Commonwealth v. Smith

OLSZEWSKI, Judge,

concurring and dissenting:

I concur with the majority. As noted, the Commonwealth can negate a self-defense claim by proving defendant used greater force than was reasonably necessary to protect against death or serious bodily injury. See Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781, 784 (1981). The evidence in this case is sufficient to support the finding appellant used unreasonable force, rendering the claim of self-defense unavailable. Therefore, I believe it is unnecessary to extend the Fowlin doctrine to this situation at this time. Accordingly, while I join in the majority’s disposition, I do not join in its application of Commonwealth v. Fowlin, 450 Pa.Super. 489, 676 A.2d 665, alloc, granted, 546 Pa. 676, 686 A2d 1308 (1996).