Nos. 57 and 91 January Term, 1978, Appeals from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia, as of October Sessions, 1977, Nos. 643-4 Sustaining Demurrers and Discharging Appellee
Steven H. Goldblatt, Deputy Dist. Atty., Nancy D. Wasser, Philadelphia, for appellant.
Ronald B. Abrams, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., files a concurring opinion.
This appeal by the Commonwealth results from an order in the Court of Common Pleas of Philadelphia granting a demurrer to the evidence on all charges filed against Christine Wimberly, the appellee.
Appellee was arrested on September 16, 1977, and was charged with murder,*fn1 involuntary manslaughter and possessing instruments of crime. Appellee filed a motion to suppress certain physical evidence plus a written statement, but the motion was denied. Appellee's non-jury trial commenced on January 18, 1978. At the conclusion of the Commonwealth's case, the court sustained demurrers to all charges. This appeal followed.
We note initially that for purposes of her demurrer, appellee admitted all the facts which the Commonwealth's evidence tended to prove and all inferences reasonably deducible from those facts. Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976); Act of June 5, 1937, P.L. 1703, No. 357, § 1, 19 P.S. § 481.*fn2 In ruling on a demurrer the proper test to be applied by the trial court is whether the Commonwealth's evidence and all reasonable inferences therefrom is sufficient to support a finding by the trier of fact that the accused is guilty beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977).
The trial court, however, did not feel itself constrained to apply the proper test. Rather, the court made the following findings:
"The testimony clearly demonstrated that Ms. Wimberly did not provoke or continue the altercation [earlier on the day of the shooting]. On the contrary, she acted reasonably to end or avoid the confrontation with her ex-husband. His refusal to cease the harassment was his unilateral determination. It is equally clear that the defendant
could reasonably believe she was in immediate danger of death or serious bodily harm. The defendant knew the decedent was mentally unbalanced. She was also aware of past instances when the decedent became physically violent, and that on those episodes the violence was directed against the defendant. Ms. Wimberly did not initiate the confrontations that led to this incident. Earlier that day she had summoned the police in order to escape the decedent. Moreover, the defendant was ...