J-S06009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TERRENCE W. CLARKE

                            Appellant                    No. 78 MDA 2015


           Appeal from the Judgment of Sentence December 22, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001020-2014


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                              FILED MARCH 07, 2016

        Appellant, Terrence W. Clarke, appeals from the judgment of sentence

entered December 22, 2014, in the Court of Common Pleas of Luzerne

County, following Clarke’s conviction of persons not to possess a firearm.1

Clarke argues on appeal that the trial court erred in refusing to issue a jury

instruction on the defense of justification. No relief is due.

         At trial, Clarke testified that he arrived at Shaker’s Bar on February 1,

2014, between 10:30 p.m. and 11:00 p.m. See N.T., Jury Trial, 10/27/14-

10/29/14 at 167-168. When Clarke exited the bar with friends at 2:00 a.m.,

he observed an “all-out fight” break out among a group of bar patrons. Id.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6105(a).
J-S06009-16



at 169. Clarke maintained that he was caught in the middle of the

altercation when he noticed a gun fall to the floor. See id. Although Clarke

acknowledged that he was prohibited from possessing a firearm as a

condition of his probation, he testified that he picked up the firearm because

he “didn’t want anything to happen to me.” Id. at 169-170. Clarke stated

that as he attempted to walk away from the fight, he heard shots fired in his

direction. See id. at 170. Although Clarke admitted that he was not

physically involved in the altercation, he stated that he fired the weapon

back in the direction of the fight in order to “protect” himself. Id. at 170-

171.

       Pennsylvania State Troopers Nicholas Bressler and Matthew Hunter

were on patrol near the Shaker Bar that evening when they heard shots

fired. See id. at 96. As the Troopers pulled up to the entrance to the Shaker

Bar and exited their vehicle, Trooper Bressler observed Clarke emerge from

the bar and turn to discharge his firearm toward the crowd. See id. at 96-

97. Although Clarke ignored the Troopers’ repeated demands to drop the

firearm and stand down, the Troopers apprehended Clarke after a brief

chase. See id. at 98-107. The Troopers recovered the firearm nearby on the

ground. See id. at 110-111.

       Clarke was subsequently charged with criminal homicide, two counts

of aggravated assault, and persons not to possess firearms. Prior to trial, the

Commonwealth filed a motion to sever the possessory firearm charge, which

the trial court granted with defense agreement. A jury trial commenced. At

                                     -2-
J-S06009-16



the close of evidence, defense counsel requested the trial court issue a

justification instruction to the jury pursuant to 18 Pa.C.S.A. § 503(a). The

trial court denied the request. The jury ultimately rendered a guilty verdict.

The trial court sentenced Clark to 48 months to 96 months incarceration.

This timely appeal followed.

      Clarke argues on appeal that the trial court erred in denying his

request to instruct the jury on the defense of justification.

      The law is well settled that a trial court is not obligated 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. However, 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. Bohonyi, 900 A.2d 877, 883 (Pa. Super. 2006)

(emphasis in original).

      The defense of justification is set forth by statute as follows.

      § 503. Justification generally

      (a) General rule. -- Conduct which the actor believes to be
      necessary to avoid a harm or evil to himself or to another is
      justifiable if:

      (1) the harm or evil sought to be avoided by such conduct is
      greater than that sought to be prevented by the law defining the
      offense charged;

      (2) neither this title nor other law defining the offense provides
      exceptions or defenses dealing with the specific situation
      involved; and




                                      -3-
J-S06009-16


      (3) a legislative purpose to exclude the justification claimed does
      not otherwise plainly appear.

18 Pa.C.S.A. § 503(a).

      In denying Clarke’s request to issue an instruction on the defense of

justification, the trial court determined that “any harm as perceived by the

Defendant is speculative or debatable and not clear and [imminent].” N.T.,

Jury Trial, 10/27/14-10/29/14 at 186. We agree.

      In order to be entitled to an instruction on justification by
      necessity as a defense to a crime charged, Appellant must offer
      evidence to show:

      (1) that (he) was faced with a clear and imminent harm, not one
      which is debatable or speculative;

      (2) that (he) could reasonably expect that (his) actions would be
      effective in avoiding this greater harm;

      (3) that there is no legal alternative which will be effective in
      abating the harm; and

      (4) that the Legislature has not acted to preclude the defense by
      a clear and deliberate choice regarding the values at issue.

Commonwealth v. Billings, 793 A.2d 914, 916 (Pa. Super. 2002) (citation

omitted).

       Upon review, we find that Clarke failed to meet the above

requirements. Although Clarke maintained that he picked up and fired the

firearm out of fear for his safety, there is no testimony that Clarke was

physically involved in the bar fight or otherwise targeted in any way.

Despite Clarke’s assertion that he believed the gun shots were aimed in his

direction, there is no description or identification of an individual shooting

directly at Clarke. Further, aside from this vague allusion to gunshots, Clarke

                                      -4-
J-S06009-16


does not allege or state with particularity a direct and personal threat to his

safety that would justify his possession of the firearm. Certainly, Clarke had

other legal alternatives available to him in abating the harm, such as merely

continuing a speedy retreat from the scene of the altercation or contacting

the authorities for assistance.


      Accordingly, based upon our review of the evidence adduced at trial,

we find the trial court did not err in refusing to issue the justification

instruction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016




                                     -5-
