The opinion of the court was delivered by: LORD, III
The relatrix was indicted for the murder of her husband as of Court of Oyer and Terminer, Philadelphia County, August Sessions, 1961, No. 528. Following trial to a jury, she was found guilty of murder in the first degree and sentenced to life imprisonment. An attempted direct appeal was quashed as untimely filed. Commonwealth v. Simon, 413 Pa. 609, 198 A.2d 583 (1964). In 1968, relatrix was granted leave to file a direct appeal nunc pro tunc and the judgment of sentence was affirmed by an equally divided court. Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968).
Thereafter, relatrix applied for relief under the Pennsylvania PCHA,
alleging suppression of evidence and ineffective assistance of counsel. Relief was denied on May 4, 1970. An appeal was taken to the Supreme Court of Pennsylvania, but on petition of relatrix and with the consent of the Commonwealth, the matter was remanded for a supplementary evidentiary hearing on the issue of an alleged conflict of interest between trial counsel and relator. After three days of hearings, the hearing judge, on February 24, 1971, denied relief. On appeal, the Supreme Court affirmed without reaching the merits of the claim. The court concluded sua sponte that relatrix had waived the conflict of interest claim by failing to raise it in her 1968 direct appeal. Commonwealth v. Simon, 446 Pa. 215, 285 A.2d 861 (1971). The Chief Justice and Mr. Justice Pomeroy dissented. Reargument was refused on February 1, 1972. The present petition followed.
The following facts are taken from the state trial transcript (referred to as "N.T."), two state PCHA hearings and two hearings before this court.
On the afternoon of May 7, 1961, relatrix admittedly stabbed her husband to death, a fact which she has never denied. The circumstances surrounding the actual killing are understandably somewhat muddy and the defense of the relatrix was ambivalent. Her testimony on direct examination first tended to present an accidental killing. At her trial, she testified (N.T. 182):
"* * * And when I got up he struck me across my head with the stick and across my shoulders and --
"Q Which shoulder was that?
"A My right shoulder, the right shoulder. And he struck me across my head. And so then, after that, when he grabbed me again, I grabbed for the pillow, and I reached my hand under there, and there was the knife. And when he grabbed me by my hair and we were struggling for the knife I must have -- I don't know. It hit his chest. I thought it probably went in the mattress, and I got panicky and I ran down the steps. * * *"
However, this claim was rather effectively destroyed on cross-examination (N.T. 271-272):
"Q And with you on top, your bodies about alongside of each other, not knowing which hand the knife was in, you just lunged it down at him; is that right? Is that right?
"Q That is what you are telling this jury, you came down. An overhand motion; is that right?
"Q With you on top of him? Is that what you are telling this jury?
The other defense advanced by relatrix was that the killing was done in self-defense. She testified (N.T. 195):
"Q But you were in fear of him?
"A Yes, I was in fear with him.
"Q Were you in fear of your life with him?
"Q Or that he might give you grievous bodily harm or kill you, or something?
"Q And was that the state of mind you were in when this incident occurred on May the 7th?
However, relatrix offered no testimony to show that she believed it was necessary to kill in order to save herself or that she made any attempt to retreat to avoid the danger. Finally, although there was testimony that relatrix had been abused by her husband, her testimony also showed that she herself was guilty of hostile and provocative conduct.
"(1) The slayer must have been free from fault in provoking or continuing the difficulty which resulted in the killing * * *. (2) The slayer must have reasonably believed that he was in imminent danger of death, great bodily harm, or some felony, and that there ...