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decided: September 19, 1973.


Appeal from judgment of Court of Common Pleas of Mercer County, Sept. T., 1970, No. 18, in case of Commonwealth of Pennsylvania v. J. B. Moore.


Carl M. Moses, Assistant Public Defender, with him Warren R. Keck, III, Public Defender, for appellant.

Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy.

Author: Eagen

[ 453 Pa. Page 303]

On December 10, 1970, the appellant, J. B. Moore, was convicted by a jury in Mercer County of voluntary

[ 453 Pa. Page 304]

    manslaughter. Post-trial motions were denied, and on June 29, 1972, Moore was sentenced to serve a term of imprisonment of not less than one and one-half and not more than three years in a state correctional institution. He was given credit for two hundred and nineteen days already served in the county jail. This appeal was then filed.

The prosecution followed the fatal shooting of one Ben Jones, in the living room of Moore's home.*fn1 Moore appeared intoxicated at the time*fn2 and no motive for the shooting was evident.

At the time of the occurrence, Moore's wife and Ernestine Kitt were in the kitchen of the house and did not witness the shooting. However, according to the trial testimony of Miss Kitt, who was called as a Commonwealth witness, both women rushed into the living room after hearing the shot and Mrs. Moore asked her husband, "why did you shoot Ben?" to which Moore replied "because he shot me."*fn3

Testifying on his own behalf, Moore stated the gun discharged accidentally when Robert Pritchett who was also in the living room at the time "grabbed the gun." He also said he did not realize Jones was shot until some time later.

Mrs. Moore was not called as a witness by either side, and in his summation the district attorney was permitted, over objection, to argue to the jury that Moore's failure to call his wife as a witness permitted the jury to draw the inference her testimony would be

[ 453 Pa. Page 305]

    unfavorable to his defense. In his charge the trial judge also instructed the jury such an inference was permissible.

Generally, when a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person's testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. See McCormick, Law of Evidence, 534 (1954). See also Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972), and Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971). Accepting Mrs. Moore possessed information material to the issue instantly, the question remains, should this inference be permitted in a criminal case where the uncalled witness is the spouse of the defendant. We rule it should not.

In Pennsylvania a husband and wife are incompetent to testify against each other in a criminal trial except under certain limited circumstances, not relevant here. Act of May 23, 1887, P.L. 158, § 2(b), as amended, 19 P.S. § 683.*fn4 Under the facts of the instant case,

[ 453 Pa. Page 306]

    the operation of the evidentiary inference comes directly into conflict with the common law and the Pennsylvania statutory rule on incompetency of spouses. As far as we have been able to ascertain the last time this Court considered this question was in Commonwealth v. Weber, 167 Pa. 153, 31 A. 481 (1895),*fn5 and the Court therein ruled it was proper for the counsel for the Commonwealth to argue to the jury it might infer that if called the wife's testimony would be adverse to her husband. We have reconsidered the question, and now rule it was improper for the district attorney and the trial judge to advise the jury it could draw an adverse inference from the defendant's failure to call his wife as a witness, thus, we overrule Weber. In so doing, we recognize there is a split of authority on this

[ 453 Pa. Page 307]

    question,*fn6 and a body of law which reaches a contrary conclusion to that reached herein; however, we view the rationale adopted today as the approach most consistent with the statutory law.

Our reason for so holding finds its genesis in the aforementioned statute. It is clear the purpose of the statute is to bar, either husband or wife, from testifying against the other, and this is a rule which is not waivable by the parties.*fn7 If the inference is allowed to operate, the whole purpose and effect of the statute would be negated. The statute by its very terms stops either spouse from adversely affecting a criminal case against the other; although it does allow a spouse to testify on behalf of the other. If the inference is allowed to operate, the very fact the spouse is not called adversely affects the other spouse. Thus, the protection which the legislature vested in the defendant-spouse would be completely eroded by the evidentiary inference. To hold otherwise, would be to give the spouse protection with one hand, and, at the same time take that protection away with the other.

Because of the foregoing ruling, we deem it unnecessary to reach the merit of the other asserted assignment of error.

[ 453 Pa. Page 308]

Judgment reversed and a new trial is ordered.


Judgment reversed and new trial ordered.

Dissenting Opinion by Mr. Justice Pomeroy:

I disagree that the Court erred in allowing the inference here complained of, but if there was error, it was patently harmless. I therefore respectfully dissent. These points will be discussed in reverse order.


It will be useful to summarize the evidence in a bit more detail than does the Court. The homicide occurred in the living room of the home of the defendant-appellant, J. B. Moore. There were two Commonwealth witnesses. The first, a Robert Pritchett, testified that he accompanied his girl friend, Ernestine Kitt, to the Moore home where Miss Kitt had a hairdressing appointment with Mrs. J. B. Moore. He said that upon their arrival, Mrs. Moore began to arrange Miss Kitt's hair, working next to the stove in the kitchen, and that he, Pritchett, seated himself at the kitchen table just inside the doorway leading from the living room. A short time thereafter, Pritchett continued, a Benjamin Jones, the deceased, knocked at the front door, was admitted by Mrs. Moore, followed her back to the kitchen, greeted those present ("how is everyone doing?"), returned to the living room and took a seat. Pritchett then related that J. B. Moore, the defendant, apparently intoxicated, then entered the front door of his house, advanced towards Jones, raised a pistol, and shot Jones in the chest from a distance of one to two feet. Moore then walked toward Pritchett and mumbled, "What are you doing here?" As Moore walked on past Pritchett, Pritchett noticed that Moore's left hand was bleeding.

[ 453 Pa. Page 309]

Pritchett, seizing the opportunity, grabbed the pistol and disarmed him.

Miss Kitt's testimony corroborated Pritchett's in all respects through the arrival of Jones. Not having had a view of the living room, she testified that she heard someone enter at the front, then heard a shot, ran into the living room with Mrs. Moore, passing Moore in the process, and discovered Jones, lying on the floor fatally wounded. She further related that Mrs. Moore asked her husband, "Why did you shoot Ben?", and he replied, "Because he shot me." Both Pritchett and Miss Kitt, however, heard only one shot. Defense counsel did not succeed on cross-examination in developing any line of impeachment of these two witnesses.

The defendant then testified. He said that he had taken the pistol from his car outside and intended to place it in the pocket of a coat hanging in the kitchen. While in the act of so doing, he related, Pritchett grabbed at the pistol, frightening Moore and causing him to jerk. The gun discharged, wounding Moore in the left hand. The defendant further testified that he was unaware at the time that Jones had been shot.

Mrs. Moore did not testify and was called by neither the Commonwealth nor the defendant. The Court, in its charge to the jury, gave an instruction which permitted the jury to infer, should they so desire, that had the defendant called his wife as a witness. her testimony would have been unfavorable to him.

It is clear that the jury rejected the defendant's account and accepted instead the account of the eyewitness Pritchett and of Ernestine Kitt. That account placed the defendant's wife in the kitchen at the time of the shooting and made her a witness to the same extent as was Miss Kitt. From the record it is manifest beyond doubt that it was the testimony of Pritchett and his girl friend that persuaded the jury that Moore

[ 453 Pa. Page 310]

    was a murderer; that being the case, then the jury had direct evidence of exactly what Mrs. Moore saw and did, and thus that she could not substantiate Moore's account of an accidental killing. I can only conclude, accordingly, that the instruction on a permissible adverse inference to be drawn from the failure of Moore to call his wife, when measured against the testimony of Pritchett and Miss Kitt, had nothing to do with this conviction. If allowance of the inference was error, as the Court holds, it was harmless by any standard.*fn1


The Court's overruling of the decisions in Commonwealth v. Weber, 167 Pa. 153, 31 A. 481 (1895) and in Commonwealth ex rel. Haines v. Banmiller, 398 Pa. 7, 157 A.2d 167 (1959),*fn2 is, I venture to say, an example of dubious law made worse. This problem of witness competency which on the surface seems quite simple nevertheless has a rather involved background which must be delineated if the matter is to be understood.

I begin with a definition of terms. A witness is "incompetent" or "disqualified" when his testimony is thought to have no probative value in establishing or refuting the issue at hand.*fn3 It was the common law

[ 453 Pa. Page 311]

    rule that a wife was incompetent or disqualified to testify for her husband.*fn4 Although there have been various arguments advanced to support this rule, the conclusion reached in each was that the wife, because of her relationship to her husband, was not to be believed (i.e., her testimony was as a matter of law of no probative value, that is to say, irrelevant) when she testified in her husband's behalf.*fn5

There also existed in the common law a rule that the wife could not be called to testify against her husband. While the origin of this rule is clouded in "tantalizing obscurity", 8 Wigmore § 2227, at 211 (M'Naghten rev. 1961), it is clear that the reason for it could have had nothing to do with the credibility of the wife when called to testify against her husband. To the contrary, the fear was that she would be all too truthful and, in exposing her spouse's faults, would disrupt the tranquility and sanctity of the marriage. It is thus

[ 453 Pa. Page 312]

    beyond doubt that this rule was not one of witness competency or disqualification, i.e., did not reflect a judicial belief that the testimony lacked probative value,*fn6 but was based on considerations of public policy. Only the rule barring favorable testimony was a rule of disqualification ; the rule regarding adverse testimony was a rule of privilege of the other spouse.

The modern view of the law of evidence is that rules altogether disqualifying a witness are strongly disfavored; few people are, as a matter of practical experience, totally not to be believed. The rule barring a spouse from giving favorable testimony has therefore altogether disappeared. It was eliminated in Pennsylvania by the Act of May 23, 1887, P. L. 158, § 1, 19 P.S. § 681. The opposite rule, however, reflecting as it did a policy of privilege unrelated to competency, has proved more persistent.*fn7

In the same Act of 1887, our Legislature enacted the following provisions, appearing in succession:

[19 P.S. § 683]: "Nor shall husband and wife be competent or permitted to testify against each other, or

[ 453 Pa. Page 313]

    in support of a criminal charge of adultery alleged to have been committed by or with the other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be a competent witness against the other, and except also that either of them shall be competent merely to prove the fact of marriage, in support of a criminal charge of adultery or bigamy alleged to have been committed by or with the other." (Emphasis added). Act of 1887, § 2(b).

[19 P.S. § 684]: "Nor shall either husband or wife be competent or permitted to testify to confidential communications made by one to the other, unless this privilege be waived upon the trial." Act of 1887, § 2(c). In light of the foregoing discussion, it is apparent that the Legislature of 1887 shared the rather common misunderstanding of the times and believed that the rule barring adverse testimony of a spouse was part and parcel of the rule barring favorable testimony.*fn8 If the language of section 2(b) of the Act of 1887 is to be taken literally, the rule barring adverse testimony was altered by the statute from one of privilege (which it was under the common law), founded on considerations of policy apart from credibility or relevance, into one of testimonial disqualification. In view of the fact that the statute of 1887 was enacted expressly to abolish, with certain exceptions, the common law rules of disqualification, it is unlikely in the extreme that the Legislature intended to create such a rule where none had previously existed. But this Court and the

[ 453 Pa. Page 314]

Superior Court have taken the Act quite literally. See, e.g., Commonwealth v. Stots, 436 Pa. 555, 261 A.2d 577 (1970); Ulrich's Case, 267 Pa. 233, 109 A. 922 (1920); Canole v. Allen, 222 Pa. 156, 70 A. 1053 (1908); Huffman v. Simmons, 131 Pa. Superior Ct. 370, 200 A. 274 (1938), all of which hold that section 2(b) is a competency statute (i.e., is based on the theory that the spouse's testimony is not probative) and that therefore a husband cannot consent to his wife's testifying against him, that failure to object is "connivance", Canole v. Allen, supra, 222 Pa. at 159, and that an appellate court will notice such sua sponte and apply some notion of clear error. These cases are cited with approval by the Court in today's opinion.

Nevertheless, I doubt that the majority considers that section 2(b) of the Act of 1887 is a real competency statute. My grounds for so observing are simple. It is obviously illogical to suggest that an adverse inference can be taken from failure to call an incompetent (i.e., a legally incredible or irrelevant) witness. Certain lunatics are incompetent, as are convicted perjurers, and yet no one would seriously suggest that an adverse inference be permitted because the defendant failed to call a gibbering madman or a convicted perjurer. Since the reason that such testimony is not allowed is because it would not be probative if given, how can it be said to be inferentially probative when not given?*fn9 The majority, apparently realizing intuitively

[ 453 Pa. Page 315]

    that the probative value of an inference taken from the failure to call the wife as a witness makes it impossible to approach the problem of her not testifying from the standpoint of competency (i.e., lack of probative value), instead addresses the matter in terms appropriate only to a question of evidentiary privilege.

In 1895 the Court decided the precise question answered by the majority today, Commonwealth v. Weber, 167 Pa. 153, 31 A. 481 (1895). There the Court unanimously approved prosecutorial comment on the failure of the defendant to call his wife -- as here, an eyewitness to the crime and available as a witness on his behalf -- to corroborate his claim that he killed in self-defense. In Commonwealth ex rel. Haines v. Banmiller, 398 Pa. 7, 157 A.2d 167 (1959), the Court by unanimous per curiam decision affirmed, on the opinion of the lower court, a denial of habeas corpus. That lower court opinion, Commonwealth ex rel. Haines v. Banmiller (No.2), 19 Pa. D. & C. 2d 219 (Cumberland Cnty 1959) (Sheely, P. J.), holds that it is not error either for the Commonwealth to call the wife or for the Court to give the permissible inference instruction complained of here, citing Commonwealth v. Weber, supra, as controlling authority.

Viewed as a question of the permissibility of drawing an adverse inference from assertion of an evidentiary privilege, the issue has produced, as the majority recognizes, a split of authority.*fn10 Professor Wigmore himself found the opposing views to be equally reasonable,

[ 453 Pa. Page 316]

    see 8 Wigmore § 2243, at 260-61 (M'Naghten rev. 1961), and set forth the argument favoring the inference as follows: "there is no actual coercion and no actual denial of the privilege, but merely a dilemma and an option which are created not by any direct attempt to break into the privilege, but by the accidental coincidence, upon the same piece of testimony, of two independent principles of law [i.e., the adverse inference to be taken from failure to call a certain witness on the one hand, and the privilege to exclude such evidence, if unfavorable, on the other], neither of which should be made to yield rather than the other."

However, in light of the fact that our Legislature has not disturbed our interpretation of 1895, reaffirmed in 1959; in light of the fact that the statute of 1887, § 2(b), and others like it have been widely and caustically criticized;*fn11 and in light of the fact that this Court has never accorded a broad treatment to the Act of 1887,*fn12 I think the proper decision today would have

[ 453 Pa. Page 317]

    been to hold the line. I certainly would not go out of my way to find in this statute a policy which was not apparent to the Court eight years after its enactment and which has been unasserted in the long interim by the General Assembly.

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