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decided: October 16, 1974.


Appeal from judgment of Court of Common Pleas of Lehigh County, Nos. 1280, 1281 and 1282 of 1973, in case of Commonwealth of Pennsylvania v. James J. Coleman.


Frederick J. Lanshe, Public Defender, for appellant.

Lawrence J. Brenner, Assistant District Attorney, with him George J. Joseph, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen and Mr. Justice Manderino concur in the result. Concurring Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts and Mr. Justice Nix join in this concurring opinion.

Author: Jones

[ 458 Pa. Page 114]

On May 3, 1971, at approximately 6:00 a.m., Diane McCarthy was awakened by her boyfriend, James Coleman, who lived with her at her apartment in Allentown, Pennsylvania. At 6:15 a.m., Diane telephoned her mother in East Stroudsburg, saying that Coleman would not let her leave the apartment, that he would hang up the phone and that he was going to kill her. At approximately 6:25 a.m., the telephone connection was broken in Allentown, and the mother, Marilyn McCarthy, called the police as Diane had implored her to do. Five minutes later, Coleman, blood-spattered and cut about the face and hands, hailed a patrol car on a nearby street and said that he had hurt his girlfriend. The police found Diane in her apartment dead of multiple stab wounds at 6:35 a.m.

Appellant was tried before a jury in the Court of Common Pleas of Lehigh County and convicted of aggravated assault and battery, assault with intent to kill and second degree murder on September 24, 1971. Timely motions for new trial and in arrest of judgment were denied, and appellant was sentenced to a term of ten to twenty years' imprisonment. This appeal followed.

[ 458 Pa. Page 115]

Appellant contends that the trial judge erred in permitting the decedent's mother to testify for the Commonwealth as to the decedent's statements in the aforementioned telephone conversation prior to her death. He maintains that admission of this testimony under the res gestae exception to the hearsay rule was improper in that the decedent voiced only opinions without factual support at the time given. He argues that the effect of the judge's ruling was to preclude a successful plea of self-defense and to deter the jury from a verdict of voluntary manslaughter by evidencing the existence of malice. Appellant testified at trial that he had stabbed the decedent, but claimed that she had precipitated his action by an unprovoked attack upon him with a letter opener. He submits now, in essence, that the decedent's statements to her mother over the telephone are inadmissible as both hearsay and pure opinion. There is, however, no contention that the verdict was against the weight of the evidence.

The issue raised by this appeal is one of first impression in this Commonwealth. There is no doubt that the challenged testimony of decedent's mother comports with the classical definition of hearsay as an out-of-court utterance offered to prove the truth of the fact asserted, i.e., that appellant had made manifest an intent to kill Diane McCarthy. This Court must determine whether a declaration rendered in conclusory terms over a telephone conveying the substance of one's observation of another's apparently threatening behavior is properly admissible as evidence under any exception to the hearsay rule.

This Court has consistently recognized the validity and rationality of the res gestae exception to the bar against admissibility of hearsay evidence at trial. In examining the concept of res gestae, the courts of this Commonwealth have adhered to the thesis that: "A res gestae declaration may be defined as a spontaneous

[ 458 Pa. Page 116]

    declaration by a person whose mind has been suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties." Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942). Accord, Cody v. S. K. F. Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972); Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968); Carney v. Pennsylvania R. R. Co., 428 Pa. 489, 240 A.2d 71 (1968); Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962). The rationale underlying the exclusion of res gestae declarations from the hearsay rule is that the startling event speaks through the verbal acts of the declarant and vests reliability ...

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