Commonwealth v. Moore

• Decision Date: 19 September 1973
• Citation: 453 Pa. 302,309 A.2d 569
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. J. B. MOORE, Appellant.
• Court: Pennsylvania Supreme Court

309 A.2d 569

453 Pa. 302

COMMONWEALTH of Pennsylvania, Appellee, v. J. B. MOORE, Appellant.

Supreme Court of Pennsylvania.

September 19, 1973.

Warren R. Keck, III, Greenville, C. A. Moses Sharon, for appellant.

Joseph J. Nelson, Dist. Atty., Robert F. Banks, Asst. Dist. Atty Mercer, for appellee.

Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN Justice.

On December 10, 1970, the appellant, J. B. Moore, was convicted by a jury in Mercer County of voluntary manslaughter. Post trial motions were denied, and on June 29, 1972, Moore was sentenced to serve a term of imprisonment of not less than one and one-half and not more than three years in a state correctional institution. He was given credit for two hundred and nineteen days already served in the county jail. This appeal was then filed.

The prosecution followed the fatal shooting of one Ben Jones, in the living room of Moore's home, ^[1] Moore appeared intoxicated at the time ^[2] and no motive for the shooting was evident.

At the time of the occurrence, Moore's wife and Ernestine Kitt were in the kitchen of the house and did not witness the shooting. However, according to the trial testimony of Miss Kitt, who was called as a Commonwealth witness, both women rushed into the living room after hearing the shot and Mrs. Moore asked her husband, 'why did you shoot Ben?' to which Moore replied 'because he shot me.' ^[3]

Testifying on his own behalf, Moore stated the gun discharged accidentally when Robert Pritchett who was also in the living room at the time 'grabbed the gun.' He also said he did not realize Jones was shot until some time later.

Mrs. Moore was not called as a witness by either side, and in his summation the district attorney was permitted, over objection, to argue to the jury that Moore's failure to call his wife as a witness permitted the jury to draw the inference her testimony would be unfavorable to his defense. In his charge the trial judge also instructed the jury such an inference was permissible.

Generally, when a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person's testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. See McCormick, Law of Evidence, 534 (1954). See also Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972), and Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971). Accepting Mrs. Moore possessed information material to the issue instantly, the question remains, should this inference be permitted in a criminal case where the uncalled witness is the spouse of the defendant. We rule it should not.

In Pennsylvania a husband and wife are incompetent to testify against each other in a criminal trial except under certain limited circumstances, not relevant here. Act of May 23, 1887, P.L. 158 § 2(b), as amended 19 P.S. § 683. ^[4] Under the facts of the instant case, the operation of the evidentiary inference comes directly into conflict with the common law and the Pennsylvania statutory rule on incompetency of spouses. As far as we have been able to ascertain the last time this Court considered this question was in Commonwealth v. Weber, 167 Pa. 153, 31 A. 481 (1895), ^[5] and the Court therein ruled it was proper for the counsel for the Commonwealth to argue to the jury it might infer that if called the wife's testimony would be adverse to her husband. We have reconsidered the question, and now rule it was improper for the district attorney and the trial judge to advise the jury it could draw an adverse inference from the defendant's failure to call his wife as a witness, thus, we overrule Weber. In so doing, we recognize there is a split of authority on this question, ^[6] and a body of law which reaches a contrary conclusion to that reached herein; however, we view the rationale adopted today as the approach most consistent with the statutory law.

Our reason for so holding finds its genesis in the aforementioned statute. It is clear the purpose of the statute is to bar, either husband or wife, from testifying against the other, and this is a rule which is not waivable by the parties. ^[7] If the inference is allowed to operate, the whole purpose and effect of the statute would be negated. The statute by its very terms stops either spouse from adversely affecting a criminal case against the other; although it does allow a spouse to testify on behalf of the other. If the inference is allowed to operate, the very fact the spouse is not called adversely affects the other spouse. Thus, the protection which the legislature vested in the defendant-spouse would be completely eroded by the evidentiary inference. To hold otherwise, would be to give the spouse protection with one hand, and, at the same time take that protection away with the other.

Because of the foregoing ruling, we deem it unnecessary to reach the merit of the other asserted assignment of error.

Judgment reversed and a new trial is ordered.

JONES, C.J., did not participate in the consideration or decision of this case.

POMEROY, J., filed a dissenting opinion.

DISSENTING OPINION

POMEROY, Justice (dissenting).

I disagree that the Court erred in allowing the inference here complained of, but if there was error, it was patently harmless. I therefore respectfully dissent. These points will be discussed in reverse order.

I.

It will be useful to summarize the evidence in a bit more detail than does the Court. The homicide occurred in the living room of the home of the defendant-appellant, J. B. Moore. There were two Commonwealth witnesses. The first, a Robert Pritchett, testified that he accompanied his girl friend, Ernestine Kitt, to the Moore home where Miss Kitt had a hairdressing appointment with Mrs. J. B. Moore. He said that upon their arrival, Mrs. Moore began to arrange Miss Kitt's hair, working next to the stove in the kitchen, and that he, Pritchett, seated himself at the kitchen table just inside the doorway leading from the living room. A short time thereafter, Pritchett continued, a Benjamin Jones, the deceased, knocked at the front door, was admitted by Mrs. Moore, followed her back to the kitchen, greeted those present ('how is everyone doing'?), returned to the living room and took a seat. Pritchett then related that J. B. Moore, the defendant, apparently intoxicated, then entered the front door of his house, advanced towards Jones, raised a pistol, and shot Jones in the chest from a distance of one to two feet. Moore then walked toward Pritchett and mumbled, 'What are you doing here?' As Moore walked on past Pritchett, Pritchett noticed that Moore's left hand was bleeding. Pritchett, seizing the opportunity, grabbed the pistol and disarmed him.

Miss Kitt's testimony corroborated Pritchett's in all respects through the arrival of Jones. Not having had a view of the living room, she testified that she heard someone enter at the front, then heard a shot, ran into the living room with Mrs. Moore, passing Moore in the process, and discovered Jones, lying on the floor fatally wounded. She further related that Mrs. Moore asked her husband, 'Why did you shoot Ben?', and he replied, 'because he shot me.' Both Pritchett and Miss Kitt, however, heard only one shot. Defense counsel did not succeed on cross-examination in developing any line of impeachment of these two witnesses.

The defendant then testified. He said that he had taken the pistol from his car outside and intended to place it in the pocket of a coat hanging in the kitchen. While in the act of so doing, he related, Pritchett grabbed at the pistol, frightening Moore and causing him to jerk. The gun discharged, wounding Moore in the left hand. The defendant further testified that he was unaware at the time that Jones had been shot.

Mrs. Moore did not testify and was called by neither the Commonwealth nor the defendant. The Court, in its charge to the jury, gave an instruction which permitted the jury to infer, should they so desire, that had the defendant called his wife as a witness, her testimony would have been unfavorable to him.

It is clear that the jury rejected the defendant's account and accepted instead the account of the eyewitness Pritchett and of Ernestine Kitt. That account placed the defendant's wife in the kitchen at the time of the shooting and made her a witness to the same extent as was Miss Kitt. From the record it is manifest beyond doubt that it was the testimony of Pritchett and his girl friend that persuaded the jury that Moore was a murderer; that being the case, then the jury had Direct evidence of exactly what Mrs. Moore saw and did, and thus that she could Not substantiate Moore's account of an accidental killing. I can only conclude, accordingly, that the instruction on a permissible adverse inference to be drawn from the failure of Moore to call his wife, when measured against the testimony of Pritchett and Miss Kitt, had nothing to do with this conviction. If allowance of the inference was error, as the Court holds, it was harmless by any standard. ^[1]

II.

The Court's overruling of the decisions in Commonwealth v. Weber, 167 Pa. 153, 31 A. 481 (1895) and in Commonwealth ex rel. Haines v. Banmiller, 398 Pa. 7, 157 A.2d 167 (1959), ^[2] is, I venture to say, an example of dubious law made worse. This problem of witness competency which on the surface seems quite simple nevertheless has a rather involved background which must be delineated if the matter is to be understood.

I begin with a definition of terms. A witness is 'incompetent' or 'disqualified'...