Appeal from the Order of Superior Court entered at No. 1308 Pittsburgh 1984 on September 23, 1986, affirming the Judgment of Sentence entered July 25, 1984, by the Court of Common Pleas of Allegheny County, Criminal Division at No. CC 8303248A.
Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Zappala, J., filed a concurring opinion in which Flaherty, J., joined. Nix, C.j., filed a dissenting opinion in which McDermott, J., joined.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
The issues of concern presented by this appeal involve the ineffectiveness of trial counsel in a homicide case in 1) failing to request jury instructions that would require the jury to consider the cumulative effects of psychological and physical abuse when assessing the reasonableness of a battered person's fear of imminent danger of death or serious bodily harm with respect to a claim of self-defense and when assessing what constitutes sufficient provocation to support a conviction for voluntary manslaughter; and 2) failing to present expert testimony on the battered woman syndrome with regard to the characteristics of victims of psychological and physical abuse, where uncontradicted testimony reveals that the defendant was a victim of such abuse, and a jury, without the aid of expert testimony, is likely to render a verdict based upon erroneous myths concerning the victims of such abuse.
As to the second issue of ineffectiveness raised, counsel for appellant, Carol Stonehouse, stated at oral argument that the battered woman syndrome is not implicated in the case. Although appellant's counsel did not address the second issue in terms of the battered woman syndrome, this issue was addressed by amici, various organizations that provide services to the victims of domestic violence, in the brief which they submitted to this Court. Accordingly, we shall address this issue infra.
On the morning of March 17, 1983, appellant shot and killed William Welsh. The events culminating in Welsh's death are so bizarre that one would be tempted to dismiss them as the stuff of pulp fiction were it not for the corroboration of disinterested witnesses and for the fact that the literature on the "battered woman syndrome" is
replete with similar cases.*fn1
The chronology of events leading to Welsh's death are as follows. In March of 1980, less than a month after appellant completed her training as a police cadet and assumed her duties as a police officer in the City of Pittsburgh, appellant met Welsh. Welsh was married at that time and had served as a Pittsburgh police officer for approximately twenty years. Appellant had been twice divorced. The two began dating shortly after they met. Welsh often left his "beat" to visit appellant, and he assured her that other police officers would cover for him. Notes of Testimony at 803 (Aug. 30 -- Sept. 14, 1983) (hereinafter referred to as N.T.). Within the first three months of their relationship, Welsh broke into appellant's apartment once, N.T. at 803, and, shortly thereafter, made such a nuisance of himself by banging on her door late at night, that she called the police. N.T. at 804-08. That incident was treated as a "domestic" by the officers, who knew Welsh, and no police report was filed. N.T. at 1683-40. Appellant attributed Welsh's behavior to a drinking problem and continued dating him.
Welsh was possessive and demanding with respect to his relationship with appellant. By the fall of 1980, whenever appellant did not do what he told her to do, Welsh would let the air out of the tires of her car. N.T. at 813. This occurred as often as two or three times a week. Welsh admitted doing this, but insisted that appellant would never be able to prove he was doing it. N.T. at 814. Arguments began to occur with some frequency, and, after one such argument, Welsh was able to enter appellant's secured apartment building and place flowers outside her door. N.T. at 811-13. Welsh told appellant the flowers were for her funeral. N.T. at 813. Welsh also put sugar in the gas tank of appellant's car, N.T. at 817, and on many occasions
he would take appellant's car and move it, N.T. at 817, or he would pull the ignition wires. N.T. at 819, 1630. It was also in the fall of 1980, that Welsh began to harass appellant by telephoning her late at night. N.T. at 815.
Welsh justified his acts of vandalism and harassment by stating to appellant that she "deserved it." N.T. at 816. Welsh threw a brick through the back door of appellant's apartment when she was having a beer with a friend who had given her a ride on one of those occasions when her car was not running. N.T. at 820, 1631. Welsh told appellant she could not prove who had broken the window, so she did not file a police report, yet he fixed the window for her. Id. Despite the fact that appellant changed the locks on her apartment doors, Welsh was always able to get in and would take things, particularly personal phone books and papers with phone numbers on them. N.T. at 821.
Before the end of 1980, appellant no longer wanted to see Welsh, but if she refused to date him, he would "punish" her by letting the air out of her car tires. N.T. at 822. Welsh continued to enter her apartment when appellant was away and, in October of 1980, he broke in once when appellant was in her apartment. N.T. at 824. Appellant tried to eject him by brandishing a blackjack, and when Welsh hastily retreated, he broke his ankle. N.T. at 826. In spite of the fact that his injury did not occur on the job, Welsh bragged to appellant that his friends in the police department were able to secure workmen's compensation benefits for him. N.T. at 826.
Appellant told Welsh she did not want to be "tied up with a married man," N.T. at 828, and she dated another police officer briefly. Several times, that officer's car tires were flattened. N.T. at 828, 1589. In October of 1980, while Welsh was still on crutches, he responded to appellant's conversation in a bar with another man by wrecking appellant's apartment. N.T. at 830-39. Welsh threw food on the floors and walls, cut up appellant's clothes, tore the curtains from the windows, urinated on and sliced the bed, ripped the wires out of the television, and soaked appellant's
shoes and clothes in hot water. Appellant did not call the police immediately because she did not think she could prove that Welsh had damaged her apartment. N.T. at 832. Later that night, Welsh returned and appellant called the police. He tried to leave, but appellant wanted to make sure he would be there when the police arrived, so she attempted to subdue him with a blackjack, and she took his crutches from him. N.T. at 834-35. The police knew Welsh, so they did not make a report. They insisted that appellant serve as the arresting officer. N.T. at 836. Appellant wrote her own report and also approached Internal Affairs with the problem, with no result. N.T. at 837. Appellant filed a complaint with a magistrate regarding this incident. Upon appellant's return from the magistrate's office, she encountered Welsh coming out of her apartment, and he threatened to kill her. N.T. at 837. The magistrate knew Welsh, so Welsh was only required to stay away from appellant for thirty days, after helping her clean the apartment, and replacing her clothes and drapes and the money he had taken. N.T. at 839.
Following the brief hiatus in the "relationship" which occurred after appellant went to the magistrate, Welsh began calling appellant at least twenty times a day. N.T. at 843. Appellant felt sorry for Welsh, so she agreed to meet with him to make it clear that she did not want to see him any more. N.T. at 844-45. When appellant asked Welsh to take her home from this meeting, Welsh drove instead to a shopping center where he dragged her out of the car and then repeatedly attempted to run over her with the car. N.T. at 845-46. Failing to run over appellant, Welsh finally jumped out of the car and punched appellant, breaking her nose and rendering her semi-conscious. Appellant recalled seeing flashing red lights at the scene, but no arrest was made of Welsh at that time. N.T. at 1177-79. Welsh took appellant to the hospital for treatment. N.T. at 846.
In the summer of 1981, appellant's landlord did not renew appellant's lease because of Welsh and the arguments that were disturbing the other tenants. N.T. at 853. When
appellant prepared to move from her apartment, Welsh came in, broke a box of dishes, and left without saying a word. N.T. at 849. Appellant had not had much time to find an apartment, so she moved to an available unit that was one block outside the City of Pittsburgh. Id. Following the move, Welsh spent many hours in appellant's apartment when she was not there, and if he was not in the apartment, he would be parked outside the building. N.T. at 852. Appellant did not intend to remain there long, knowing that residency in the city is required of police officers, but her daughter, who was separated from her husband at that time, moved into appellant's new apartment with her baby. N.T. at 854. Appellant did not call the police to complain about Welsh's behavior because she was living outside the city limits.
Welsh left notes everywhere for appellant -- on her car, at work, at the spa, N.T. at 855 -- and he started to follow her everywhere she went. N.T. at 856. Welsh sent appellant a birthday card, which appellant tore up and threw in the bottom of a bag of garbage. Welsh broke into appellant's apartment, retrieved the card from the garbage, pieced it together and placed it on appellant's bed. N.T. at 856. Appellant saved the notes Welsh left for her and made notations regarding his acts of harassment. N.T. at 857. Welsh took the folder in which she stored the notes. Id. At trial, appellant introduced three notes into evidence, which notes Welsh had evidently overlooked. One was blank; one stated: "Have a nice day, asshole," N.T. at 858; and the third stated: "41-year-old bifocal bitch." N.T. at 859.
Welsh continued to break into appellant's apartment and on two occasions in the fall of 1981, appellant did call the police. The first time, Welsh entered appellant's room in the middle of the night. A physical scuffle ensued which threatened the safety of appellant's grandchild who was sleeping in the room. N.T. at 867. The same week, Welsh entered the apartment and dumped a bucket of ice water on appellant in the middle of the night. N.T. at 868. He left
and then returned with another bucket. Appellant's daughter called the police while appellant scuffled with Welsh. The police found the apartment door frame splintered from a forced entry and water spilled all over the stairs. N.T. at 1683. As the police were questioning appellant at the apartment, Welsh called to say he would break the windshield of appellant's car, and then he immediately did so. N.T. at 1686. Welsh was arrested and became combative. Id. Welsh kicked and struggled in the police truck and made lewd remarks. N.T. at 1687. He also threatened the arresting officer. N.T. at 1689. Appellant did not press charges against Welsh when she was reminded at the police station that she was not living within city limits. N.T. at 873. Welsh paid for the broken windshield. Id.
Welsh continued to harass appellant by filling her dresser drawers with water, soaking the clothes in her closet, and leaving beer bottles all over her apartment. N.T. at 873. One night, after appellant's daughter and grandchild moved out at the end of 1981, Welsh turned on the gas in appellant's apartment. Appellant became quite ill, but Welsh woke her in the morning with all the windows open, saying "I couldn't do it to you this time, you bitch. I'll do it the next time." N.T. at 862. He also took the keys to her car on this occasion and stole her car. N.T. at 861.
Welsh continued to follow appellant everywhere until she finally gave up going out socially during the first eight or nine months of 1982. N.T. at 874. Welsh always seemed to know where appellant was going, and, in fact, at one time he tapped her telephone. N.T. at 875. In January of 1982, Welsh entered appellant's apartment in the middle of the night and threatened to "slice up" appellant's face. N.T. at 877. When asked if she had done anything to provoke this attack, appellant replied, "No. I wasn't going out. I was trying not to provoke him. That's why I quit going out, because everything I did, I didn't do nothing right. Couldn't do nothing right." Id. The same night, Welsh put a gun to appellant's head and threatened to blow her brains out. Id. Appellant was so terrorized by Welsh that she
fled early one morning in January of 1982, to her sister's home, certain that Welsh was going to kill her. N.T. at 924, 1556. Welsh called appellant there day and night and showed up at the door. N.T. at 927, 1558-65. He cursed and threatened appellant's sister. N.T. at 1559. Appellant did not want to further inconvenience her sister's family, so when Welsh took appellant's car and moved it back to her apartment, she reluctantly returned after telling her sister about her life insurance policies and bank accounts. N.T. at 1566.
Welsh continued to follow appellant everywhere, N.T. at 878, and he continued to enter her apartment at night. At times, appellant would awaken and find Welsh crawling on her bedroom floor. N.T. at 880. Welsh continued to sabotage appellant's car, flattening tires, tampering with the windshield wiper mechanism, and taking the car and moving it. N.T. at 880-81. It was also in January of 1982, that Welsh followed appellant when she went to her son's high school basketball games. N.T. at 929, 1583-85. Welsh called appellant a "bitch" and a "slut" and told her he would embarrass her in front of her son. N.T. at 930, 1583. Appellant's ex-husband testified that the tension between Welsh and appellant was palpable at these times, and he interceded once on her behalf. N.T. at 1585.
In May of 1982, appellant moved to the Mt. Washington section of the City of Pittsburgh. She did so to be able to report Welsh's acts of harassment to the police. N.T. at 882. Appellant warned her landlord that it was possible there would be trouble from Welsh. N.T. at 883. Immediately after the move, Welsh began driving his private van vehicle continuously around the neighborhood. N.T. at 884. By June of 1982, Welsh returned to his more destructive behavior and kicked in the back door of appellant's apartment, accusing appellant of having affairs with other men. N.T. at 885. Welsh also kicked in the front door to appellant's apartment. This was done numerous times according to appellant's landlord. N.T. at 1451. Welsh's note writing, his phone calling, his damaging of appellant's vehicle,
and his banging and kicking on appellant's doors continued through the ...