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decided: July 2, 1981.


No. 80-1-26, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, entered on January 3, 1980, at No. 7901917 A, Criminal Division.


Bruce E. Dice, Zimmer & Dice, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kathryn L. Simpson, Asst. Dist. Atty., Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: Roberts

[ 494 Pa. Page 262]


This is a direct appeal from judgment of sentence of life imprisonment imposed by the Court of Common Pleas of Allegheny County upon conviction of murder of the first degree. Appellant, Elgin L. Thornton, raises one claim of error: that the trial court, over defense objection, improperly admitted an oral statement made by the victim on the evening before the killing. The trial court ruled the statement admissible on the ground that it was within the "state of mind" exception to the rule against hearsay. We conclude that, because the victim's state of mind was not a factor in issue, the statement was immaterial and irrelevant to the prosecution's case and thus appellant's objection should have been sustained. We also conclude that, when the statement is considered for its substantive truth, although material and relevant to the issue of appellant's intent to kill, the statement could not have reasonably contributed to the jury's verdict. Since we find the erroneous admission of the statement to be harmless error we affirm. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Appellant Thornton was tried before a jury on charges of criminal homicide and criminal conspiracy.*fn1 He admitted having shot and killed the victim, Larry Moore, but defended on theories of self-defense and provocation. In his brief, appellant acknowledges that "[n]one of the critical facts as posited by the prosecution was denied by the defense."*fn2

The evening before the killing, a police patrol car responded to a radio report of a domestic disturbance at the home of appellant's sister. Upon entering the home, police saw

[ 494 Pa. Page 263]

Larry Moore, estranged common law husband of appellant's sister, standing with a baseball bat in his hand. Appellant's sister and mother were also present. After discovering that Moore was carrying a gun, the police arrested him and then took him to the police station for booking. Although a police officer testified that there was no evidence of physical injury, appellant's sister and mother both testified that they had been hit by Moore. They further testified that after Moore and the police had left, appellant's brother Benny Thornton drove them to a hospital for emergency room treatment.

The following morning, sometime between 10:30 a. m. and 12:00 noon, appellant visited his brother Benny Thornton. Three acquaintances, William Andrews, Robert Childs and Noel Thomas, were also present. Appellant testified that Benny Thornton told him that Moore had beaten their sister and mother with a baseball bat the night before.

Upon learning that Moore and Moore's brother were on a nearby street corner, appellant and his three companions drove to the corner. They arrived at the corner at approximately 2:50 p. m. but did not see Moore. After a brief encounter with Moore's brother, they drove to a neighborhood amusement arcade which appellant managed. Approximately twenty minutes later another acquaintance, Mike Dean, arrived with a message from Benny Thornton that Moore was at a neighborhood school. Appellant testified that he was also told that Moore was attempting to pick up appellant's seven year old nephew (Moore's son) after school.

Immediately appellant and the four men drove to the school. As they reached the side of the school, the driver stopped the car and Noel Thomas got out. The car was then driven to the front gate of the school.

Moore was seated on the school steps directly in front of the school door. Appellant got out of the car and, armed with a shotgun, approached Moore. At a distance of five to ten feet appellant shot Moore in the back. Before appellant shot, Moore raised one hand and then turned ...

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