 484, 496 A.2d 1207, 1209 (1985). We agree with the trial court that the proffered instruction was inapplicable and improper. As the underscore......
  • Com. v. Manchas
    • United States
    • Pennsylvania Superior Court
    • 28 Octubre 1993
    ...presented at trial." Commonwealth v. Tervalon, 463 Pa. 581, 593, 345 A.2d 671, 678 (1975). See also: Commonwealth v. Coleman, 344 Pa.Super. 481, 485, 496 A.2d 1207, 1209 (1985); Commonwealth v. Santarelli, 334 Pa.Super. 589, 601, 483 A.2d 895, 901 (1984), cert. denied, 476 U.S. 1116, 106 S.......
  • Com. v. Westcott
    • United States
    • Pennsylvania Superior Court
    • 24 Abril 1987
    ...the evidence produced does not relate. Commonwealth v. Showalter, 275 Pa.Super. 1, 418 A.2d 580 (1980). See also Commonwealth v. Coleman, 344 Pa.Super. 481, 496 A.2d 1207 (1985) (trial court not required to charge upon law having no relation to evidence presented at The trial court also vie......
  • Com. v. Cannon
    • United States
    • Pennsylvania Superior Court
    • 18 Agosto 1989
    ...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 ......
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