No. 1698 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cumberland County at No. 743 of 1978.
John H. Broujos, Carlisle, for appellant.
Kevin A. Hess, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ.
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The appellant, J. B. Battle, was charged with the murder of his wife, Stella M. Battle. At trial the Commonwealth proceeded solely on the lesser included offense of voluntary manslaughter. The jury found the defendant guilty of the lesser included offense of involuntary manslaughter. Posttrial motions for a new trial and in arrest of judgment were filed in the lower court and denied.
The facts of the case are essentially undisputed. Mr. and Mrs. Battle, at least for several months prior to the shooting,
[ 289 Pa. Super. Page 371]
had a turbulent relationship. Following her mother's death, Stella Battle had begun to drink heavily. This and her desire to drive while intoxicated became the subject of several arguments between her and her husband. According to testimony, nine days prior to the shooting an argument ensued in which Mrs. Battle, brandishing a butcher knife, chased her husband into the street. On another occasion Mrs. Battle held a gun on her husband. Mr. Battle was injured in an automobile accident and must wear a metal brace and walk with canes or crutches.
On the day of the shooting, July 15, 1978, at approximately 7:20 p. m., appellant, while alone at home, summoned the police. He sought assistance from the two police officers who arrived in dealing with his wife's drinking problem. The officers spoke to the appellant for a few minutes, then left. The police were summoned again at 7:50 p. m. By this time Mrs. Battle was at home attempting to drive off in the car. The appellant disabled the car by removing an engine coil, but not before his wife had slammed the hood of the car on his back. Throughout the incident Mrs. Battle was acting belligerently toward both her husband and the police. After the police left the scene the couple continued to argue.
According to testimony, soon after the police left both Mr. and Mrs. Battle entered the house and then reappeared outside minutes later. The appellant had armed himself with a handgun. Mrs. Battle returned to the car, insisting that her husband replace the part he removed. Appellant refused to do so. Mrs. Battle then got out of the car and walked through an alley and entered the back of the Battle residence. She surprised the appellant who was standing in the hallway near the front door. Mrs. Battle was holding a two-by-four, three feet in length, which was used to prop open the gate in the alley. A struggle ensued. Mrs. Battle struck appellant with the board, causing him to drop his canes. Appellant fired two warning shots in the air and urged his wife to stop. However, she persisted. The third and fatal shot was fired. Appellant testified that when this shot was fired he was stumbling backward trying to avoid
[ 289 Pa. Super. Page 372]
being hit by the board his wife was wielding. He stated that he never aimed at his ...