J. A10006/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 v.                      :
                                         :
ALEKSANDE SHWARZ,                        :
                                         :
                       Appellant         :      No. 3563 EDA 2015

           Appeal from the Judgment of Sentence July 21, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-0004424-2011

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                               FILED MAY 31, 2017

     Appellant, Aleksande Shwarz, appeals from the Judgment of Sentence

entered by the Philadelphia County Court of Common Pleas following his

convictions after a jury trial of Obstructing Administration of Law or Other

Governmental Function, Unsworn Falsification to Authorities, False Reports

to   Law   Enforcement    Authorities,   Official   Oppression,   and   False

Imprisonment.1   After careful review, we affirm on the basis of the trial

court’s August 31, 2016 Opinion.

     The underlying facts, as gleaned from the certified record and the trial

court’s 1925(a) Opinion, are as follows.     On March 4, 2010, the general

manager of a U-Haul in Philadelphia (“Complainant”), contacted the

Philadelphia Police Department about a previously stolen company vehicle.

1
 18 Pa.C.S. § 5101; 18 Pa.C.S. § 4904; 18 Pa.C.S. § 4906; 18 Pa.C.S. §
5301; and 18 Pa.C.S. § 2903, respectively.
J. A10006/17


A towing company had returned the stolen vehicle from Delaware County to

the Philadelphia U-Haul, and company protocol required the Complainant to

report this information to police in order to remove the vehicle from the

database of stolen vehicles.2 The Complainant had previously called police

when this had happened and each time the police officers would quickly

resolve the issue.

      When Philadelphia Police Officers Aleksande Shwarz (“Appellant”) and

John Loisch responded to the U-Haul, they informed the complainant—

incorrectly—that they could not help him because the vehicle had been

recovered in another county.     The officers then told the Complainant to

contact Delaware County police instead.

      The Complainant grew frustrated and asked for a supervisor and for

both Appellant and Officer Loisch’s badge numbers so that he could include

this information in a formal complaint.      While Officer Loisch complied,

Appellant refused to provide his badge number. The Complainant obtained

Appellant’s badge number by looking at Appellant’s uniform, and then left

the building to record the patrol car number. Appellant and Officer Loisch

followed the Complainant outside.    While Officer Loisch entered the patrol

car, Appellant stood near the Complainant as he recorded the officers’ patrol




2
 U-Haul could not rent out the vehicle while it was on the stolen vehicle list
because customers would be subject to potential police stops.



                                    -2-
J. A10006/17


car number. Appellant and the Complainant exchanged sarcastic comments,

and an altercation ensued, as follows:

      Complainant then began walking back towards the front door of
      U-Haul when [A]ppellant stated “hey” and reached for
      [C]omplainant’s arm.       While [A]ppellant went to grab
      [C]omplainant, [C]omplainant dropped his right shoulder in a
      ducking motion and stated[,] “don't touch me.” Complainant
      continued to make his way back to the front door of U-Haul while
      [A]ppellant repeatedly stated “hey, hey.” As [C]omplainant
      opened U-Haul’s front door, [A]ppellant took control of
      [C]omplainant by the neck and slammed [C]omplainant against
      the door. Appellant instructed [C]omplainant to get down on his
      stomach and stated that [C]omplainant had “hit a police officer.”
      Complainant complied with [A]ppellant’s request to get down, at
      which time [C]omplainant was taken into police custody.

      Complainant was transported to a police station two (2) miles
      from the U-Haul location and placed in a holding cell. Detective
      Lawrence Grimm of the Philadelphia Police Department
      Northeast Detectives Division (hereinafter “Detective Grimm”)
      subsequently took statements from both [C]omplainant and
      [A]ppellant regarding what had transpired at U-Haul. On the
      basis of the interviews, [C]omplainant was charged with
      [S]imple [A]ssault and [R]ecklessly [E]ndangering [A]nother
      [P]erson. Approximately twenty-two (22) hours after the instant
      incident began, [] [C]omplainant [] was [] released [and police
      dropped all charges.]

Trial Court Opinion, dated 8/31/16, at 4 (footnotes and citations omitted).

      Appellant was then charged with Obstructing Administration of Law or

Other Governmental Function, Unsworn Falsification to Authorities, False

Reports to Law Enforcement Authorities, Official Oppression, and False

Imprisonment. On May 18, 2015, a jury found Appellant guilty of the above-

stated offenses.




                                    -3-
J. A10006/17


      On July 21, 2015, the trial court sentenced Appellant to a term of

time-served to 23 months’ imprisonment with immediate parole. Appellant

timely filed a Post-Sentence Motion, which the trial court denied on

November 16, 2015.

      On November 24, 2015, Appellant filed a Notice of Appeal.             Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our review:

      Did the lower trial court err in refusing to instruct the jury as
      requested by the Appellant that any contact however slight
      between the complainant and the Appellant police officer could
      be sufficient to establish probable cause to arrest the
      complainant for the offense of simple assault?

Appellant’s Brief at 3.

      Our standard of review in assessing a trial court’s jury instruction is as

follows:

      When evaluating the propriety of jury instructions, this Court will
      look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that[] it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014). “The

trial court is not required to give every charge that is requested by the

parties and its refusal to give a requested charge does not require reversal




                                     -4-
J. A10006/17


unless the Appellant was prejudiced by that refusal.”   Commonwealth v.

Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).

      The Honorable Edward C. Wright, sitting as the trial court, has

authored a comprehensive, thorough, and well-reasoned Opinion, citing to

the record and relevant case law in addressing Appellant’s claim. See Trial

Court Opinion, 8/31/16, at 5-9 (concluding it properly rejected Appellant’s

jury instruction because: (1) Appellant requested a jury instruction on

irrelevant civil principles of tort law, which “would have misled the jury

regarding a material issue[;]”3 and (2) the trial court provided additional

instructions on probable cause at Appellant’s request where appropriate,

including supplementing the standard jury instruction defining Official

Oppression).    The record supports the trial court’s conclusions and we

discern no abuse of discretion or inaccurate statement in the jury

instruction.   We affirm on the basis of the trial court’s August 31, 2016

Opinion.

      The parties are instructed to attach a copy of the trial court’s August

31, 2016 Opinion to all future filings.


3
  Appellant strategically decided not to request that the trial court provide
the jury with a definition of Simple Assault using the standard criminal jury
instruction.    That standard criminal jury instruction includes additional
elements regarding criminal intent, which Appellant carefully omitted from
his nonstandard civil instruction that he submitted to the trial court. This
transparent request for a nonstandard instruction shows the underlying
strategic decision, which had little to do with clarifying relevant legal
principles for the jury.



                                      -5-
J. A10006/17


     Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/31/2017




                                 -6-
                                                                                                                      Circulated 05/04/2017 11:41 AM



                                                                                                                                            )'
                                                IN THE COURT OF COMMON PLEAS
                                           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                    CRIMINAL TRIAL DIVISION


                     COMMONWEALTH                                                      SUPERIOR COURT DOCKET NO.

...
                     v.             Ff.LED
      -._ ··~ ------····----------,.---:--.-,--
                                                                                            3563 EDA 2015


                     Aleksande Shwarz                  . AUG- 31 2016                 LOWER COURT DOCKET NO.
                           Appellant               ,Criminal Appeals Unit                 cP-51-cR-0004424-2011
                                                 First Judicial Distrtct of PA
                     Wright, J.
                     August 30, 2016
                                                                          OPINION

                            Aleksande Shwarz (hereinafter "appellant") appeals his criminal convictions subsequent

                     to a jury trial, pursuant to the Pennsylvania Crimes Code (Code), Act of Dec. 6, 1972, P.L. 1482,

                 as amended, 18 Pa. C.S. §§10.1-9402.

                                                          I.     PROCEDURAL HISTORY

                            On May 18, 2015, pursuant to the Code, a jury found appellant guilty of: Section 5101;                               1



                 Section 4904;2 Section 4906;3 Section 5301 ;4 and, Section 2903.5 Sentencing was deferred until


                 1
                Act of Dec. 6, I 972, P.L. 1482, 18 Pa. C.S. §5101, entitled "Qbstructing administration of law or other governmental function,"
              provides:
                        A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the
                        administration of law or other governmental function by force, violence, physical interference or obstacle, breach of
                        official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime,
                        refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding
                        compliance with law without affirmative interference with governmental functions.
              18 Pa. C.S. §5101.
             2
               Act of Dec. 6, 1972, P.L. 1482, as amended, 18 Pa. C.S. §4904, entitled "Unsworn falsification to authorities," provides, in
             pertinent part:
                         (a) In general. -A person commits a misdemeanor of the second degree if, with intent to mislead a public servant in
                       performing his official function, he: ·            .
                         (I) makes any written false statement which he does not believe to be true[.)
             18 Pa:C.S. §4904(a)(l).
             3
               Act of Dec. 6, I 972, P.L. 1482, as amended, 18 Pa. ·C.S. §4906, entitled "False reports to law enforcement authorities,"
             provides, in pertinent part:     -,                             ;
                         (b) Fictitious reports. - Except as provided in subsection (c), a person commits a misdemeanor of the third degree if
                       he:                     ·
                         ( l) reports to law enforcement authorities an offense or other incident within their concern knowing that it did not
                       occur{.)

                                                                               1
         July 21, 2015, pending a Presentence Investigation Report. On July 21, 2015, this court

         sentenced appellant to time served to twenty-three (23) months at a County correctional facility

        with immediate parole.6 On July 24, 2015, appellant timely filed a post-sentence motion seeking

        a new trial, whereupon on November 16, 2015, this court denied said motion. On November 24,

        2Ul 5, ~ppeliant timely'filed the instant appeal with the Superior Court of Pennsylvania

        (hereinafter "Superior Court"), which appeal Superior Court docketed at 3563 EDA 2015.

                                               II.    FACTOAL BACKGROUND

               On March 4, 2010, at approximately 4:00 PM, complainant, a General Manager at U-

        Haul Moving and Storage Center (hereinafter "U-Haul") located at 7750 Roosevelt Boulevard in

        Philadelphia, PA, contacted the Philadelphia Police Department regarding a stolen company

        vehicle. '5/14/2015 Notes of Testimony (N.T.) at 47. The vehicle had been recovered in·Tinicum

     Township, Delaware County, and it was towed back to Ll-Haul by a Delaware County towing

     company. Id. at 48. When the vehicle arrived back at Ll-Haul, complainant called 9-1-1 as

    required by company protocol, to report that although the vehicle had been previously stolen the

    vehicle was now recovered. Id. at 50. Approximately half an hour later, Philadelphia Police




    18 Pa. C.S. §4906(b)(I).

    4
      Act of Dec. 6, 1972, P.L. 1482, 18 Pa. C.S. §5301, entitled "Official oppression," provides, in pertinent part:.
                A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity
              commits a misdemeanor of the second degree if, knowing that his conduct is illegal, he:
                (1) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other
             infringement of'personal or property rights(.]
    18Pa. C.S. §5301(1).
5
  Act of Dec. 6, 1972, P.L. 1482, ss amended, 18 Pa. C.S. §2903, entitled "PaJse imprisonment," provides, in pertinent part:
               (a) Offense Defined. - Except as provided under subsection (b) or (c), a person commits a misdemeanor of the
          second degree if he knowingly- restrains another unlawfully so as to interfere substantially with his liberty.
18 fa. C.S .. §2903(a).                                           ,
6
 Specifically, this court sentenced appellant to time served to twenty-three (23) months on each of the five (5) crimes for which
he tas found guilty; aJJ five (5) sentences were concurrent to each other.                       '


                                                                    2
     Officers appellant, and John Leisch (hereinafter "Officer Leisch") arrived at the U-Haul

     location.   7   Id.

              After parking their marked patrol car outside of the U-Haul entrance, Officer Leisch

     proceeded inside U-Haul and approached the front counter. Id. at 116, 117, 119. Complainant,

     who was with a customer 'at the time, immediately acknowledged Officer Leisch and began.

    speaking with him. Id. at 52. Complainant explained the circumstances regarding the stolen
                                                                                                  '
    vehicle and told Officer Leisch that a police report was necessary to remove the subject vehicle

    from the stolen car list. Id. at 53. Approximately two (2) to three (3) minutes into complainant's
                                                                                                      l
    conversation with Officer Leisch, appellant entered U-Haul and joined complainant and Officer

    Leisch at the front counter. Id. at 52. Officer Leisch stated that he was unable to assist

    complainant, which resulted in complainant's frustration whereupon complainant requested a

    supervisor. Id. at 53. At this point, Officer Leisch instructed complainant to call 9-1-1 for a

    supervisor. Id. Complainant then requested that the officers provide him with their names and

    badge numbers. Id. at 53-54. While Officer Leisch complied with this request, appellant did

    not. Id. at 54. Complainant was however able to obtain appellant's badge number from his

    police uniform. Id. At the conclusion of this interaction with appellant and Officer Leisch,

    complainant decided to exit U-Haul to record the number located on the officers' patrol car

    outside. Id. Upon complainant's exit from U-Haul, Officer Leisch and appellant followed him

outside. Id. at 55.

             Once outside U-Haul, Officer Leisch approached the passenger side of the patrol car and
         I                           ~
began to get into the patrol car. Id. At this time, complainant went to the rear of the patrol car to

record the license plate number, Id. As this was taking place, appellant sto~d on a loading dock
         t                           ,I                                                   J
         t                           ~                                                    <.

7
                                .                                           '

 At the time of the instant matter, appellant had been employed as a Philadelphia Police Officer for approximately
twenty~two (22) years; appellant    wasdischarged in January 2011. Id. at 151-52.
                                                               '
                                                                                    1
                                                                                          .
                                                                                          I


                                                         3
  located immediately beside the patrol car and stated "I hope you get the numbers clearly." Id.

  Complainant sarcastically responded, "Thanks-for all your help." Id. at 56. Complainant then

 began walking back towards the front door of U-Haul when appellant stated "hey" and reached

 for complainant's arm. Id. at 57. While appellant went to grab complainant, complainant

 dropped his right shoulder in a ducking motion and stated "don't touch me." Id. Complainant

 continued to make his way back to the front door ofU-Haul while appellant repeatedly stated
                                       .                                               .
 "hey, hey." Id. at 58. As complainant opened U-Haul's front door, appellant took control of

 complainant by the neck and slammed complainant against the door. Id. at 59. Appellant

 instructed complainant to get down on 'his stomach and stated rhat complainant had "hit a police

 officer." Id. Complainant complied with appellant's request to get down, at which time

complainant was taken into police custody. Id. at 60.

        Complainant was transported to a police station two (2) miles from the U-Haul location

and placed in a holding cell. Id. at 63-64. Detective Lawrence Grimm of the Philadelphia Police

Department Northeast Detectives Division (hereinafter "Detective Grimm") subsequently took

statements from both complainant and appellant regarding what had transpired at U-Haul.

5/15/15 N.T. at 19, 25. On the basis of the interviews, complainant was charged with simple

assault and recklessly endangering.another person. Id. at 31. Approximately twenty-two (22)

hours after the instant incident began, a turnkey notified complainant that the charges against

him would be dropped, and that he was being released. 5/14/15 N.T. at 68.




                                                                                I

                                                                                t


                                                4
                                                            III.       ISSUES

                     Appellant raises the following issue on appeal:

                     1. The trial court erred by refusing to instruct the jury that the Defendant police officer
                        could properly arrest the complainant upon any adverse contact with the officer,
                        however slight.
-~·~~_,.,,..~-:---,.,.~.,...,...,~-,..-:<-~~....,,,...~~.,..--:-,-..,,...,..,..-~~~-:----;-:::-::c-~-:-:::~~~~~~~~-
             See Appellant's March 8, 2ors, Statement of Matters Complained Of pp. l-2.


                                                     IV.       DISCUSSION

             A.     Refusal of Jury Instruction

                    Appellant avers that this court erred by refusing to instruct the jury that appellant police
                                                        .
                                                        I
                                                                                    .
             officer could properly arrest complainant up?n any adverse contact with the officer, howev~r

            slight. Id.

                    When reviewing a challenge to the trial court's refusal to give a specific jury instruction

            the Superior Court has set forth the following:

                    [I]t is the function of this (C]ourt to determine whether the record supports the trial
                    court's decision.· In examining the propriety of the instructions a trial court presents to a
                   jury, our scope of review is to determine whether the trial court committed a clear abuse
                   of discretion or an error of law which controlled the outcome of the case. A jury charge
                   will be deemed erroneous only.if the charge as a whole is inadequate, not clear or has a
                   tendency to mislead or confuse, rather than clarify, a material issue. A charge is
                   considered adequate unless the jury was palpably misled by what the trial judge said or
                   there is an omission which is tantamount to fundamental error. Consequently, the trial
                   court has wide discretion in fashioning jury instructions. The trial court is not required to
                   give every charge that is requested by the parties and its refusal to give a requested
                   charge does not require reversal unless the Appellant was prejudiced by that refusal.

           Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (citations omitted). Moreover,

           "[t]he key inquiry is whether the instruction on a particular issue adequately, accurately and

           clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations."
                          <                     I                               ~                 )

           Commonwe~th v. Sneeringer, 668:,A.2d ,1167, 1171 (Pa. ~uper. 1995), appeal deriied, 5.45 Pa.

           651 (1996). Finally, the Superior C?urt has explicitly state? that "[i]n reviewing jury

                                                                   5
               instructions to determine whether reversible error has been committed by a trial court, we

               consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the

               general effect of the charge that controls." Commonwealth v. Shoup, 620 A.2d 15, 22 (Pa.

               Super. 1993) (citations omitted).
-··-·-··-·------..,...,..-.....---,..-----------------------------
                On May 18, 2015, this court held a charging conference during which appellant and the

               Commonwealth were given an opportunity to present suggested jury instructions. 5/18/15 N.T at

              4. At this time, appellant requested that an instruction regarding probable cause be provided to

              the jury. Specifically, appellant sought an instruction which stated that "intentional contact by

              the complainant upon the police officer, however slight, would support probable cause if it was

              intentional." Id. at 29. After hearing the respective positions of appellant and the
                                                                   .                            .
              Commonwealth, this court ruled that appellant's instruction would not be provided to the               jury.
              Id. at 31. However, this court permitted :further instruction on probable cause to be added to

              section 15.5301 of the Pennsylvania Suggested Standard Jury Instructions, entitled "Official

              Oppression." Id. at 27. The first addition was "an arrest by defendant would be lawful if

              supported by probable cause," while the second addition was a definition of probable cause

              provided by appellant:

                     Probable cause exists when the facts and circwnstances which are within the knowledge
                     of the police officer at the time of arrest, and of which he has reasonably trustworthy
                     information, are sufficient to warrant a man of reasonable caution in the belief that the
                     suspect has committed or is committing a crime.

          Id. at 31.8

                    In support of appellant's position, he directs this court to his October 29, 2015,
                                                            '                               .
          Memorandum of Law (hereinafter "Memorandwn"), which was submitted with appellant's post-


          8
                                .                                                       '
          The definition of probable cause herein was provided by appellant at trial in a document entitled "Defendant's
         Points for Charge."


                                                                  6
              sentence motion for a new trial. In the Memorandum, appellant asserts the following: "As stated

              in, the leading case of Cohen v. Lit Brothers, 70 A.2d 419, 421 (Pa. 1950), an assault occurs

              when the perpetrator engaged in an intentional attempt to do an injury to the person of another,

             even though the force used upon the victim is done 'in ever so small a degree."' See
- ..---· ..·--------,..---,,---,.,..--,----,---~..,..,...,.-------------------------
                Memorandum of Law, attached as Exhibit A, p. l.

                      Appellant's reliance on Cohen is a misapplication of law for two (2) key reasons. First,

             Cohen is a civil cause of action in which the parents of a minor sought to recover damages for

             assault, battery· and false imprisonment. Cohen at 420. This is significant as appellant has drawn

             :i,ipon standards from a civil cause of action and is attempting to apply these standards to a

             criminal proceeding. The Restatement Second of Torts§ 21 entitled "Assault," defines civil

            assault: "(I) An actor is 'subject to liability to another for assault if ( a) he acts intending to cause

            a harmful or offensive contact with the person of the other or a third person, or an imminent

            apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension."

            Restatement (Second) of Torts§ 21 (1965). Contrastingly for criminal matters, Section 2701 of

            the Code entitled "Simple Assault," defines criminal assault: "(a) a person is guilty of assault if

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

            Act of Dec. 6, 1972, P.L. 1482, as amended, 18 Pa. C.S. §2701(3).9 By comparing the definition

            of assault in a civil cause of action to the definition of criminal simple assault, it is evident that

        assault defined in the civil realm varies considerably from its definition in criminal law.

        Therefore, appellant's attempt to furnish the jury with an instruction rooted in civil law tenets is

       . misguided.

                                                                                        •
                                                                                        t


        9
                                . .                         J
                                                            •                           •
                                                                                        '
                                                                                                                   •
                                                                                                                   •
            This court notes µtat while the charges of simple ass~ult and recklessly endangering another person were initially
        recommended, the Philadelphia District Attorney's Office ultimately declined to pursue said charges. 5/15/2015
        (N.T) at 31; 5(14/2015 (N.T.) at 68.                                        .                           .

                                                                    7
          Second, even if utilization of the definition of civil assault was deemed to be acceptable,

  appellant has inaccurately quoted from the very case that he cites. The pertinent section of

  Cohen states "[ajssault is an intentional attempt by force to do an injury to the person of another,

  and a battery is committed whenever the violence menaced in an assault is actually done, though

  in ever so small a degree, upon the person" (emphasis added). Cohen at 421. This court's

 review of appellant's argument grounded in Cohen, reveals that appellant has engaged in a

 misstatement of law. Specifically, appellant has erroneously combined the principles regarding

 civil assault and battery provided iri Cohen to form the crux of his averment. The specific "civil"

 language that appellant sought to include in his proposed criminal jury instruction is not relevant:

         The Superior Court has held that "[t]he key inquiry is whether the instruction on a

 particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to

 guide the jury in its deliberations." Sneeringer at 1171. Moreover, "[a] jury charge will be

 deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to

mislead or confuse, rather than clarify, a material issue." Thomas at 964. As established above,

the inclusion of appellant's suggested jury instruction grounded in civil law would not have

reflected an accurate and clear presentation of the relevant law to the jury. As such, utilization of

appellants proposed instruction would have misled the jury regarding a material issue. By

choosing to exclude appellant's requested instruction grounded in civil law, this court ensured

that the charge provided would not be erroneous. Moreover, appellant's instruction on probable

cause that this court permitted, provided the jury with the necessary information needed to guide
                       t
their deliberations.




                                                  8
                   This court duly exercised the wide discretion that is vested in the trial court when

            fashioning jury instructions. Appellant's contention that this court erred in refusing to instruct

            the jury as per appellant's request is thus without merit.

--   _ _.
                                                   V.    CONCLUSION
                                                                                                                    _
                   In light of the foregoing, this Court's decision should be affirmed.




                                                                  BY TI:IE COURT:




                                                                   .
                                                                  EDW                                     J.




                                                                                                               '
                                                                                                               i'



                                                             9
