Com. v. Wilson

• Decision Date: 05 April 1994
• Parties: COMMONWEALTH of Pennsylvania v. Sidney WILSON, Appellant.
• Court: Pennsylvania Superior Court

Page 1194

639 A.2d 1194

433 Pa.Super. 28

COMMONWEALTH of Pennsylvania v. Sidney WILSON, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 20, 1994.

Filed April 5, 1994.

John P. Joergensen, Philadelphia, for appellant.

Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, HUDOCK and SAYLOR, JJ.

WIEAND, Judge.

Sidney Wilson was tried by jury and was found guilty of third degree murder and possession of an instrument of crime. ¹ Post-trial motions were denied, and Wilson was sentenced to serve concurrent terms of imprisonment of not less than six (6) years nor more than twelve (12) years for third degree murder and not less than one (1) year nor more than five (5) years for possessing an instrument of crime. On direct appeal from the judgment of sentence, the sole issue raised by Wilson is whether the trial court erred by denying a defense request for a jury instruction on self-defense. After careful review, we reverse and remand for a new trial.

At trial, the Commonwealth presented evidence which established that, on November 28, 1989, at or about 4:30 p.m., appellant drove to the intersection of Cumberland and Garnet Streets in Philadelphia, where Stacey Sharpe, Owen Snipe and Keenan Evans were standing and talking. Appellant approached the three men and asked, "Who is Stacey?" When Sharpe identified himself, appellant pulled out a .38 caliber revolver, put it to Sharpe's chest and ordered Sharpe to "give it all up." Sharpe raised his hands, and appellant took from him what appeared to be money. Thereafter, Sharpe attempted to take the gun away from appellant. A brief struggle ensued, and when appellant began to run away, Sharpe pursued him. Appellant turned and shot Sharpe in the chest, inflicting a fatal wound.

A different version of events was presented by appellant, who testified in his own defense. Appellant said that, on the morning of the shooting, he had taken his friend's car and was driving around in North Philadelphia. During these travels, appellant was told that he could purchase cocaine on the corner of Cumberland and Garnet Streets from a man named Stacey. Appellant testified that he went to that corner and asked the men standing there, "Who is Stacey?" In response, Sharpe identified himself and asked appellant "how much do you need?" At this point, according to appellant, Owen Snipe told Sharpe not to serve appellant and punched appellant in the face. Appellant punched Snipe in return, after which Sharpe pulled a gun from his jacket pocket. Appellant grabbed for the gun and he and Sharpe began to struggle for possession. As they continued to struggle, the gun was discharged into the air. The events which followed were described by appellant as follows:

Then we began to tussle even harder. I then grabbed the handle of the gun and flipped it around and I snatched it. I had the gun in my hand. Stacey snatched it back, tried to snatch it back anyway. We were tussling for the gun. While we were tussling for the gun, it was like a tug of war. I was pulling and pulling and [either] I tripped on the curb or he got tripped over my feet but I fell. When I fell, I fell hitting my elbow and the gun went off.

Appellant testified further that when the gun discharged, Sharpe was standing over him, attempting to wrestle the gun away from him. After Sharpe was shot, appellant ran back towards the car, hearing two more gun shots as he fled.

At the conclusion of the trial court's instructions to the jury, defense counsel requested an instruction on self-defense. The trial court refused the requested instruction holding that it was not appropriate under the evidence presented. On appeal, it is argued that the trial court's refusal to instruct on self-defense was error. Appellant contends that his own testimony was sufficient to create a self-defense issue. Although he concedes that his testimony indicated an accidental killing, he argues that nevertheless he was entitled to a jury instruction on self-defense "because the shooting occurred at a time and under circumstances that would have permitted a reasonable person to use deadly force to protect himself." The Commonwealth, for its part, takes the position that appellant's defense was that the killing was accidental, without any evidence that appellant had used the gun to protect himself.

"While the jury must serve as the sole finder of fact, the trial court has a duty to frame legal issues for the jury and instruct the jury on the applicable law." Commonwealth v. Hart, 388 Pa.Super. 484, 492, 565 A.2d 1212, 1216 (1989). "A jury instruction given by the trial court will be upheld so long as it 'sufficiently and accurately apprises a lay jury of the law it must consider in rendering its decision.' " Commonwealth v. Calderini, 416 Pa.Super. 258, 266, 611 A.2d 206, 210 (1992), quoting Commonwealth v. Prosdocimo, 525 Pa. 147, 154, 578 A.2d 1273, 1276 (1990). "A trial court is not obliged to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is [requested] and the evidence presented at trial." Commonwealth v. Tervalon, 463 Pa. 581, 593, 345 A.2d 671, 678 (1975). See also: Commonwealth v. Snoke, 525 Pa. 295, 302, 580 A.2d 295, 298 (1990); Commonwealth v. Schaller, 493 Pa. 426, 430, 426 A.2d 1090, 1092 (1981). Nevertheless, " '[a] defendant is entitled to an instruction on any recognized defense which has been requested, which has been made an issue in the case, and for which there exists evidence sufficient for a reasonable jury to find in his or her favor.' " Commonwealth v. Borgella, 531 Pa. 139, 142, 611 A.2d 699, 700 (1992), quoting Commonwealth v. Weiskerger, 520 Pa. 305, 312-313, 554 A.2d 10, 14 (1989).

In Commonwealth v. Mayfield, 401 Pa.Super. 560, 585 A.2d 1069 (1991), the Superior Court, sitting en banc, reviewed extensively the requirements that a defendant must meet in order to be entitled to a jury instruction on self-defense. The Court observed:

Before the issue of self-defense may be submitted to a jury for consideration, a valid claim of self-defense must be made out as a matter of law, and this determination must be made by the trial judge. Such claim may consist of evidence from whatever source. "Such evidence may be adduced by the defendant as part of his case, or conceivably, may be found in the Commonwealth's own case in chief or be elicited through cross-examination." Commonwealth v. Rose, 457 Pa. 380, 389, 321 A.2d 880, 884 (1974) (similarly discussing the type of evidence necessary to place in issue a defense of intoxication). However, such evidence from whatever source must speak to three specific elements for a claim of self-defense to be placed in issue for a jury's consideration.

Thus, as provided by statute and as interpreted through our case law, to establish the defense of self-defense it must be shown that a) the slayer was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself therefrom; and c) the slayer did not violate any duty to retreat or to avoid the danger. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Cropper, supra [463 Pa. 529, 345 A.2d 645] (1975).

Commonwealth v. Black, 474 Pa. 47, 52, 376 A.2d 627, 630 (1977). If there is any evidence from whatever source that will support these three elements then the decision as to whether the claim is a valid one is left to the jury and the jury must be charged properly thereon by the trial court.

Our case law makes it crystal clear that the charge of self-defense must be given upon request where the jury would have a possible basis for finding it. See Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).

While there is no burden on the defendant to prove a claim of self-defense, it is nevertheless required that before such a defense is properly in issue at trial, there must be some evidence, from whatever source, to justify such a finding. Commonwealth v. Black, supra, 474 Pa. at 53, 376 A.2d at 630. See also Commonwealth v. Walley, 466 Pa. 363, 367, n. 2, 353 A.2d 396, n. 2 (1976); Commonwealth v. Cropper, 463 Pa. 529, 537-538, 345 A.2d 645, 649 (1975).

Thus, if there was evidence which would have supported the claim of self-defense, it was for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge. Commonwealth v. Gonzales, 463 Pa. 597, 345 A.2d 691 (1975); Commonwealth v. Lowe, 460 Pa. 357, 333 A.2d 765 (1975).

Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980); in accord, Commonwealth v. Bailey, 324 Pa.Super. 236, 471 A.2d 551 (1984) and Commonwealth v. Maione, 382 Pa.Super. 47, 554 A.2d 939 (1989). This is so even though the evidence of self-defense may appear to the trial court as not credible, for "it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced ... The fact finder is free to believe all, part, or none of the evidence." Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

Commonwealth v. Mayfield, supra, 401 Pa.Super. at 564-565, 585 A.2d at 1070-1071.

Several cases have considered the necessity for a jury instruction on self-defense where a defendant's testimony indicates an accidental killing. In Commonwealth v. Butler, 340 Pa. 162, 16 A.2d 7 (1940), the defendant testified that she had accidentally hit the trigger of a shotgun, causing it to discharge and kill her husband. In rejecting an argument that the jury should have been instructed on self-defense, the Supreme Court said:

At the trial there was no pretense that anything but "accidental killing" was relied on as a...