Joel Harvey Slomsky, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Roberts and Manderino, JJ., filed dissenting opinions.
This appeal arises out of the shooting death of one Paul Williford on January 10, 1974. Appellant John Black was arrested immediately thereafter and charged with murder. Following a trial before a jury in the Court of Common Pleas, Philadelphia County, Black was convicted of murder of the second degree. Post-trial motions were argued and denied and appellant was sentenced to a period of imprisonment of not less than five nor more than twenty years in the state correctional institution at Graterford. This direct appeal followed.*fn1
At time of trial, appellant did not deny that he shot the decedent but asserted self-defense. It is now argued that the trial court erred in refusing to permit the jury to hear the testimony of two defense witnesses, a psychiatrist and a psychologist, who would have testified concerning the state of mind of appellant at the time of the incident in order to support the claim of self-defense. Although we agree that the proffered evidence would have been relevant to a claim of self-defense, Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974), the exclusion of that evidence in this case was not reversible error. Rather, we conclude that even had the evidence been admitted, the record failed to establish as a matter of law a valid claim of self-defense.
The testimony adduced by the Commonwealth was as follows. On the evening of January 10, 1974, appellant was at his home on Juniata Street in Philadelphia with his
common law wife, Ruth Black. Mrs. Black was the mother of Lillian Williford, the wife of the decedent, who resided on North 21st Street in Philadelphia. Mrs. Williford telephoned her mother that evening at approximately 7:00 P.M., and after they had briefly conversed, appellant informed his wife that he wished to speak to Mrs. Williford. Appellant took the telephone and asked to speak to the decedent. Mrs. Williford went upstairs to listen to the conversation on an extension telephone, and the decedent's 14-year-old son also listened in on a basement extension. They both testified that appellant sounded "drunk." They heard appellant curse at decedent and tell him, "If you come down here, I'll kill you on the spot. I'll shoot you. I'll be waiting for you." They further testified that the decedent said, "Now John," then hung up the telephone, put on his coat and left the house. Following his departure at approximately 7:30 P.M., Mrs. Williford telephoned the police.
When the police officers arrived at the address of appellant they found the deceased lying on the sidewalk near the curbline, a few feet from his car. The body was between appellant's property at 1851 Juniata Street and the adjoining neighbor's residence at 1853. Appellant was sitting on the top step of his front porch holding a gun in his hand. The officer asked what happened and appellant replied, "I shot him." After handing over his weapon, a .22 calibre revolver, to the officer, appellant was arrested and taken to the Police Administration Building for questioning. The Commonwealth's medical examiner testified that the decedent died from a single .22 calibre bullet which entered his chest from the front.
Appellant's account of the incident stands in sharp contrast to that presented by the Commonwealth. Appellant testified that the decedent had argued with him one month before the shooting concerning statements made by appellant to a woman whom the decedent was seeing. Appellant testified that Mr. Williford was enraged because be (Black) had told the lady that Williford was married. It was further testified that the decedent initiated the same argument
over the telephone on the evening of the shooting. The decedent threatened appellant, and, despite appellant's entreaties, stated that he was "coming down to settle it on the street." After hanging up, Black stated that he was "mixed up and excited." He feared a confrontation, and instructed his wife to bring their dog around to the front of the house. He then stood in the open front doorway to await Williford's arrival. Within minutes, the decedent pulled up in front of the house, jumped out of his car and ran toward appellant while reaching into his pocket.*fn2 The decedent's actions allegedly frightened appellant, and in response, Black grabbed a gun which the family kept on the top of the radio near the front door, pointed it in decedent's direction and "just hauled off and shot him." After firing one shot, which proved fatal, appellant sat down on the porch to await the arrival of the authorities. Williford, upon being struck by the bullet, collapsed on the sidewalk near the curb.
The statutory definition of self-defense is set forth in the New Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, et seq., 18 Pa.C.S. § 501 et seq. Section 505(a) specifically provides:
"The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such person on the present occasion."
The operation of the defense of self-defense is limited however, by Section 505(b)(2) which proscribes the use of deadly force except under those circumstances where "the actor believes that such force is necessary to protect himself against death [or] serious bodily injury . . ." Moreover the word "believes" as used in both above-quoted subsections is defined to mean "reasonably believes" pursuant to Section 501. See also, Commonwealth v. Walley, 466 Pa. 363, 353 A.2d 396 (1976); Commonwealth v. Cropper, 463 Pa. 529, 345
A.2d 645 (1975); Commonwealth v. Bamber, 463 Pa. 216, 344 A.2d 799 (1975). Thus, as provided by statute and as interpreted through our case law,*fn3 to establish the defense of self-defense it must be shown that a) the slayer was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself therefrom; and c) the slayer did not ...