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COMMONWEALTH PENNSYLVANIA v. HOWARD EUGENE WHITE (11/16/79)

filed: November 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
HOWARD EUGENE WHITE, APPELLANT



Nos. 323 and 324 Special Transfer Docket, Appeals from Judgments of Sentence of Court of Common Pleas of Bedford County, Criminal Division, at Nos. 31 and 32 for the Year 1977

COUNSEL

Charles B. Swigart, Huntingdon, for appellant.

Arvin Maskin, Deputy Attorney General, Harrisburg, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 271 Pa. Super. Page 553]

Appellant, Howard Eugene White, appeals from the judgments of sentence imposed following his conviction of murder of the third degree, rape and aggravated assault in a non-jury trial in the Court of Common Pleas of Bedford County.

White advances two assignments of error in support of his request for a new trial or, in the alternative, a remand for resentencing. Neither of appellant's claims has merit. Accordingly, we affirm the judgments of sentence.

The charges against White arose out of events which occurred on January 9, 1977, in the apartment of Shirley White, his former wife. White had gone there armed with a handgun for the announced purpose of picking up a set of encyclopedias Shirley had taken with her when she moved out of the family dwelling. As Shirley and her male companion, William "Buck" Weaver, each carried an armload of

[ 271 Pa. Super. Page 554]

    books to White who waited near the front door, White began firing the gun at them. Four of the shots fired at Weaver struck him and wounded him fatally. One of the shots fired at Shirley struck and wounded her in the forearm. Thereafter, White raped his former wife.

At trial there was little dispute as to the factual basis of the crime. The chief issue was defendant's state of mind at the time the acts were committed. White, who claimed to be suffering from amnesia, testified he could not recall the episode. As a result, defense counsel was granted permission to have a psychiatric examination conducted for the purpose of "breaking through" the amnesia. White was put under the influence of sodium amytal, a "truth" drug, and a video tape of the examination was made. The tape was admitted at trial, over the Commonwealth's objection, for the limited purpose of allowing the court to see and hear one of the bases for the expert's opinion regarding White's state of mind at the time of the crime.*fn* When the defense rested, counsel offered the video tape as general evidence. The court sustained the Commonwealth's objection and refused the offer on the basis that the interview statements were hearsay and did not have the indicia of reliability necessary to qualify as an exception to the rule against hearsay evidence.

The reasons for excluding hearsay evidence are that: (1) it is not given under oath; (2) the declarant is not personally present at trial so that his demeanor may be observed; and, (3) the declarant is not subject to cross-examination. McCormick, Evidence ยง 245 (2d ed. 1972). The last reason is usually considered the most important. There are exceptions to ...


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