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COMMONWEALTH PENNSYLVANIA v. ROBERT HESS (10/05/79)

decided: October 5, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT HESS, APPELLANT



No. 2913 October Term, 1978 Appeal from the Judgment of Sentence imposed of the Court of Common Pleas of Bucks County, Criminal Division - No. 2646

COUNSEL

Peter J. Verderame, Langhorne, for appellant.

John J. Kevlock, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Price, Gates and Dowling,*fn* JJ. Price, J., concurs in the result.

Author: Dowling

[ 270 Pa. Super. Page 505]

Appellant, Robert Hess, was tried before a judge and jury and found guilty of simple and aggravated assault, recklessly endangering another person, terroristic threats, and unlawful restraint, all committed against his wife. Appellant has filed this appeal following denial of post conviction motions.

The first issue relates to the trial court's exclusion of evidence of the appellant's inebriated condition at the time the criminal offenses were committed. He admits that the exclusion was dictated by statute, specifically 18 Pa.C.S.A. § 308 of the Crimes Code,*fn1 but contends that the statute is constitutionally infirm.

The identical issue was raised and disposed of in Commonwealth v. Custer, 30 Bucks.L.Rep. 178 (1977) aff'd per curiam, (1978). See also, Commonwealth v. Bable, 248 Pa. Super. 496, 375 A.2d 350 (1977); Commonwealth v. Pickett, 244 Pa. Super. 433, 368 A.2d 799 (1976). For the reasons stated in the foregoing decisions, we reject appellant's challenge and uphold both the constitutionality of Section 308 of the Crimes Code and the lower court's exclusion of evidence pursuant to it.

The next assignment of error concerns the trial court's ruling that the appellant's wife was required to testify against her will as a prosecution witness. The lower court's ruling was founded upon the Act of 1911, May 11, P.L. 269, § 1, 19 P.S. § 683, which abrogates the inter-spousal testimonial privilege ". . . in any criminal proceeding against either (spouse) for bodily injury or violence . . . threatened upon each other . . . ." Appellant acknowledges that his wife was a competent witness, but submits

[ 270 Pa. Super. Page 506]

    that the lower court's compulsion of her testimony was neither authorized by the terms of the statute nor encompassed by the legislative intent.

The question presented, one of first impression in our jurisdiction,*fn2 is essentially a matter of statutory construction. In this connection, we find enlightenment in a New Jersey decision, State v. Briley, 53 N.J. 498, 251 A.2d 442 (1969) wherein a unanimous Supreme Court, interpreting an evidentiary statute similar to our own, held that ". . . the wife should be a competent and compellable witness against her husband . . ." where the wife alone or together with others is victimized by the husband's criminal conduct.

"A husband who assaults his wife commits an injury upon her and upon the society of which they are members. It is for the injury to the public, committed upon it through the person of his wife, that he punished . . . And it is therefore, for the protection of society, and of the wife as a member of society, that she is made competent as a witness against him . . . And ...


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