NO. 1772 PHILADELPHIA, 1981, Appeal from the Order of June 9, 1981, in the Court of Common Pleas of Philadelphia County, Criminal, at No. 597-599 May Term, 1981.
Marianne E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Dennis J. Cogan, Philadelphia, for appellee.
Hester, Brosky and Beck, JJ.
The Commonwealth appeals an order granting appellee's motion to quash the return of the Municipal Court transcript.
Appellee Steven Smerechenski was charged with involuntary manslaughter, murder, and possession of an instrument of crime arising out of the shooting death of his son Steven on November 27, 1980, inside the family residence. The deceased was nineteen years of age and a member of the armed forces at the time of the incident. The only witness to the shooting was Nancy Smerechenski, wife of appellee and natural mother of the deceased.
Prior to the preliminary hearing a Philadelphia Municipal Court judge ruled that Nancy Smerechenski was competent to testify against her husband at a preliminary hearing. After the preliminary hearing, appellee was held for court. Appellee then filed a motion in the Court of Common Pleas to quash the return of the Municipal Court transcript which was granted. The Court of Common Pleas ruled that appellee's wife was not competent to testify against him. Since she was the only witness to testify against him at the preliminary hearing, the Common Pleas Court ruled that a prima facie case had not been made out. It issued appellee's requested order and discharged him.
This appeal by the Commonwealth from the lower court order, which in effect granted habeas corpus relief to appellee, is properly now before us. Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971).
The sole issue for our consideration is whether the nineteen year old decedent was a minor child under Pennsylvania law for purposes of the criminal spousal testimony statute, Section 5913 of the Judicial Code, 42 Pa.C.S. § 5913. We hold that a nineteen year old decedent is a minor making appellee's wife competent to testify against him.
The criminal spousal testimony statute does not provide an absolute bar to adverse spousal testimony in criminal proceedings.*fn1 It provides in relevant part:
Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that . . . in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or ...