Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1966, No. 4897, in case of Commonwealth v. D. L. Stots.
Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.
Richard Max Bockol and James D. Crawford, Assistant District Attorneys, 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 Jones. Mr. Justice Roberts concurs in the result on the ground that the competency of the witness, not having been objected to at trial, cannot now be raised.
On March 27, 1966, Mary Walker was fatally stabbed while in the apartment of D. L. Stots, the defendant, and Martha Stots. Defendant was arrested at the apartment immediately after the incident, was tried and found guilty of voluntary manslaughter before Judge Reed, sitting without a jury, and, on February 8, 1968, was sentenced to serve four to twelve years.
Motions for a new trial and in arrest of judgment were made but not argued. On appellant's previous appeal to this Court, the case was remanded for argument of the post-trial motions. On March 27, 1969, these motions were argued and denied by the court below. This appeal followed.
The first point argued by defendant is that Martha Stots, allegedly the defendant's common-law wife, should not have been permitted to testify against him at trial,*fn1 because of the statutory incompetence of one spouse to testify against the other. With certain exceptions not pertinent to this case, the Act of May 23, 1887, P. L. 158, § 2(b), as amended, 19 P.S. § 683, provides as follows: "Nor shall husband and wife be competent or permitted to testify against each other . . . ." See: Commonwealth v. Wilkes, 414 Pa. 246, 251, 199 A.2d 411, 413, cert. denied, 379 U.S. 939 (1964). The Commonwealth has pointed out that no objection was made to Martha's testimony at trial, or at any time prior to the instant appeal.
Generally, the question of the competency of a witness to testify at trial must be raised at the trial, or it will be considered to have been waived and therefore not subject to review on appeal. Beeruk Estate, 429 Pa. 415, 417 (n.1), 241 A.2d 755, 757 (1968); Capozzi v. Antonoplos, 414 Pa. 565, 569, 201 A.2d 420, 422 (1964); Finnerty v. Darby, 391 Pa. 300, 312-13, 138 A.2d 117, 123 (1958). This is in accordance with the general rule that, except for basic and fundamental error which affects the merits or justice of the case, an appellate court will not consider matters which were not raised in the court below. Commonwealth v. Scoleri, 432 Pa. 571, 579, 248 A.2d 295, 298-99 (1968); Commonwealth v. Williams, 432 Pa. 557, 563-64, 248 A.2d 301, 304-05 (1968).
Although it was not referred to by either party in the case at bar, we note the following statement from Ulrich's Case, 267 Pa. 233, 238, 109 A. 922, 923 (1920), wherein this Court held that a spouse's incompetency
could not be waived by failure to object at trial. "While there was no objection to the competency of the wife, the prohibition in section 5(c) of the Act of May 23, 1887, P. L. 158, is not only that husband and wife shall not be permitted to testify against each other. It has been said this provision is one 'of which both the parties to the suit, and the trial judges as well, are bound to take notice. Connivance by the parties cannot evade it, nor can indulgence by the court': Canole v. Allen, 222 Pa. ...