self-defense claim failed in case involving aggravated assault and recklessly endangering another person because defendant/actor had no reasonable belief that he was in danger of imminent bodily harm when he injured 8 the victim, he was not free from fault in provoking the incident, and he made no attempt to retreat
How later courts described this case
- self-defense claim failed in case involving aggravated assault and recklessly endangering another person because defendant/actor had no reasonable belief that he was in danger of imminent bodily harm when he injured 8 the victim, he was not free from fault in provoking the incident, and he made no attempt to retreat
- Concurring Opinion by Del Sole, J.
Written by the judges who cited it.
The opinion
DEL SOLE, Judge,
concurring:
After completing a review of the transcript in this case I believe that the trial court was correct in not charging on self defense or justification. However, the basis for my reasoning is somewhat different than that advanced in the Majority Opinion. Specifically, the defendant testified at length that his striking the victim with his automobile was accidental and not intentional. The following statements by the defendant appeared various places in the record:
... I got nervous and scared ... I put my car in drive, I pressed on the gas and my wheels did jerk to the left, ... and when I looked up he. was standing there, he was *58 actually standing there. I tried to miss this guy ... he was just there, he just happened to be there and God forbid, I’d do anything I can to help him, it just happened in such a way, I tried to miss him ...
(Record p. 238)
Q. Did you try to drive into hit Mr. Livingstone?
A. No, never, I would never in my life try to do something like that. I would do anything for this kid, anything that I could possibly. I feel so bad. I prayed and I did a lot of things.
Q. Did you want to hit him?
A. No way.
(Record p. 240)
[by defendant] ... I looked up and he was standing right on the comer, the left front fender. When I seen him it was like it shocked me and I tried to swerve away from him, and I just kept going. (Record p. 261)
A charge on self defense must be given upon request where the jury would have a possible basis for finding self defense. Commonwealth v. Bailey, 324 Pa.Super. 236 , 471 A.2d 551 (1984). However based upon the testimony of the defendant, it appears that his defense at trial consisted of a claim that the incident was an accident. He testified that he did not attempt to use any force against the victim. Thus, I believe that there was no evidence that the defendant acted in self-defense. See: Commonwealth v. Terrell, 276 Pa.Super. 136 , 419 A.2d 133, 134 (1980), (where the defendant was not entitled to a self-defense charge when he testified that he shot the victim accidentally and further testimony indicated that he had intentionally shot the victim without acting to protect himself from danger); and, Commonwealth v. Percell, 274 Pa.Super. 152 , 161-162 fn. 5, 418 A.2d 340 , 345-346 fn. 5 (1979) (where the court ruled that the denial of a self-defense instruction was proper since the appellant’s testimony that he fire shots into the air, but not at the victim did not suggest that he was defending himself), reversed on other grounds 499 Pa. 589 , 454 A.2d 542 (1982). Since I do not believe the record contains evidence, from *59 any source, that the defendant in this case acted in self-defense, I concur in the Majority’s decision to affirm the trial court’s ruling on this matter.