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submitted: March 19, 1984.


No. 3127 PHILA. 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Lancaster County, Criminal at No. 1391 of 1971


Penn B. Glazier, Lancaster, for appellant.

Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

Spaeth, President Judge, and Rowley and Beck, JJ. Rowley, J., files a concurring statement.

Author: Spaeth

[ 336 Pa. Super. Page 228]

This is an appeal from judgment of sentence for second-degree murder. Appellant raises twenty issues on appeal. The trial court's opinion adequately addresses issues I-IV, VI, VIII-XIV, and XVI-XIX.*fn1 Consequently, we address only the remaining issues. Of these, issues V and VII, which concern the admissibility of certain hearsay evidence,

[ 336 Pa. Super. Page 229]

    and issue XX, which concerns the propriety of appellant's sentence, are without merit. Issue XV concerns appellant's right to a charge on "unreasonable belief" voluntary manslaughter. The law on this issue has changed since appellant's trial and the trial court's opinion. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983). We therefore remand for further consideration in light of Carter.

On the morning of May 30, 1971, appellant went to his wife's apartment, where she gave him his .38 caliber pistol and six bullets, which she had taken with her when she and appellant separated. Later, about 4:00 p.m., appellant returned to the apartment with George Quinn, a friend. Appellant and his wife began arguing. When appellant asked his wife who had helped her move into the apartment, she named three persons, one of them Bobby Lee Jones. Appellant told her to telephone Jones. At first she would not, and they exchanged blows. At one point appellant's wife fell, and Quinn pulled appellant from her. According to the wife's statement to the police, appellant told her that he "was tired of these young punks trying to act like men. If they wanted to act like men he would treat them like men," N.T. 114-15, and, further, that she was going to "get it after he took care of Bobby," N.T. 121, but she "could get it first if [she] wanted it that way," id. In the end, she called Jones at the apartment of his girlfriend Shirley Johnson, in the building next door, and asked him to come to her apartment because appellant wanted to speak with him. When Jones entered the apartment, appellant punched him, and they started fighting. Appellant's wife left the apartment through the bedroom window and ran to Shirley Johnson's apartment, where she asked Johnson to call the police. Various neighbors testified to hearing shots coming from appellant's wife's apartment, and identified appellant and Quinn as the two men leaving the apartment. Appellant was said to have covered his face with a raincoat. Jones was found minutes later on the floor of the apartment. He died of two .38 caliber bullet wounds to the head and chest. Quinn was taken into custody the same day;

[ 336 Pa. Super. Page 230]

    appellant was finally arrested in Pittsburgh on July 14, 1971.

Appellant's issue V concerns the following testimony by his wife on direct examination:

Q. You ran over to Shirley Ann's and what did you tell her?

A. I told her to call the cops because Cornell [appellant] and Bobby [Lee Jones] were fighting.

Q. Is that what you told Shirley --

THE WITNESS: I ran up the steps. I don't know if I had to open the door or Shirley Ann opened the door, if I banged or whatever but anyway I told her to call the cops. I don't know what exactly I said. I told her to call the cops because they were fighting.

BY MR. RANCK [the District Attorney]:

Q. Have you looked at the statement to refresh your recollection?

A. I told her Cornell was going to shoot Bobby.

N.T. 123-124.

Defense counsel objected that this testimony was inadmissible as hearsay and an opinion, N.T. 125, and moved for a mistrial. The trial court ruled that the statement was admissible as an excited utterance, and denied the motion for a mistrial. N.T. 127.

When evidence is challenged as hearsay, the first inquiry should be whether in fact it is hearsay. If it is, the next inquiry is whether it is admissible as within an exception to the rule against hearsay evidence.

Here, appellant's wife testified that she remembered making a certain statement to Shirley Johnson. Arguably, this testimony was not hearsay: Appellant's wife was on the stand, under oath, and subject to cross-examination and the jury's observation of her demeanor. Her testimony that she remembered doing something -- going to Johnson's apartment -- was ...

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