Appeal from judgment of sentence of Court of Common Pleas of Delaware County, March T., 1969, No. 514, in case of Commonwealth v. Theodore Jennings.
Harry F. Dunn, Jr., for appellant.
Anna Iwachiw Vadino, Assistant District Attorney, with her Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the decision of this case. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this concurring opinion. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Eagen joins in this dissenting opinion.
Appellant, Theodore Jennings, was indicted for the murder of Mary Fryer in the City of Chester, Pennsylvania, on November 28, 1968. He was convicted of murder in the second degree and was sentenced to a term of from six to fifteen years and to pay a fine of $1,000. From the Judgment of Sentence, defendant took this appeal.
Appellant and the deceased had lived together for eleven or twelve years prior to September, 1968, when they separated. Four children were born to them during this period. About six months prior to her death, appellant wrote a letter to the deceased in which he stated that he had purchased a gun to kill her but would not do so because he was still in love with her. Additionally, appellant had threatened and physically beaten the deceased on numerous occasions and was arrested at least four times as the result of these beatings.
The Commonwealth's evidence showed that on November 27, 1968, the night preceding the killing, Mary Fryer left her home and was seen driving away with appellant in appellant's automobile. The automobile was "zigzagging" as it left the deceased's home.
Appellant's testimony can be summarized as follows: Appellant denied seeing the deceased on the evening
of November 27. Some time after midnight, in the early morning hours of November 28, 1968, Mary Fryer came to appellant's residence at 1800 West Second Street. The two shared a bottle of gin and engaged in sexual intercourse. After the deceased got out of bed and began to dress, she told appellant that she was pregnant but did not want to have the baby. She also stated that she was dying from cirrhosis of the liver and that before she died she was "going to kill you [appellant]." Appellant, upon hearing a clicking sound, turned around and saw deceased standing there pointing at him the pistol which he kept in a drawer under his bed. When she refused to respond to his pleas to drop the gun, he fell out of the bed onto the floor, and when she again said that she was going to kill him, he reached up to push the gun away from her. In the ensuing struggle the gun discharged and she fell to the floor, bleeding profusely. He put on his trousers and then picked her up and laid her on the bed. He then ran to the nearest telephone, which was two blocks down the street, to contact the police. After he had phoned the police, he ran back to his home, and after looking at the deceased, went outside to await the police.
Officers Sudler and Owens, of the Chester Police Department, arrived at appellant's residence at approximately four-thirty in the morning. Both appellant and Sudler agreed that upon their arrival appellant stated, "We struggled for the gun and it went off." After Sudler had testified that appellant told him that "he had shot her" while pointing to the left side of her neck, appellant testified that one of the officers asked him where deceased was shot and that he pointed at her and said, "She is shot there."
Appellant first contends that the Court below committed reversible error in its ...