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decided: August 31, 1981.


No. 80-1-115, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, at No. 389 April Term, 1979.


Anthony W. DeBernardo, Jr., Richard H. Galloway & Associates, P. C., Greensburg, for appellant.

James J. Conte, Asst. Dist. Atty., Greensburg, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., filed an Opinion in Support of Affirmance in which Larsen and Kauffman, JJ., join. Roberts, J., filed an Opinion in Support of Reversal. Flaherty, J., filed an Opinion in Support of Reversal in which Nix, J., joins.

Author: Per Curiam

[ 495 Pa. Page 406]


The Court being equally divided, the judgment of sentence is affirmed.


O'BRIEN, Chief Justice.

This is an appeal from an Order imposing judgment of sentence entered on May 27, 1980, in the Court of Common Pleas of Westmoreland County. On September 18, 1979, appellant, Lynn Glass, also known as Lynn Haberland, was convicted by a jury of voluntary manslaughter. Post-verdict motions were filed, argued, and denied. On May 27, 1980, appellant was sentenced to undergo a term of imprisonment of not less than five years nor more than ten. This appeal followed.

[ 495 Pa. Page 407]

It is undisputed that the instant killing arose out of a domestic dispute between appellant and David P. Haberland, a man with whom appellant had been living in either a common-law marriage, as she contended, or a meretricious relationship, as the Commonwealth asserted.

In the evening of November 24, 1979, appellant and David Haberland had been drinking, first at one and later at a second North Huntingdon, Pennsylvania, tavern. From this latter tavern they departed for their home, appellant in her own automobile and, approximately one-half hour later, David Haberland in his.

Early in the morning of November 25, 1979, police and emergency personnel were summoned by appellant to the address she shared with David Haberland. There the officers found the body of David Haberland lying on his back on the kitchen floor. Post-mortem examination determined that the cause of death was attributable to gunshot wounds of the head and chest. The murder weapon, a .38 caliber revolver, was discovered under the right side and right hand of the body.

At trial the Commonwealth sought to prove appellant shot the victim intentionally because she believed he was going to leave her. The defense, on the other hand, contended the weapon discharged accidentally during a struggle precipitated by the decedent. The jury found appellant guilty of voluntary manslaughter. Appellant now advances nine issues for our review.

First appellant asserts the trial court erred in permitting two Commonwealth witnesses, Timothy Walker and Joyce Haberland, to testify over defense objection. The witness Walker was an employee of the victim at his sign painting company; the witness Haberland was the decedent's former wife. Both testified at trial concerning statements made to them by the victim, the sense of which was that he was dissatisfied with his relationship with appellant and intended to terminate it. Appellant complains the statements were irrelevant and hearsay.

[ 495 Pa. Page 408]

Clearly the testimony, offered as it was to establish motive, was relevant; indeed appellant concedes that fact. (Brief for appellant at 11). I conclude that it was also admissible under the state of mind exception to the hearsay rule. The statements admitted in the instant case are indistinguishable from the statement which we held to be admissible in Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978). Lowenberg reaffirmed the well-settled principle that the out-of-court statements of the victim which show the declarant's state of mind are admissible. State of mind in the instant case is relevant in that it is probative of motive. There was no error in admitting the complained-of testimony.

Second appellant contends the trial court erred in denying a motion for mistrial made during the testimony of the witness Joyce Haberland. During her direct examination the witness testified:

"He [the decedent] said he just about had all he could take. He just couldn't stand the quarrelling and the jealousy and the arguments and the police coming to the house, break it up, and he just couldn't live that way any longer and he was going to leave for good this time."

Following this testimony the defense moved for mistrial. The motion was denied and appellant now assigns that ruling as error. The gravamen of appellant's complaint is that testimony from which a jury may reasonably infer prior criminal conduct on the part of an accused constitutes prejudicial error.

The principle of law upon which appellant relies is undoubtedly correct; it is her application of the principle to the facts of the instant case which is erroneous. First, the import of the statement is capable of question. That the police came to the home of the victim need not imply criminal conduct on the part of anyone. Such testimony may lead a jury to infer criminal conduct on the part of the decedent. "To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense."

[ 495 Pa. Page 409]

An offer of proof was made by the defense that Dr. Guinn would testify the standard used by Mr. Fox, against which to measure his data, was antiquated and obsolete. The trial court refused to permit such testimony, concluding it would amount to expert opinion as to credibility. Appellant now assigns that ruling as error.

My review of the record convinces me that the trial court did not err. Dr. Guinn was permitted to testify at great length concerning his qualifications, his experience, and his own opinions. He testified he had developed standards against which to gauge his test results from his analysis of thousands of test firings. He testified his standard was different from that utilized by Mr. Fox. Finally, Dr. Guinn testified that it was his expert opinion that the residue discovered on the hands of the decedent was consistent with his having recently fired a weapon.

Mr. Fox testified "the standard I use is derived from test firings that I have performed or have had performed at the laboratory, as well as test firings and work that has been done by the F. B. I. and the U.S. Treasury Department." To have permitted Dr. Guinn to testify that in his opinion Mr. Fox' standard was inaccurate would have been tantamount to assailing his credentials as an expert, which the defense has at no time done.

In my view, the issue of credibility as between contesting expert witnesses was fairly before the trier of fact, where it properly belonged. I perceive no error in the court's minimal restriction of Dr. Guinn's testimony.

Appellant's fourth claim of error urges upon us the proposition that the trial court erred in admitting into evidence, over objection, two photographs of the victim's corpse. Of the photographs admitted into evidence at trial, one depicts only the feet and lower legs of the victim, apparently fully clad. Also shown is a shattered bowl of a substance identified as gravy and a crumpled piece of plastic wrap. A second photograph depicts the full-form corpse of the victim lying on his back. While the face of the decedent is not, because of the angle at which the photograph was taken,

[ 495 Pa. Page 411]

    discernible, some blood is visible on the floor around the victim's head. I assume it is these photographs ...

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