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decided: July 14, 1978.


Nos. 30 and 92 March Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered on August 6, 1976, at Nos. CC7407117 and CC7407161.


Paul D. Boas, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Robert A. Zunich, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino, and Larsen, JJ. Larsen, J., filed a dissenting opinion.

Author: Manderino

[ 480 Pa. Page 51]


This appeal is from the judgments of sentence imposed upon appellant, Harold L. Scott, by the Court of Common Pleas of Allegheny County following a jury trial and a return of verdicts of guilty of murder in the first degree and of violation of the Uniform Firearms Act. Following the filing of post-verdict motions, the judgment of sentence of life imprisonment for murder was appealed directly to us, and the judgment of sentence of a concurrent 2 1/2 to 5 year prison term for the firearms violation was appealed to the Superior Court and transferred here.

At approximately 2:05 a.m., on October 19, 1974, Paul Infante, a 26 year-old white male was shot at close range by

[ 480 Pa. Page 52]

    appellant with a .38 caliber revolver; he was taken to the hospital and pronounced dead at 2:40 a.m. The cause of death was determined to be a gunshot wound to the victim's chest resulting in a perforation of the heart and lungs and consequent bleeding.

At trial, appellant did not dispute the fact that he fired the shot that killed Infante. Appellant contended, however, that he shot Infante only after repeated verbal efforts to get Infante to leave the area in front of his house, and only after Infante attacked him with a straight razor. In support of the defense version of the incident surrounding the shooting, appellant's wife, Alice Scott, testified that in the early morning hours of October 19, 1974, a large fight between black and white males erupted near the house occupied by her and appellant. At the time she and her young son were alone in the house. She told the jury that the fight involved a group of ten to fifteen white males, some of whom were carrying weapons, and that this group of whites was chasing two black youths down North Millvale Avenue past appellant's and her house. When the gang of whites reached the area in front of the house, and saw her looking from the window, they began threatening her with weapons and yelling "Come on out, nigger, we'll get you, too, nigger." At this point Alice Scott telephoned appellant, who was at a tavern about a block away from the house, and told him what was going on. Appellant instructed her to stay in the house and to call the police, and said he would be right there. Appellant then ran home and entered the house through the rear door. At this time some of the whites were at the front window. Appellant picked up his hand gun and exited the house through the front door.

Appellant testified that when he exited through the front door, he saw five white males in front of his home. Some of them were armed. Appellant then told the whites, to ". . . get away from my house," but Infante came at appellant with what appeared to be a straight razor. According to appellant, the crowd of whites urged Infante on, and after firing two warning shots, appellant fired what

[ 480 Pa. Page 53]

    turned out to be the fatal shot as Infante lunged toward him. Appellant then went into the house, told his wife to call an ambulance, re-exited the house and surrendered himself to the police when they arrived.

In support of his version of the incidents surrounding the shooting, appellant attempted to introduce testimony of his wife Alice Scott, who was called as a witness before appellant, of prior racial incidents that had occurred in the community, including a similar incident that took place thirty-five days prior to the shooting. According to defense counsel's offer of proof, the purpose of the proposed testimony was to show to the jury that appellant and his wife were in a state of fear at the time of the shooting. This evidence of appellant's state of mind was presumably intended to persuade the jury that appellant acted out of a reasonable fear for his life, or at the very least, to negate the prosecutor's contention that the shooting was done with malice. In support of this contention, defense counsel stated to the court that he wanted to introduce Alice Scott's testimony that on the earlier occasion, a gang of armed white males parked their car near the Scott home, got out of the vehicle, and brandished their weapons at appellant and his wife. The offer further stated that at the time of the previous incident, Alice Scott called the police but they never responded. The prosecutor objected to this line of questioning and the objection was sustained, with the trial judge ruling that the proposed testimony was irrelevant.

We agree with appellant that in refusing to allow the jury to hear evidence concerning this prior incident, the trial court deprived appellant of the opportunity to present relevant evidence concerning his state of mind at the time of the shooting. Because we conclude that in excluding this evidence the trial court committed reversible error, we need not now address ...

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