Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1967, No. 1369, in case of Commonwealth v. Inez James.
A. Benjamin Johnson, Jr., for appellant.
Edward G. Rendell, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen dissents. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Cohen joins in this dissenting opinion.
Appellant and decedent emerged from a bar and engaged in an altercation during which the deceased was fatally stabbed by appellant. Appellant claimed self-defense. The jury found her not guilty of murder but guilty of voluntary manslaughter and appellant took this appeal.
Appellant contended at trial that she stabbed the deceased only after he had beaten her. In attempting to establish his assaultive tendencies, she testified that on two prior occasions the deceased had attacked and beaten her. On cross-examination, the Commonwealth asked appellant whether she had stabbed the deceased three weeks before his death. Appellant's objection was overruled, and she now claims that the question violated the Act of March 15, 1911, P. L. 20, § 1, 19 P.S. 711, which forbids asking a criminal defendant "any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation," unless he first puts his own character or reputation in issue. See, e.g., Commonwealth v. Smith, 432 Pa. 517, 248 A.2d 24 (1968).
Even assuming arguendo that appellant is correct in contending that the Act of 1911 bars asking a question about a prior act for which there has been no arrest or conviction, this case still falls without the act's coverage. The Act of 1911 "was intended merely to prevent blackening a defendant's reputation or attempting to prove a disposition to commit crime, but if there is another legitimate purpose . . . the Act of 1911 does not prohibit the Commonwealth from such interrogation . . . ." Commonwealth v. Heller, 369 Pa. 457, 463, 87 A.2d 287, 289-90 (1952). In the Heller case, the questioning was used not merely to impeach defendant's credibility but to establish motive, a substantive element of the Commonwealth's case. The same is true here, where the Commonwealth was attempting to prove by past behavior who was more likely to have been the aggressor, a crucial inquiry where appellant is claiming self-defense.
In attempting to establish self-defense, appellant herself put in issue the past relationship of the parties.
Her aim, of course, was to establish that she had acted reasonably in protecting herself. Thus had decedent inflicted beatings on appellant in the past, she might have been justified in using deadly force to protect herself in the present case. The Commonwealth's inquiry was merely an attempt to rebut part of appellant's substantive case by establishing that she, not decedent, had been the aggressor in the past. The Act of 1911 was not intended to prevent the Commonwealth from rebutting or disproving part of the substantive defense which appellant had already tried to advance.
Appellant next contends that it was error for the court below to allow a pathologist to read into evidence the report of a toxicologist which indicated that the deceased was intoxicated at the time of his death. Appellant claims that this was hearsay and not within the Business Records Act, Act of May 4, 1939, P. L. 42, 28 P.S. § 91a, and in any event, that it violated the confrontation clause of the sixth amendment. We need not decide these questions, however, since we can find no way in which appellant possibly could have been prejudiced by the admission of the toxicologist's report. It is hard to see for exactly what purpose the Commonwealth introduced this ...