Appeal from the Order of May 3, 1983 in the Court of Common Pleas of Beaver County, Criminal Division, No. 290 of 1980.
John L. Walker, Beaver, for appellant.
Ahmed T. Aziz, Assistant District Attorney, Sewickley, for Com., appellee.
McEwen, Cercone and Handler,*fn* JJ. McEwen, J., concurs in the result.
[ 347 Pa. Super. Page 130]
Appellant, Tyrone Clark, was sentenced to life imprisonment following his conviction before a jury of second degree murder. In this direct appeal he raises a number of issues, one of which we find to have merit. Therefore, we reverse and grant a new trial.
The issue which was raised and properly reserved as error was the trial court's admission of the testimony of appellant's former wife into evidence as part of the Commonwealth's case in chief. Her testimony consisted of her husband's communications to her prior to and after his commission of an armed robbery of a gas station which resulted in the death of the attendant.
Mrs. Clark testified that on the night in question, she picked up her husband at work at 11 p.m. They drove to their home nearby, but her husband, appellant, left a short while after, carrying a shotgun. He told her that he was going to rob a gas station. About twenty minutes later he returned with the shotgun and told Mrs. Clark that he thought he shot and killed somebody and to call the police. He said that the man he was holding up at the gas station had grabbed at the gun, causing it to go off accidentally. Mrs. Clark reported the incident anonymously to police after which she accompanied appellant to a location where he broke the shotgun in half and disposed of the pieces.
Although they were married at the time of the incident on August 23, 1977, they were divorced in January
[ 347 Pa. Super. Page 1311980]
. At trial in August 1980, counsel for appellant objected to Mrs. Clark's testifying on the grounds that such testimony would violate the privilege protecting confidential communications between spouses. This common law privilege is codified in 42 Pa.C.S.A. § 5914:
Confidential communications between spouses
Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the ...