HomeMy WebLinkAboutCP-21-CR-0278-2007 (2)
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CHARGES: (1) AGGRAVATED ASSAULT
: (2) SIMPLE ASSAULT
: (3) MUTUAL AFFRAY
ANTHONY F. CLARK :
OTN: K511842-2 : CP-21-CR-0278-2007
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., October 16, 2007.
In this criminal case, Defendant was found guilty by a jury of simple
assault as the result of an incident in which he knocked the victim’s teeth loose
1
with a brick. Based upon a criminal history of serious offenses including
robbery, firearms not to be carried without a license, assault by a prisoner, and
2
resisting arrest, he received a county prison sentence in the standard range of the
3
guidelines. From the judgment of sentence, Defendant has filed a direct appeal to
4
the Pennsylvania Superior Court.
The grounds for the appeal have been expressed in a statement of matters
complained of on appeal as follows:
1. The evidence was insufficient to sustain a conviction for simple
assault.
2. The Commonwealth did not sufficiently disprove the defense of
self defense.
3. Jury instructions regarding the offenses and defense of self defense
5
were improper.
1
Order of Court, June 12, 2007. Defendant was found not guilty of aggravated assault, and the
jury declined to find that the crime arose from a mutual affray. Id.
2
Presentence Investigation Report, at 2. The presentence investigation report in this case was
made part of the record. Order of Court, August 21, 2007.
3
Order of Court, August 21, 2007. Defendant was sentenced to undergo imprisonment in the
Cumberland County Prison for a period of not less than eight months nor more than 23 months.
Id.
4
Defendant’s Notice of Appeal, filed August 29, 2007.
5
Defendant’s Concise Statement of Matters Complained of on Appeal, filed September 11, 2007.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident in the early morning hours of Saturday, January
13, 2007, in the Borough of Carlisle, Cumberland County, Pennsylvania,
6
Defendant was charged with aggravated assault and simple assault.
Subsequently, by agreement of counsel, the information in the case was amended
7
to include a mutual affray option for the trier of fact.
At Defendant’s jury trial, the Commonwealth presented the testimony of
three witnesses and Defendant testified on his own behalf. In the
Commonwealth’s case-in-chief, the alleged victim, the affiant, and a second police
officer testified.
The alleged victim, Antoine Pugh, testified that (a) on Saturday, January
89
13, 2007, at 1:00 or 2:00 a.m., he became involved in an argument with
1011
Defendant in the doorway of a house in the Borough of Carlisle where Mr.
12
Pugh resided with Mr. Pugh’s fiancé and her son, (b) Mr. Pugh, assuming that
13
the argument had concluded, reached into his pocket for cigarettes, (c) Defendant
14
struck him unexpectedly in the mouth with a brick, (d) the blow dislodged
15
between four to six of Mr. Pugh’s teeth, produced profuse bleeding in his
6
Criminal Complaint, Commonwealth v. Clark, filed January 16, 2007.
7
N.T. 70, Trial, June 12, 2007 (hereinafter N.T. __).
8
N.T. 6.
9
N.T. 6.
10
N.T. 6-7.
11
N.T. 28.
12
N.T. 5-6, 13, 27-28; see N.T. 53.
13
N.T. 9, 17.
14
N.T. 9.
15
N.T. 7.
2
161718
mouth, made him dizzy, and caused pain, (e) Defendant remained in the area,
19
bragging that he had beaten Mr. Pugh up, (e) Mr. Pugh was transported by
2021
ambulance to a hospital, where a doctor snapped his teeth back into place, and
22
(f) the teeth were then wired into place in a dentist’s office. The alleged victim
23
testified further that (a) he had not struck Defendant, (b) he had suffered an
injury to his hand in the incident, either in trying to defend himself from the blow
2425
or when he fell, (c) he was 28 years old, and (d) he was 6’ 3” tall and
26
Defendant was 6’ 2” or 6’ 3” tall. He conceded that he was heavier than
2728
Defendant and had been intoxicated at the time of the assault.
The affiant in the case, Officer Daniel Parson of the Carlisle Borough
29
Police Department, testified that when he arrived on the scene he saw Defendant
30
behind a bush or a house, “just kind of watching.” He stated that he heard
31
Defendant say, “I knocked that mother fucker out,” that Defendant was sweating
32
profusely, and that Defendant was exhibiting mood swings, “at one
16
N.T. 7, 9.
17
N.T. 7.
18
N.T. 8.
19
N.T. 11.
20
N.T. 8, 11.
21
N.T. 8.
22
N.T. 8.
23
N.T. 9.
24
N.T. 11-12, 18.
25
N.T. 5.
26
N.T. 27.
27
N.T. 27.
28
N.T. 16.
29
N.T. 32-33.
30
N.T. 33.
31
N.T. 33.
32
N.T. 33.
3
moment . . . passive, the next minute . . . yelling and screaming, telling me if I
33
didn’t get the victim out of [the] house he was going to kill him.”
According to Officer Parson, he could hear the alleged victim calling for
34
help from inside the house and found him lying on a couch, “with his head
propped back. There was towels, paper towels, and clothes on the coffee table and
they were clotted with blood. He was using blood to try to cover his mouth to
35
keep everything in.” What transpired next was recounted by Officer Parson as
follows:
I took a couple seconds and I talked to Mr. Pugh at which time I
asked him to remove the towels. When I did, four to six of his teeth were
totally dislodged. They were bent the whole way back into his mouth and
you could actually see the roots exposed. They were totally knocked back
36
and they were hanging there by gum or loose skin, whatever.
* * * *
. . . As I was giving medical treatment to Mr. Pugh—I am a nationally
recognized emergency medical technician—there was additional
emergency units responding. As they were coming, people were coming
through the door. I had my back to the door and to describe it, it was
down like a hallway, when you open the residence you have to take 10
steps or 15 steps and there is a living room that open[s] up to your right.
So from where Mr. Pugh was sitting, he wouldn’t be able to see who
was coming in the door. He wouldn’t have been able to see, he wouldn’t
have known. But the Defendant came crashing in through the door. I had
my back to the door. . . . It was in the middle of the interview when I was
giving him medical attention. He tried to come back in the door and fight
Mr. Pugh again. He said something to the effect that he is not done yet or
something. I had to remove my tazer and point it at Mr. Clark and try to
get him out of the house. I pointed my tazer and I told Mr. Clark, get out
of the house or I am going to tazer you and arrest you.
Mr. Clark stood outside. As the EMTs or the paramedics decided to
transport Mr. Pugh to the hospital for medical attention, the Defendant,
Mr. Clark, came back at him and tried to fight with him again as he was
walking out to the ambulance. The entire time he was at the ambulance I
had to keep Mr. Clark back with either a tazer or verbal commands to keep
him back because he was still coming after the victim.
33
N.T. 33.
34
N.T. 33.
35
N.T. 33-34.
36
N.T. 34.
4
The victim was defenseless, he wasn’t trying to fight, he was just
trying to get in the ambulance because he was worried about his teeth. I
37
had to deal with Mr. Clark coming back.
* * * *
38
. . . [W]e had to call North Middleton for assistance . . . .
39
Officer Stephen Latshaw of the Carlisle Borough Police Department
testified that, on the following day, he served an arrest warrant on Defendant with
40
respect to the incident herein. Officer Latshaw recounted the event as follows:
Q When you arrested Mr. Clark, did you tell him you were
taking him into custody for the thing with Antoine Pugh?
A I got out of my car, Mr. Clark was standing there with two
other gentlemen, I believe it was Demario Gumby and Eric Coleman might
have been another. Coleman, I think it was Eric.
I asked Anthony to come back to me, which he did. He had a
black backpack on. He walked over. I said you got a warrant for that
thing with Antoine.
Q What was Clark’s response?
41
A He said, I hit that dude with a brick.
In addition to the foregoing witnesses, the Commonwealth presented
42
evidence in the form of part of the brick purportedly used by Defendant.
Photographs of the alleged victim taken after the incident were also introduced and
43
admitted.
Defendant testified that (a) immediately prior to the incident Mr. Pugh had
44
gone into the house in which Mr. Pugh resided with his fiancé, (b) Defendant
37
N.T. 34-35.
38
N.T. 36.
39
N.T. 49.
40
N.T. 49.
41
N.T. 50.
42
Commonwealth’s Ex. 3
43
Commonwealth’s Exs. 1-2.
44
N.T. 58.
5
45
became concerned about the safety of Mr. Pugh’s fiancé who was inside, and (c)
Defendant remained outside the house
debating on whether I was going to go in there and pull him out and really
try to hurt him. Then I went in there, and I am like, Twan, get out of here,
come on out here. Because I was going to assault him on the street if I had
to, you know what I mean.
I tried, I did, I turned his anger from her on to me, and that is exactly
46
what happened, he came busting out the door.
47
Defendant testified that he himself was just “a small dude,” that Mr. Pugh
4849
proceeded to strike him first, that Defendant’s actions were defensive, that he
5051
managed to strike Mr. Pugh twice with his fist, and that no brick was involved.
Officer Latshaw, according to Defendant’s testimony, was “mistaken” in thinking
52
that he had said that he had struck Mr. Pugh with a brick. Defendant rejected
Officer Parson’s testimony that Defendant had gone into the house after Mr. Pugh,
53
following the arrival of police. He conceded that he told Officer Parson that he
54
had “knocked that mother fucker out.” With respect to Defendant’s credibility as
a witness, the Commonwealth utilized a 2000 robbery conviction of Defendant for
55
purposes of impeachment.
Defendant also secured a stipulation from the Commonwealth that the
56
alleged victim’s blood alcohol content after the incident at 3:33 a.m. was .26%.
45
N.T. 58
46
N.T. 61.
47
N.T. 64.
48
N.T. 65.
49
N.T. 64.
50
N.T. 66-67.
51
N.T. 66.
52
N.T. 74.
53
N.T. 72.
54
N.T. 69.
55
N.T. 78.
56
N.T. 77.
6
In its charge to the jury, the court defined the offense of simple assault, and
the less serious form thereof of mutual affray, utilizing the language of
57
Pennsylvania’s Suggested Standard Criminal Jury Instructions, as follows:
In Count 2, the Defendant is charged with Simple Assault. For
present purposes there are two ways in which a Simple Assault can be
committed. In a given incident the person could be guilty of one form or
the other form or both forms or not guilty of either form.
This is the instruction on one form of Simple Assault and that
involves actually causing bodily injury. The Defendant has been charged
in Count 2 with Simple Assault in the form of actually causing bodily
injury.
To find the Defendant guilty of this offense you much find that all of
the following elements have been proven beyond a reasonable doubt.
First, that the Defendant caused bodily injury to Antoine Pugh. Bodily
injury means impairment of physical condition or substantial pain, and,
second, that the Defendant’s conduct in this regard was intentional,
knowing, or reckless.
A person acts intentionally with respect to bodily injury when it is his
conscious object or purpose to cause such injury. A person acts knowingly
with respect to bodily injury when he is aware that it is practically certain
that his conduct will cause such a result.
A person acts recklessly with respect to bodily injury when he
consciously disregards a substantial and unjustifiable risk that bodily
injury will result from his conduct. The risk must be of such a nature and
degree that considering the nature and intent of the Defendant’s conduct
and the circumstances known to him its disregard involves a gross
deviation from the standard of conduct that a reasonable person would
observe in the Defendant’s situation. That is one form of Simple Assault.
This is the second form, and it has to do with bodily injury attempted.
The Defendant has been charged in Count 2 with Simple Assault in the
form of bodily injury attempted. To find the Defendant guilty of this
offense you must find that all of the following elements have been proven
beyond a reasonable doubt.
First, that the Defendant engaged in conduct that constituted a
substantial step toward causing bodily injury to Antoine Pugh. An act is a
substantial step if it is a major step toward the commission of the crime
and one that strongly corroborates your belief that the Defendant at the
time he did the act had a firm intent to commit the crime of Simple
Assault. An act can be a substantial step even though other steps would
have to be taken before the crime could actually be carried out.
57
Pennsylvania Suggested Standard Jury Instructions §§15.2701A, 15.2701B, 15.2701F (2005
rev.)
7
Second, that the Defendant’s conduct in this regard was intentional
or, in other words, that it was his conscious object or purpose to cause such
bodily injury. Bodily injury means impairment of physical condition or
substantial pain.
This is the instruction on the charge at Count 3 which we will call
Mutual Affray. There has been evidence presented in this case from which
you might conclude that the Defendant and Antoine Pugh were at the time
of the alleged assault engaged in a fight or a scuffle entered into by their
mutual consent. In other words, the contention would be that both of the
parties engaged in the fighting mutually, both desiring to do so. If this was
so, the effect would be to make the assault charge here a less serious
offense than is charged in Count 2. Given this, to find the Defendant
guilty of the charge at Count 2, you must be satisfied beyond a reasonable
doubt that the fighting involved here did not begin by mutual consent, in
other words, the Commonwealth must prove beyond a reasonable doubt
that the alleged victim did not at the outset of the incident between him
and the Defendant consent to fighting with the Defendant.
If the Commonwealth fails to prove that lack of consent by the
alleged victim beyond a reasonable doubt but does prove the other
elements of Simple Assault as I have defined them for you, then you may
only find the Defendant guilty of the lesser type of simple assault which
we are calling Mutual Affray.
Of course, if the Commonwealth fails to prove beyond a reasonable
doubt any of the elements of Simple Assault as I have defined them for
58
you, then your verdict must be not guilty of Mutual Affray either.
This instruction was reiterated in response to a request by the jury for its
59
repetition during deliberations. No objections, suggestions or corrections were
offered by the prosecution or defense to any part of the jury instructions or their
60
reiteration.
With respect to the issue of self-defense, the court gave the following
instruction patterned after Pennsylvania’s Suggested Standard Criminal Jury
61
Instructions relating to the use of non-deadly force, in accordance with a point
58
N.T. 6-9, Charge of Court, June 12, 2007. In this case, the charge of the court was transcribed
and filed separately from the balance of the trial.
59
N.T. 18-22, Charge of Court, June 12, 2007.
60
N.T. 17, 22, Charge of Court, June 12, 2007.
61
Pennsylvania Suggested Standard Criminal Jury Instructions §9.501 (2005 rev.).
8
62
for charge proposed by Defendant, and with the concurrence of the
63
Commonwealth:
This brings us to the subject of self defense. This is a complicated
instruction I am sorry to say to you, but if you need me to repeat it during
your deliberations, I will be more than happy to do so. The principles
aren’t that complicated, but I have to admit that it does sound complicated
when it is read.
The Defendant has raised the issue of whether he acted in self defense
when he struck the alleged victim Antoine Pugh. Self defense is called
justification in the law of Pennsylvania. If the Defendant’s actions were
justified, you cannot find him guilty beyond a reasonable doubt of either
Aggravated Assault or Simple Assault as charged at Count 2.
The issue having been raised, it is the Commonwealth’s burden to
prove beyond a reasonable doubt that the Defendant did not act in
justifiable self defense. The Commonwealth may prove that this use of
force was not justified if it can show beyond a reasonable doubt any of the
following elements:
A. that the Defendant did not reasonably believe that it was
immediately necessary for him to use force to protect himself against the
unlawful use of force by Antoine Pugh. The Commonwealth must prove
either: One, that the Defendant did not actually believe he was in danger of
becoming the victim of unlawful force such that he needed to use force to
defend himself at the moment he used it; or, two, that while the Defendant
actually believed he needed to use such force, his belief was unreasonable
in light of all of the circumstances known to him.
Keep this in mind, a person is justified in using force against another
not only when he is in actual danger of unlawful attack but also when he
mistakenly but reasonably believes that he is. A person is entitled to
estimate the necessity for the force he or she employ[]s under the
circumstances as he or she reasonably believes them to be at the time.
In the heat of conflict, a person who has been attacked ordinarily has
neither time nor composure to evaluate carefully the danger and make nice
judgments about exactly how much force is needed to protect himself or
herself.
Consider the realities of the situation faced by the Defendant here
when you assess whether the Commonwealth has proved beyond a
reasonable doubt either that he did not believe he was in actually in danger
of unlawful force to the extent that he needed to use such force in self
defense, or that, while he did believe that[,] his or her belief was
unreasonable. Unlawful force means any form of force, including
confinement, that is employed without the consent of the person against
62
See N.T. 30-31.
63
See N.T. 30-31.
9
whom it is directed where it is used to constitute an offense or actionable
tort.
B. That, one, in the same encounter with Antoine Pugh, the Defendant
engaged in conduct that demonstrated his intent to use unlawful force
against the alleged victim, and, two, that by that conduct, he provoked the
use of force against himself. Conduct that is not itself the unlawful use of
force does not constitute the kind of provocation upon which the
Commonwealth may rely to prove its case.
If you find beyond a reasonable doubt that it is of such a nature, you
must then ask whether it provoked the similar use of force against him. In
this assessment, the conduct by the Defendant may be the initial
provocation of the fight, or it may be an act that [continues] or escalates
[it]. However, even if the Defendant was the initial aggressor, or was the
person who escalated the incident to one involving the use of unlawful
force, if he thereafter withdraws in good faith, making it clear that his
further intentions are peaceable, and the alleged victim pursues him and
renews the fight, he does not forfeit his right to claim justifiable self
defense.
If, on the other hand, you find beyond a reasonable doubt that the
Defendant provoked the use of force against himself by engaging in
conduct that showed that he intended to cause unlawful force to the alleged
victim, you may find that his conduct was not justified. Note that a
Defendant in this particular situation has no duty to retreat from the
incident or surrender possession of a thing or do or not do any act he or she
has no legal duty to do or refrain from doing, as long as he or she has not
provoked the unlawful use of force as I have explained the matter above.
Unless the Commonwealth proves one of these two elements, the use
of force by the Defendant is justified and you must find him not guilty of
both Simple Assault and Aggravated Assault. If the Commonwealth does
prove one of the elements beyond a reasonable doubt, the actions of the
64
Defendant are not justified.
As noted, no objections, suggestions or corrections were offered by the
65
prosecution or Defendant with respect to any part of the jury instructions.
Following deliberations, the jury found Defendant not guilty of aggravated assault
and guilty of simple assault, and rejected the proposition that the incident involved
66
a mutual affray.
64
N.T. 9-11, Charge of Court, June 12, 2007.
65
N.T. 17, 22, Charge of Court, June 12, 2007.
66
N.T. 84-85.
10
67
Defendant was sentenced on August 21, 2007. He filed an appeal from
68
the judgment of sentence on August 29, 2007.
DISCUSSION
Sufficiency of the evidence—simple assault. Initially, it may be noted that a
general allegation of insufficiency of the evidence in a statement of matters
complained of on appeal is generally considered inadequate to facilitate appellate
review of the issue. Commonwealth v. Flores, 2007 PA Super 87, ¶¶15-17, 921
A.2d 517 (2007).
In a review of the merits of a sufficiency-of-the-evidence claim in a
criminal case, the proper test is “whether, viewing the evidence admitted at trial in
the light most favorable to the Commonwealth and drawing all reasonable
inferences in the Commonwealth’s favor, there is sufficient evidence to enable the
trier of fact to find every element of the [crime] charged beyond a reasonable
doubt.” Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354
(1996) (quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d
1286, 1288 (1984)). The trier of fact is “free to believe all, part or none of the
evidence.” Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257
(1986).
Under Section 2701(a)(1) of the Crimes Code, “[a] person is guilty of
assault if he . . . attempts to cause or intentionally, knowingly or recklessly causes
bodily injury to another . . . .” Act of December 6, 1972, P.L. 1482, §1, 18 Pa.
C.S. §2701(a)(1). “Bodily injury” means “[i]mpairment of physical condition or
substantial pain.” Id., §2301.
In the present case, it is believed that the evidence recited above tending to
show that, without provocation, Defendant struck the victim in the face with a
brick, dislodging at least four of his teeth, was sufficient to show beyond a
67
Order of Court, August 21, 2007.
68
Defendant’s Notice of Appeal, filed August 29, 2007.
11
reasonable doubt that he (a) both attempted to cause bodily injury and
intentionally, knowingly or recklessly caused bodily injury to the victim and (b)
did so under circumstances not constituting a mutual affray.
Sufficiency of the evidence—self-defense. As noted above, a general
allegation of insufficiency of the evidence in a statement of matters complained of
on appeal is generally considered inadequate to facilitate appellate review of the
issue. Commonwealth v. Flores, 2007 PA Super 87, ¶¶15-17, 921 A.2d 517
(2007).
The standard of review pertinent to a sufficiency-of-the-evidence claim on
its merits, and the prerogative of the fact-finder as to an assessment of the
credibility of witnesses, has also been noted above. With specific reference to
self-defense, the Pennsylvania Supreme Court has stated the following:
The use of force against a person is justified when the actor believes
that such force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by the other person. When a
defendant raises the issue of self-defense, the Commonwealth bears the
burden to disprove such a defense beyond a reasonable doubt. While there
is no burden on a defendant to prove the claim, before the defense is
properly at issue at trial, there must be some evidence, from whatever
source, to justify a finding of self-defense. If there is any evidence that
will support the claim, then the issue is properly before the fact finder.
Commonwealth v. Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 (2001) (citations
omitted). Section 505 of the Crimes Code contains a detailed statement of the
rules pertaining to self-defense:
(a) Use of force justifiable for protection of the person.
—The use
of force upon or toward another person is justifiable when the actor
believes that such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by such other person
on the present occasion.
(b) Limitations on justifying necessity for use of force.
—
(1) The use of force is not justifiable under this
section:
(i) to resist an arrest which the actor
knows is being made by a peace officer,
although the arrest is unlawful; or
(ii) to resist force used by the occupier
or possessor of property or by another person on
12
his behalf, where the actor knows that the person
using the force is doing so under a claim of right
to protect the property, except that this limitation
shall not apply if:
(A) The actor is a public officer
acting in the performance of his duties or
a person lawfully assisting him therein or
a person making or assisting in a lawful
arrest;
(B) the actor has been unlawfully
dispossessed of the property and is
making a reentry or reception justified by
section 507 of this title (relating to use of
force for the protection of property); or
(C) the actor believes that such force
is necessary to protect himself against
death or serious bodily injury.
(2) The use of deadly force is not justifiable under
this section unless the actor believes that such force is
necessary to protect himself against death, serious bodily
injury, kidnapping or sexual intercourse compelled by
force or threat; nor is it justifiable if:
(i) the actor, with the intent of causing
death or serious bodily injury, provoked the use
of force against himself in the same encounter;
or
(ii) the actor knows that he can avoid the
necessity of using such force with complete
safety by retreating or by surrendering
possession of a thing to a person asserting a
claim of right thereto or by complying with a
demand that he abstain from any action which
he has no duty to take, except that:
(A) the actor is not obliged to retreat
from his dwelling or place of work, unless
he was the initial aggressor or is assailed
in his place of work by another person
whose place of work the actor knows it to
be; and
(B) a public officer justified in using
force in the performance of his duties or a
person justified in using force in his
assistance or a person justified in using
force in making an arrest or preventing an
escape is not obliged to desist from efforts
to perform such duty, effect such arrest or
prevent such escape because of resistance
13
or threatened resistance by or on behalf of
the person against whom such action is
directed.
(3) Except as required by paragraphs (1) and (2) of
this subsection, a person employing protective force may
estimate the necessity thereof under the circumstances as
he believes them to be when the force is used, without
retreating, surrendering possession, doing any other act
which he has no legal duty to do or abstaining from any
lawful action.
(c) Use of confinement as protective force.
—The justification
afforded by this section extends to the use of confinement as protective
force only if the actor takes all reasonable measures to terminate the
confinement as soon as he knows that he safely can, unless the person
69
confined has been arrested on a charge of crime.
In the present case, it is believed that the evidence recited above tending to
show that, without provocation, Defendant struck the victim in the face with a
brick, dislodging at least four of his teeth, was sufficient to show beyond a
reasonable doubt that Defendant committed the act without a belief that it was
immediately necessary for the purpose of protecting himself against the use of
unlawful force by the victim.
Jury instructions regarding offenses and self-defense. Under Pennsylvania
Rule of Appellate Procedure1925(b)(4)(ii), an appellant’s statement of matters
complained of on appeal is required to “identify each ruling or error that the
appellant intends to challenge with sufficient detail to identify all pertinent issues
for the judge.” As with a general challenge to the sufficiency of the evidence, it
may be argued that a boilerplate challenge to an instruction on a crime or a
defense thereto is not sufficiently specific to facilitate appellate review of the
issue. Furthermore, it is axiomatic that “[n]o portions of [a] charge nor omissions
therefrom may be assigned as error, unless specific objections are made thereto
before the jury retires to deliberate.” Pa. R. Crim. P. 647(B); see Commonwealth v.
Pressley, 584 Pa. 624, 650, 887 A.2d 220, 224 (2005).
69
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §505.
14
Finally, “it is an unquestionable maxim of law in this Commonwealth that a
trial court has broad discretion in phrasing its instructions . . . .” Commonwealth v.
Porter, 556 Pa. 301, 321, 728 A.2d 890, 899 (1999). In this regard, an instruction
which “fairly conveys the required legal principles at issue” is considered to be
adequate. Commonwealth v. Jones, 546 Pa. 161, 192, 683 A.2d 1181, 1196
(1996).
In the present case, where the instructions given by the court as to simple
assault, mutual affray and self-defense were consistent with the statutory law on
those subjects, were patterned after the Pennsylvania Suggested Standard Criminal
Jury Instructions, and, in the case of self-defense, were in conformity with a point
requested by Defendant on the issue, and where no objection was made to any
portion of the charge as given, it is believed that Defendant’s request for relief
based upon a general allegation of error as to those instructions can not be
sustained.
For the foregoing reasons, it is believed that the judgment of sentence
imposed herein was properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Jonathan R. Birbeck, Esq.
Office of the District Attorney
Timothy L. Clawges, Esq.
Office of the Public Defender
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