*3 JONES, J., Bеfore EAGEN, O’BRIEN, C. ROBERTS, POMEROY, MANDERINO, NIX and JJ.
OPINION NIX, Justice.
This arises out of the death appeal of one Paul shooting Williford January John Appellant Black was arrested thereafter and immediately charged with murder. Following trial before a in the Court jury of Common Pleas, Black was Philadelphia County, convicted of murder of degree. second Post-trial were motions argued denied and was sentenced to period imprison- ment not less than five nor more than in the twenty years state correctional institution at Graterford. This direct ap- peal followed.1 trial,
At time of appellant did not that he deny shot decedent but asserted self-defense. It is now argued trial court erred in refusing to to hear permit two witnesses, defense and a psychiatrist who psychologist, would testified the state concerning of mind of at the time of the incident in order to the claim self-defense. we support Although agree the proffered evidence would have been relevant ato claim self-defense, Light, 288 (1974), A.2d the exclusion of that evidence in this case *4 not Rather, was reversible error. we cоnclude that even had the evidence admitted, been the record failed to establish as a matter of a law valid claim of self-defense.
The adduced the by Commonwealth was as follows. 10, 1974, On the evening January was appellant at his home on Juniata in Philadelphia Street with his pursuant Appellate 1. Jurisdiction in this Court is to the Juris- Court Act, 1970, July II, 202(1), diction Act of P.L. No. art. § 17P.S. §211.202(1) 1976-77). (Supp. wife, Black the mother Ruth Black. Mrs. was law common decedent, Williford, wife of who resided the on Lillian Mrs. Philadelphia. Williford tele- 21st North Street P.M., 7:00 at evening approximately mother that her phoned conversed, informed appellant had his briefly they and after Appellant Mrs. Williford. speak he wished wife that to the decedent. Mrs. and asked speak the telephone took on the conversation an to listen to upstairs went Williford son 14-year-old the decedent’s also and telephone, extension They both testified extension. on a basement listened in heard They appellant “drunk.” sounded appellant here, him, come I’ll tell “If down you at and decedent curse for waiting you.” I’ll shoot I’ll you. the spot. kill on you John,” said, “Now testified that decedent further They left on his coat and put the telephone, then hung up P.M., 7:30 at departure approximately Following house. police. Williford telephoned Mrs. arrived at the address appel- officers police
When the near on sidewalk lying lant found deceased they The was curbline, few feet from his car. between body adjoin- 1851 Juniata and the at Street property appellant’s sitting Appellant residence at 1853. ing neighbor’s his hand. holding gun of his front porсh the top step “I replied, happened officer asked what a .22 weapon, over his calibre handing shot him.” After officer, was arrested taken to revolver, to the for Building questioning. Administration the Police examiner testified that dece- medical Commonwealth’s which entered his .22 calibre bullet dent died from single chest the front. from in sharp account of the incident stands con-
Appellant’s Appellant trast to that Commonwealth. presented by with him one month testified the decedent had argued made shooting concerning appel- before the statements Appellant was seeing. lant a woman whom decedent be (Black) Mr. Williford because enraged testified that It was married. lady that Williford told same the decedent initiated the argu- further testified that *5 52
ment on telephone over the evening the shooting. and, The appellant, decedent threatened despite appellant’s entreaties, that he stated down to “coming settle it on the street.” After Black hanging up, stated that he He “mixed and excited.” feared up cоnfrontation, and to bring instructed his wife their around to dog the front of the house. He then stood in the open front doorway arrival. minutes, await Williford’s Within the decedent house, of the pulled jumped front out of up his car and ran while into toward The reaching pocket.2 decedent’s allegedly actions frightened appellant, and response, gun Black which grabbed family on kept door, of the radio near front it in top decedent’s pointed direction hauled him.” off and shot After “just firing shot, fatal, one sat which down on the provеd to await arrival porch Williford, of the authorities. bullet, upon being by collapsed struck on the sidewalk near the curb.
The definition of is set statutory self-defense forth in the New Code, 6, 1972, Crimes Act of December P.L. No. 1482, 1, et 18 seq., 505(a) Pa.C.S. 501 et seq. § Section § specifically provides:
“The use of force or toward another upon person justifiable when the actor believes such force is for necessary him- immediately purpose protecting self against the use of unlawful by force such person occasion.” present of the defense operation of self-defense is limit ed however, 505(b)(2) proscribes Section by use force under deadly those circumstances “the except where actor believes that such force is necessary himself protect ” death against serious . . . bodily injury Moreover [or] the word “believes” as used in above-quoted both subsections is defined to mean believes” “reasonably pursuant to Section also, 501. See v. Walley, Commonwealth 466 Pa. 353 A.2d (1976); 396 Commonwealth v. Cropper, unopened medical Cоmmonwealth’s pocketknife examiner testified that an pocket. silver was found in decedent’s Bamber, 216, 344 (1975); A.2d and as inter statute Thus, as provided (1975). A.2d *6 the defense of law,3 to establish our case through preted free was a) slayer shown that it must be self-defense difficulty continuing or in provoking fault from reason must have that b) slayer in the slaying; resulted or of death danger imminent he was in that ably believed to use necessity a there was harm, and great bodily therefrom; c) to save himself in order such force to avoid the retreat or to any duty not violate did slayer 598 155, 360 A.2d v. Myrick, 468 Pa. Commonwealth danger. supra. v. Cropper, Commonwealth (1976); to prove on the defendant there is no burden While that before nevertheless self-defense, required it is claim of trial, there must in issue at is properly a defense such such a source, to evidence, justify from whatever some jury, before the is properly Once the finding. question rea beyond to prove the Commonwealth upon burden is acting was not in fact the defendant sonable doubt Common Walley, supra; v. self-defense. Commonweаlth v. Cropper, supra. wealth all convinces us that instant record review of the
Our
have not been presented.
self-defense
elements of
requisite
a basis for a
the evidence fails to provide
Specifically,
reasonable belief that
entertained a
finding
in order to
to life
dangerous
to use force
required
he was
all the evidence in a
Restated, accepting
himself.4
protect
is no reasonable
there
appellant,
most favorable
posture
force was warrant-
that deadly
frоm which to conclude
basis
fired.
the fatal shot was
ed at the instant
prior
merely
this
part,
codified the
law of
3. For the most
Code
529,
Cropper, 463 Pa.
345
v.
See Commonwealth
Commonwealth.
McComb,
Accord,
462 Pa.
(1975).
v.
Commonwealth
A.2d
Lowe,
A.2d
(1975);
v.
Appellant admits that he his brought watchdоg decedent; front while porch awaiting gun was within *7 reach inside the just doorway. Upon decedent, seeing Black seized the In so gun fired. he doing ignored reasonable him, available e. alternatives g., ordering victim to halt, warning him that he (Black) a possessed weapon or to ascertain Williford’s action. attempting intended of Any these could have been options safely without in pursued the risk of creasing harm Black. Under these circum stances, we find that the of use force was deadly unwarrant ed. we as a Accordingly, find mаtter lawof defense of self-defense was not properly before jury, and therefore the failure to permit proffered psychiatric evidence not a basis that would justify reversal of the judgment of sentence.6
5. The
fails to
record
disclose the exact measurement of the distance
place
between
standing
where
when he fired the
projectile.
shot and where the victim
when
struck
question
disposes
argument
6. Our
resolution
this
also
of the
presented
support
as
a matter
law the
of this
evidence
сlaim of
required
judgment
self-defense
of sentence
arrested and
However,
appellant discharged.
we note
if
that even
there had been
may
supported
self-defense,
finding
a
if
believed,
disparate
the resolution of the
versions of the events sur-
rounding
killing
question
credibility
been
would have
for the
Lowe,
jury.
supra;
Zapata,
Commonwealth v.
Commonwealth v.
322,
(1972).
447 Pa.
Appellant also that the trial court suggests erred strik- from the ing juror sworn on the petit jury grounds that she was the sister of a defense witness. The record estab- lishes that following of the presentation Common- evidence, wealth’s the defense witness, called its first one Della Morris. Ms. Morris worked at the bar where appellant been allegedly drinking prior to the incident. The witness was to that she served testify appellant drinks until he became inebriated. When the witness was called to the Williford, 7. On direct examination Lillian wife of the deceased testi- (appellant’s wife) fied that she had called her mother on the tele- *8 phone speak During appellant with her. the conversation took the phone spoke briefly and with the witness. When asked to relate the conversation between herself and defense counsel raised a general objection, Following which the court overruled. her re- sponse the witness was then asked what conversation she subse- quently overheard objection between and decedent. No answering question jury. was raised to the witness that for the Nor objection question was an raised when the same was asked of son, Williford, decedent’s Paul who also overheard the conversation. posture objection interposed of the record at the time the being satisfies us that the court’s attention was not directed to the alleged improper interception being of the conversation which is now upon. during post-trial relied That claim was first articulated mo- tions. 56
stand, one of the the jurors informed court Ms. that Morris was her sister. A out conference ensued of the hearing of the during juror questioned jury by court and counsel. of objection Over the the juror defense was then It is now dismissed. contended that this constitut- ed an of abuse discretion and of his deprived appellant right to a trial a of his own selection. We disagree. juror a is within discharge the sound discre tion of court and determination will not be reversed absent abuse palpable discretion. Commonwealth 294, v. 446 285 Jennings, Pa. A.2d 143 (1971); Common Pasco, v. Pa. 439, wеalth 322 2 736 A.2d Common (1938); 539, wealth Pa. A. Bentley, 287 135 310 We (1926). that this even recognized discretion exists after the jury has been impanelled juror sworn. Commonwealth v. Saxton, 438, 353 (1976).8 A.2d 434
In
case,
the instant
the trial judge dismissed the
juror as
precautionary measure to insure an impartial
trial,
influences,
free of
outside
avoid
appearance
While we
impropriety.
recognize
relationship
juror
not,
matter
witness does
as a
of law disqualify
see
ex
e.
rel. Fletcher v.
juror,
g.,
Ca
vell,
134,
57 of defendant considering rights the the we are ble whether we these recognize While the interest of the state. or specula- degree dependent upon are some to considerations or bias tion, prejudice of the recognition possibility the relationship certainly justified close from such a resulting in to removing of the court this assure juror and the action Louisiana, Turner v. fairness is reasonable.9 Cf. obviously 546, 13 (1965); L.Ed.2d Common- S.Ct. U.S. Stewart, 303 (1972). 295 A.2d wealth v. final is that the court contention trial failed to Appellant’s the use concerning impeachment instruction give timely facts establish the last pertinent evidence. witness the impeach in the trial was called Commonwealth to the wife appellant’s by introducing prior her incon- credibility at police statements made the the time the sistent Defense, requested counsel an instruction that arrest. was to be considered for testimony impeach- rebuttal only ment but not as direct substantive evidence. The purposes court the basis that the request request denied not since he did know what the evidence premature would counsel Following testimony, establish. defense re- motion newed his for instructions. When this cautionary he for a was refused moved mistrial was also denied. itWhile for the court may ordinarily preferable cautionary concerning immediate instructions rebut give we not so in tal do believe failure to do testimony, noted, error. As instant case constituted previously the final evidence testimony rebuttal presented morning, charged case. The the trial court following special At the conclusion he drew charge jurors. the testimony question by stating: attention to testimony. rebuttal This presented “The Commonwealth of a impeach credibility offered testimony was the last who appeared defense witness. That witness wife a statement of the defendant. given by that read It noted a defendant is not entitled to the services of is to be Fisher, any juror. particular (1972). A.2d 262 58' was offered -the solely impeach credibili- *10 of defense You to
ty the witness. are not consider the rebuttal evidence as direct evidence but are to you con- sider only it evidence.” impeaching This of the was part charge adopted verbatim from the points submitted defense counsel. It and accu- concisely to the rately explained jurors limitations imposed on their consideration of the evidence question. Moreover, requested no appellant further instruction and indicated he was with satisfied that of portion the charge. Under the circumstances herein we presented, find no prejudice to appellant. of
Judgment- sentence affirmed. JONES, J., former C. did not decision of participate this case.
, MANDERINO, JJ., ROBERTS filed dissenting opin- ions.
ROBERTS, Justice, dissenting. holds that majority was denied the properly to present evidence that he opportunity believed force he used was to himself there necessary protect because was no evidence appellant’s that belief was reasonable. I cannot agree.
, If belief appellant’s was unreasonable he be convict could ed of but voluntary manslaughter,* might still a valid * (1973) provides person 18 Pa.C.S.A. that a who § commits an knowing killing intentional or killing an belief under unrеasonable that the necessary protect guilty voluntary was himself is man- slaughter. Appellant request voluntary did not an instruction manslaughter, but this constitute of a claim does not a waiver that killing Appellant’s committed malice. without belief that he acting might negate in self-defense serve to malice. Because crime, might negate appel- this evidence serve to an element of the belief, though lant was entitled introduce evidence of his even prove appellant guilty might evidence of another crimе. If there is a appellant might guilty concern found that not murder where guilty voluntary manslaughter, the evidence indicates that he request voluntary an Commonwealth should instruction on man- slaughter. example, require For we not a murder defendant do his story. if credited jury charge, a murder defense to if unrea even necessary, force was belief Appellant’s was commit the killing convince might sonable element of the an malice, negating thereby without ted of murder. crime I dissent.
Accordingly, Justice,
MANDERINO, dissenting. the dece- he was “frightened” by testified Appellаnt to support In order shooting. to the actions just prior dent’s self-defense, place attempted claim of These jury. witnesses before two expert Leavitt, Psychologist Chief were Dr. Albert witnesses Kool, Pleas, Dr. Kenneth *11 and of Common Court Philadelphia ap- had examined Both D., a psychiatrist. M. professional to testify were trial, prepared and both to prior pellant time of the mind at state of concerning appellant’s placed to the offer of proof According shooting. counsel, Dr. Leavitt would trial by appellant’s record from suffered was and pathological that appellant testified time due to his accrued over deficiencies organic diet; Dr. also to perhaps poor intake and alcohol heavy that appellant paranoid would have stated Leavitt look for actively that he would not but overly suspicious, threatened, however, If he were trouble or confrontation. and he would would be heightened, condition his paranoid out “concrete” and seeking posture, a defensive assume himself, to seek- opposed as defending means of “tangible” Dr. the authorities. from a third or party assistance ing diagnosis. Dr. Leavitt’s have corroborated Kool would psychiatric of these two of the testimony The purpose a determination making aid the jury was to experts The shooting. time of the of mind at the state appellant’s help jury designed testimony psychiatric may aggravated he introduce request assault before an instruction on too of the victim. So did not cause the deаth that his action evidence here, voluntary request require man- the defendant to we cannot may that he be- slaughter introduce evidence instruction before he necessary protect life. lieved his action was leading up of the events perception appellant’s understand appel- understanding on that and based shooting, to the or not whether state, to determine mental lant’s subjective the circumstances. under reasonably acted this belief whether defendant’s to decide “It is for based on must be a determination Such was reasonable. perceived the defendant circumstances the facts and psychiatric to do because unable were This they them. of mind and state the defendant’s concerning and circumstances of the facts his perception its effect on withheld shooting immediately preceded v. 458 Pa. at Light, jury.” from the of Manderi- (Dissenting Opinion at 295 340-341, 326 A.2d J., Nix, J.) Roberts, no, J., joined by some case is not whether in this issue presented The a human but whether acted reasonably being unreal perfect of the issue stаtement proper reasonably. acted being beings human its resolution. Sane necessary .proper with to situations reasonable reactions in their greatly vary therefore, should be The jury, are confronted. which they defendant. as to a particular with the decision entrusted ascertained as situation cannot be of a justice particular law. matter of 328, 340, 341, Light, As stated Commonwealth Manderino, (1974) (Dissenting Opinion 326 A.2d *12 Roberts, J., Nix, J.): J., joined by where* two different “It situations easy imagine in their could, subjective because differences people ways react in different totally states of mind ‘reasonably’ who, confronted one example, the same stimulus. For reacts in terror because dog, on a sidewalk by growling (based animals, is no less reasonable fear of of a subjective that the in his belief them) on the facts as he perceives who, years because of attack than another is about to dog in handling experience a veterinarian and training them) the facts as he perceives (based sees dogs, in original.) danger. (Emphasis there is no
61 the circumstances as must consider jury therefore the reasona- perceived by determining the defendant when bleness of the that he was in imminent defendant’s belief of death evi- danger or serious harm. bodily Psychiatric dence as to a defendant’s state of mind immediately prior is relevant under- killing jury’s because it aids the of the standing defendant’s of the circumstances perception preceding the slaying.
In Commonwealth, it was Murray (1875), Pa. said,
“It is not that a man shall necessary actual imminent life, or peril harm great bodily before he may slay assailant. It is sufficient if in faith he good has a reason- able belief founded the facts as upon to him they appeared at the time, that he is in imminent even peril, it though should afterwards that he appear was mistaken.” (Em- phasis added.) should decide the reasonableness of defendant’s
belief that he was in imminent of death danger or serious harm. The bodily however, majority, that the says exclusion of relevant evidence such as that offered here was not error because, even if the psychiatric had been admit- “ ted, . . . thе record failed to establish as a matter of law a valid claim of self-defense.” (Majority opinion at p. 50.) I dissent.
The majority’s analysis implies that the defendant in a
homicide case must “establish” a self-defense claim. Our
recent cases
indicate
clearly
that once the
possibility
defense of self-defense has entered the case (regardless of
the source of that
possibility),
prosecution must prove
beyond reasonable doubt that the accused was not acting
in self-defense at the time of thе
slaying
order for the
conviction to be sustained. Commonwealth v. Walley, Pa.
a matter of law a valid claim of self-defеnse . . . therefore misconceives the nature of the problem. The question which must be answered is whether the prosecution has established beyond reasonable doubt the defend- ant was not in self-defense at the time acting the homicide was committed. Evidence of the defendant’s state of mind is relevant to the jury’s and, determination of that issue conceded its majority, exclusion is therefore error. Contrary to assertion of the majority, however, exclusion of the evidence at issue the instant case cannоt we, be considered harmless because as an court, appellate cannot reasonable doubt that say beyond would have arrived at the same result had heard it. they was such that it could have proffered created a reasonable in the doubt collective mind as to jury’s whether had established all prosecution the elements of the have, a reasonable doubt. It could for charge beyond exam- created a reasonable doubt as to whether ple, malice, with if he acted for believed he was imminent he have It danger, could not acted could also maliciously. created reasonable doubt as to the claim prosecution’s that such a belief was unreasonable under the circumstanc- Furthermore, es. it had relevance concerning question *14 acquit by allowed the and could have of provocation, to whether appellant, doubt as a reasonable creating incident provoked prosecution, claimed in the slaying. resulted of sen- judgment I would reverse the
For these reasons new trial. and remand for a tence
Decided