Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. 8303248A.
Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
Brosky, Olszewski and Popovich, JJ. Popovich, J., concurs in the result.
[ 358 Pa. Super. Page 273]
This is an appeal from the judgment of sentence imposed following a jury trial at which appellant was found guilty of third degree murder.
Appellant presents five issues for our determination: (1) whether the trial court erred by refusing to suppress certain statements made by appellant; (2) whether the testimony of Steve Owens constituted reversible error; (3) whether the Commonwealth failed to disprove self-defense; (4) whether trial counsel's stewardship of the defense was ineffective; (5) whether a remand for resentencing is required. On our review of the record and the briefs submitted by counsel, we find no merit in appellant's issues. Accordingly, we affirm judgment of sentence.
Appellant and the victim were City of Pittsburgh police officers. They met in March of 1980 and began dating six months later. The relationship between appellant and victim can best be described as tumultuous, as it was characterized by acts of harassment and violence.
On Wednesday, March 16, 1983, the night before the shooting, appellant drove to her girl friend's house. Along the way, the victim tailgaited appellant's car, bumping the rear of the car at traffic lights. Appellant, with her girl friend, drove to a bar where appellant met an old friend and neighbor, Steve Owens. When the victim arrived at the bar, words were exchanged between the victim and appellant. Appellant decided to leave, drove her friend home, and then proceeded to her apartment where she made herself ready for bed. Steve Owens, who was out walking his dog, stopped by appellant's house. They talked for about fifteen minutes and were then interrupted by the arrival of the victim.
The victim pounded and kicked the front door. After a few minutes of inaction appellant armed herself and unlocked the door. At that same moment, the victim kicked the door open and began to struggle with appellant for the gun. Steve Owens assisted appellant and the struggle ended with the victim exiting appellant's apartment. Seconds
[ 358 Pa. Super. Page 274]
later appellant heard the window of her car being broken. She immediately called the police. While waiting for the police to arrive, Steve Owens left to buy a pack of cigarettes.
When appellant was alone, the victim reappeared this time with his own gun. Upon entering, he backed appellant at gun point through the kitchen into the living room and then into the bedroom. While appellant and victim were in the bedroom the victim struck appellant with his gun and then kicked her. The direction of the confrontation changed, and appellant this time backed the victim through the living room into the kitchen. Near the kitchen, appellant was able to pick up her gun and point it at the victim. When they reached the back door, the victim ran onto the porch and then down the stairway to ground level.
Appellant stepped onto the porch, leaned over the railing, and saw the victim standing below. Although there was no witness corroboration, appellant claims the victim was holding a weapon. Appellant fired twice striking the victim in the back. The victim ran off, never firing his gun. With that, appellant called the police two more times. During the first call at 7:10 a.m. she said she had shot the victim, but his whereabouts were unknown and, in the second call at 7:16 a.m., she said the victim was "bleeding all over the place". Before the police arrived, Steve Owens returned and saw the victim lying dead on the ground next to his vehicle which was parked near appellant's apartment.
After the shooting a passerby heard appellant state, "He shot at me, I shot at him". Appellant asked the passerby to call the police and paramedics. When the police arrived, they found the victim lying on the sidewalk. As the police approached, appellant stated for a second time, "He shot at me, I shot at him". The door of appellant's apartment had to be forced open by the police because appellant was unable to open it. As the police entered, appellant stated ...