No. 33 May Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at No. 2370 Criminal Division, 1973
Carl G. Wass, Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. Atty., Harrisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Larsen, J., files a dissenting opinion.
Appellant, David Lee Stewart, was convicted by a jury on March 15, 1974, of voluntary manslaughter. Post-trial motions were denied and appellant was sentenced to a term of imprisonment from three to six years. This appeal followed.*fn1 For the reason hereafter given, we reverse the judgment of sentence and grant appellant a new trial.
The record discloses that on October 31, 1973, Stewart entered the Hill Recreational Center in Harrisburg, Pennsylvania, on his way home from work. At one of the pool tables in the recreational hall a crap game was in progress which Stewart joined. Jerry White, the decedent, subsequently entered the center and joined the group of men shooting dice and gambling at the crap table. An argument
then arose between Stewart and White over whether or not they had made a bet and, if so, who had won it. While the dispute was still going on, Stewart proceeded to leave the hall. He forced the front door open by pulling away a metal security bar attached to the door and started down the steps to the street carrying the bar. Stewart was quickly followed out the door by White, with two pool balls in hand, and one William Edwards, the man in charge of the building, who carried a pool stick. After some discussion among the three men, in the course of which, according to Stewart, White crossed the street to his car and brought back a gun, Stewart returned the metal bar to Edwards, and Edwards and White then reentered the building as Stewart left the scene.
Within ten minutes, Stewart reappeared in the pool hall carrying a gun. At this moment White had his back to the door. White then started to turn to face Stewart, at the same time reaching inside his coat, whereupon Stewart fired at least four shots at him. White was struck, fell against the wall and died with his gun in his hand, unfired. This gun was not recovered. After the shooting Stewart left the center, went home, changed his clothes, checked into a motel room overnight, and the next morning turned himself into the police at City Hall. He was then charged with murder.
At trial Stewart took the stand in his own defense. The gist of his testimony was that he returned to the recreational center for his jacket and fired at White in self-defense when White went for his gun. Other eyewitnesses testified that Stewart entered the hall with his gun drawn, approached the victim from the rear and commenced to fire at him. The victim's body bore three bullet entry wounds, one at the base of the spine, one in the left cheek and one in the left armpit where the fatal bullet entered before passing through both lungs.
Appellant argues that the refusal of the trial court to allow the admission of testimony of a prior incident of violent conduct by the decedent requires a new trial. We agree ...