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decided: October 15, 1987.


Appeal from order of the Superior Court of Pennsylvania, entered November 1, 1985, at No. 629 Harrisburg 1984, affirming judgment of sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, Criminal Division, at No. 1453 of 1981. 352 Pa. Super. 619, 505 A.2d 1036 (1985)


Allen C. Welch, Asst. Public Defender, for appellant.

Yvonne A. Okonieski, Deputy Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 516 Pa. Page 347]


This is an appeal by allowance from an order of the Superior Court affirming the conviction of Kenneth Scott (appellant) of voluntary manslaughter. We granted allocatur to consider whether the trial court erred in permitting the appellant's wife to testify against him.

On July 4, 1981, Kenneth Scott went to the Harrisburg home of his estranged wife, Linda, to take their children on an outing. While there, the appellant encountered his wife's live-in boyfriend, Allen Thomas. Words were exchanged between the two men concerning whether Scott had knocked on the door before entering. Thereafter, as the appellant was leaving with his children, Thomas gave him what was described as "a nasty stare." Following Scott's departure, Allen Thomas went upstairs and obtained a .357 magnum pistol, which he put in his trousers.

Kenneth Scott took his children with him to the residence of a friend, one Milton White; but, after the lapse of a short period, the children were sent home. Later that day, Scott, in the company of White, returned to his wife's house. The appellant came armed with a .22 caliber rifle. Kenneth Scott and his companion entered the house looking for Thomas, and found him in the kitchen with Mrs. Scott and the children. The appellant aimed the rifle at Thomas, who then responded to the situation by pulling out his magnum and moving toward the two intruders. Upon seeing that Allen Thomas was armed, the appellant exited the house and took up a position just outside. However, while the appellant was making his temporary withdrawal from the confrontation, Milton White, who had remained in the house, was fatally shot by Thomas. A few moments later, Thomas came out the front door, at which time he was greeted by seven shots fired by the appellant from the rifle. Two of the bullets struck Thomas, causing his death. Scott then fled the scene, and proceeded to hide the rifle. A short time later, he was taken into custody by the police.

[ 516 Pa. Page 348]

Kenneth Scott was charged with murder for the shooting death of Allen Thomas. The case subsequently came on for trial before a jury in the Court of Common Pleas of Dauphin County.

Prior to the commencement of the trial, the judge conducted an in camera hearing to determine whether the appellant's estranged wife, Linda Scott, could testify on behalf of the prosecution. The defense asserted that she was incompetent to testify by force of section 5913 of the Judicial Code, 42 Pa.C.S. § 5913. The trial court disagreed and ruled that Mrs. Scott could testify against her husband. The court opined that the ancient rule of spousal incompetence was a disserving anachronism, and that it should no longer be recognized. After describing the considerations of marital sanctity and harmony that have traditionally been relied on to support the rule, the court went on to state: "Clearly, if one spouse is willing to testify against the other there is no more harmony in the marriage than in a rock concert." The trial court also reasoned that because the appellant had also endangered his wife and children by pointing the rifle at Thomas in the kitchen, and because one of the children was later in the line of fire when Thomas was shot, an exception under 42 Pa.C.S. § 5913 made the wife competent to testify. As support for the latter line of reasoning, the trial court relied on the decision of the Superior Court in Commonwealth v. Galloway, 271 Pa. Super. 305, 413 A.2d 418 (1979). We must note that no criminal charges were ever lodged against the appellant for his conduct toward his wife or children.

At trial, the Commonwealth's evidence was sufficient to prove that Kenneth Scott had killed Thomas. The appellant, however, sought to convince the jury that he had shot the deceased in self-defense. According to the appellant, Thomas was the initial aggressor and had humiliated him. Scott further testified that, after seeing Thomas shoot Milton White, he felt that he had to fire the rifle to save his own life. ...

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