No. 271 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas, Lancaster County, Criminal Division, entered pursuant to Pa. R. Crim. P. 311, at No. 1391-1971.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellant.
Penn B. Glazier, Lancaster, for appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 271 Pa. Super. Page 307]
This is an appeal by the Commonwealth from the order of the lower court ruling that appellee-Galloway's wife was not competent to testify against him at a second trial under the Act of May 23, 1887, P.L. 158, § 2(b); as amended April 27, 1909, P.L. 179 § 1; as amended May 11, 1911, P.L. 269, § 1; 19 P.S. § 683.*fn1 From this order, the Commonwealth filed a Petition for Permission to Appeal, which was granted on June 22, 1978.
Appellee was first tried on March 30, 1972, and found guilty, by a jury, of second degree murder. He was sentenced to a term of ten to twenty years, and following a direct appeal to the Supreme Court, this judgment of sentence was reversed, and a new trial awarded.*fn2 Appellee's wife had not testified at the first trial.
The testimony heard at the pre-trial conference on May 17, 1978, held pursuant to Pa.R.Crim.P. 311, established that appellee and Deborah Galloway were lawfully married in 1969. After having lived together at several locations in the City of Lancaster, Pennsylvania, appellee and his wife separated around Easter, 1971. Galloway and his wife established separate residences and lived apart. At the hearing in this case, it was established that Mrs. Galloway is still legally married to appellee and has in her custody their two children. Mrs. Galloway testified under a stipulation that her testimony was to be considered solely for the purpose of determining her competency to testify at the trial. She
[ 271 Pa. Super. Page 308]
testified that on the morning of May 30, 1971 appellee telephoned her and told her that he wanted to see the children. In the afternoon when appellee was at her apartment, Mrs. Galloway and appellee had a fight, and she testified that each hit the other several times. She also stated that appellee wanted her to telephone one of the young men who had helped move her belongings into the apartment. After she refused at least one time she did telephone a girl's apartment where she knew Robert Jones could frequently be reached. Jones was one of the young men who had helped Mrs. Galloway move. She spoke to Jones and asked him to come over to her apartment. Her testimony, after refreshing her recollection from the transcript of the preliminary hearing in this case, was that after they had stopped hitting each other, appellee had a gun in his hand which he pointed at her. The gun was in appellee's hand while Mrs. Galloway was on the telephone with Jones. She claimed at this hearing that she would have made the telephone call even if the gun had not been in appellee's hand.
Jones came to the apartment shortly after the telephone conversation. Appellee hit Jones first and then a fight ensued. Also present at this time was George Quinn, who is now deceased. At this point Mrs. Galloway went into the bedroom of the apartment, went out the window and ran to a nearby apartment. She told the occupant to call the police as appellee and Jones were fighting. Then she ran down the steps from this apartment and heard a noise which she stated could have been a gun or a car backfiring. She did not think that she heard this noise more than twice.
The evidence introduced at the hearing disclosed that three charges were brought against appellee relating to offenses occurring on May 30, 1971 at the apartment of Mrs. Galloway before Jones arrived. Two of these charges were assault and battery against Mrs. Galloway (No. 1389 of 1971) and pointing a deadly weapon at ...