Chas Lowenthal, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Nix, J., dissent.
Appellant, William Little, was found guilty of voluntary manslaughter following a jury trial on July 16, 1973. Post-verdict motions were denied, and appellant was sentenced to not less than four and one-half nor more than ten years imprisonment. This appeal followed.
The evidence presented at trial showed that on January 27, 1973, at approximately 3:18 a.m., police officers on patrol responded to a radio call and found a man, later identified as the decedent, Richard Jones, lying in a semi-conscious state on the sidewalk. The officers could see that Jones was bleeding and therefore transferred him to a nearby hospital. Jones died on February 18, 1973, of complications resulting from two gunshot wounds of the body. The prosecution's medical witness testified that death did not normally result from the kind of wound suffered by the decedent.
Detective Donald Reice of the Philadelphia Police Department testified that he was assigned to investigate the shooting, and that he went to the hospital at approximately 4:00 a.m., January 27, 1973, to interview the victim Richard Jones. Upon arriving at the hospital Detective Reice learned that the victim was unconscious and in critical condition and that he could not be interviewed. Subsequently, Detective Culbreth, also of the Philadelphia Police Department, went to the hospital, arriving at
approximately 9:15 a.m., January 27, 1973. Detective Culbreth interviewed the victim for approximately five minutes at that time. During this conversation, the decedent stated that he had been shot by the appellant.
Over appellant's objection, Detective Culbreth was permitted to testify at trial as to the substance of the above mentioned conversation with the decedent. Appellant now urges that it was error for the trial court to allow the victim's statement to be admitted into evidence because that statement was neither part of the "res gestae" of the homicide, nor was it a "dying declaration." We agree with appellant, and reverse the judgment of sentence and remand for a new trial.
The prosecution argues that the detective's testimony as to his conversation with the decedent is admissible as an exception to the hearsay rule under either the dying declaration exception or under the spontaneous utterance, res gestae, exception. This Court has recently discussed both of these exceptions to the hearsay rule in Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975), and a comparison of the instant appeal with the facts in Cooley will illustrate the error in the prosecution's position here.
Briefly stated, the pertinent facts in Cooley were as follows. The decedent in Cooley, having been shot in the neck by Cooley, collapsed to the floor. Police arrived at the scene less than thirty minutes after the shooting, and discovered decedent on the floor near his bed moaning and bleeding from a neck wound. The investigating officer testified that, in response to his inquiry as to what happened, the decedent stated "I was shot by Jim Dandy [appellant]." The victim was then rushed to the hospital where, five and one-half hours later, he died from the gunshot wound. ...