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Commonwealth v. Lopes1/22/2004
the level of force he used on his victim and the circumstances that prompted those actions." Commonwealth v. Pike, 428 Mass. 393, 395 (1998). While the right to use deadly force arises only when the defendant reasonably and actually believes that he is in "imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force," Commonwealth v. Harrington, 379 Mass. 446, 450 (1980), the use of non-deadly force is justified at a lower level of danger, in circumstances giving rise to a "reasonable concern over his personal safety." Commonwealth v. Baseler, 419 Mass. 500, 502-503 (1995). The use of one's fists is considered to be non-deadly force, even if a death results. See Commonwealth v. Noble, 429 Mass. 44, 46 (1999). The defendant claims that the judge's explanation of self-defense solely in terms of the use of deadly force, undermined a substantial part of his claim of self-defense, because it removed from the jurors' consideration the issue whether he had punched the victim in response to a reasonable fear for his safety.
A defendant is entitled to an instruction on the use of non-deadly force if any view of the evidence, regardless of the credibility, and resolving all reasonable inferences in favor of the defendant, would support a finding that non-deadly force was, in fact, used in self-defense. See Commonwealth v. Pike, supra. Here, the Commonwealth, through forensic evidence and testimony of the medical examiner, presented evidence that left no reasonable doubt that the victim died as a result of asphyxiation by ligature strangulation. The defendant presented no evidence to the contrary. Indeed, although he stated to police that he killed the victim by punching him in the neck, he subsequently appeared to concede that strangulation was the actual cause of death when he suggested to police that someone else may have entered the motel room after he had left. Significantly, even the defendant agreed that the latter was unlikely. We conclude that no view of the evidence would support a reasonable inference that the victim had died as a result of a punch to the neck. The jury were properly instructed on the issue of self-defense.
3. We have examined the record pursuant to our obligation under G. L. c. 278, § 33E. There is no basis to grant the defendant relief.
Judgment affirmed.
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