Rudolph S. Pallastrone, George A. Bachetti, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Glen Gitomer, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring opinion in which Roberts, J., joined. Nix, J., concurred in the result. Pomeroy, J., dissented.
Appellant, Ruth Jackson, was found guilty of voluntary manslaughter following a non-jury trial. Motions in arrest of judgment and/or a new trial were denied and a term of psychiatric probation was imposed. This appeal followed.
Throughout, Jackson has argued that this homicide was justifiable since she acted to prevent the infliction of great bodily harm on her niece, Anita Peake. The trial court rejected this position stating an auntniece relationship is not sufficiently close kinship to justify one intervening to defend the other. While the trial court was correct in ruling that the kinship in this case was not close enough to permit Jackson to employ the defense of defending a near relative, that is, a husband, wife, child or servant, Commonwealth v. Russogulo, 263 Pa. 93,
A. 180 (1919); Commonwealth v. Paese, 220 Pa. 371, 69 A. 891 (1908), the trial court ignored an overlapping,*fn1 but stricter,*fn2 defense available to any person acting to prevent the commission of a felony:
"For the protection of the weak and unfortunate and the assertion of the duties of humanity, reliance must
be had on the ancient and settled right to interfere to prevent a felony, with its well-guarded limitations that the injury to be prevented must be serious, must be imminent and not past, the quarrel in actual progress, and the necessity for the use of a deadly weapon clear of doubt." [Citations omitted.]
Commonwealth v. Pease, supra at 378, 69 A. at 894; see also Commonwealth v. Russogulo, supra. Therefore, the issue presented by this appeal is whether Jackson has established the common law defense available to those acting to ...