Where husband and wife have an equal right to occupy their home, does the wife have a duty to retreat from the home, if safe retreat be possible, rather than use deadly force against her husband, at whose hands she fears death or seriоus bodily injury? We conclude that she does not. Because the jury was incorrectly instructed on this point, we reverse the judgment of sentence imposed upon Appellant, Frances Derby, following her conviction of voluntary manslaughter in connеction with the shooting death of her husband, Robert Derby (“Husband”), and remand for a new trial.
Husband was killed on November 1, 1993, following an altercation in the basement of the couple’s home. According to Appellant, Husband threatened to kill her and then wеnt upstairs. Appellant thought she heard Husband enter his bedroom, where she knew he kept a gun. Although she could have left the house from the basement, Appellant decided not to do so because she wanted to get her car keys, which were upstairs in the kitchen, in order to drive to a friend’s house. *103 Accordingly, Appellant picked up a loaded revolver which Husband kept in the basement and proceeded cautiously up the stairs, cocking the gun as she went. As she came around the kitchen door, she saw Husband sitting in a chair with his hand on or near a revolver. Appellant fired six shots, killing Husband.
At Appellant’s trial on homicide charges, defense counsel asked the Court of Common Pleas of York County to instruct the jury that Appellant hаd a duty to retreat from her home if, and only if, she had been the initial aggressor. The court rejected the request, instructing the jury instead that because Appellant and Husband had an equal right to be in their home, Appellant had a duty to retreat from thе home if she knew that she could do so with complete safety. During its deliberations, the jury asked that it be furnished with a written copy of the court’s instruction on the elements of self-defense. Because written jury instructions are not permitted in Pennsylvania, the сourt repeated the instruction orally. The jury then found Appellant not guilty of first degree or third degree murder, but guilty of voluntary manslaughter. Appellant was sentenced to five to ten years imprisonment, post-sentence motions were filed and denied, and this appeal followed.
When presented with a claim that the trial court erred in charging the jury, we must determine whether the court committed a clear abuse of discretion or an error of law which controlled the outcome of the case.
Stewart v. Motts,
At common law a defendant who sought to prevail on a claim of self-defense was required to demonstrate,
inter alia,
that he or she had not violated a duty to avoid the danger at
*104
hand by retreating.
Commonwealth v. Johnston,
[t]he judge, ... in charging the jury, stated as an essential ingredient of justifiable killing in self-defense, that the [defendant] must have reasonably believed that he had no other means of escape from death or great bodily harm____The [defendant], it is true, had a right to be in the house where he was, but so had the deceased---Neither had any right to eject the other, and when the struggle between them took place the ordinary rules as to self-defense were alone applicable. Rights of a householder against a violent intruder have no relevаncy [in such a situation].
Id.,
Since June 6, 1973, the effective date of the Crimes Code, claims of self-defense have been governed by section 505 of the Crimes Code, 18 Pa.C.S.A. § 505 (“Use of force in self-protection”). For the most part, section 505 codifies thе common law of Pennsylvania with regard to self-defense.
Commonwealth v. Walley,
*105 [t]his section is derived from Section 3.04 of the Model Penal Code,[ 2 ] and makes no substantial change in existing law. The intent of this section is to codify existing case law pertaining to “self-defense” and to cover in a single rule the law governing the use of defensive force against both attack and in crime prevention.
With regard to self-defense when attacked in one’s home, subsection 505(b) рrovides as follows:
(2) The use of deadly force is not justifiable ... if:
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating ..., except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial аggressor or is assailed in his place of work by another person whose place of work the actor knows it to be[.]
18 Pa.C.S.A. § 505(b)(2)(ii)(A).
The Official Comment’s expression of intent notwithstanding, it is immediately apparent that subsection 505(b)(2)(ii)(A), on its face, works a substantiаl change in the law of self-defense: no longer is a person obliged to retreat from his or her dwelling when assailed by a person who has an equal right to be there. This subsection is identical to the analogous provision of section 3.04 of the Mоdel Penal Code, upon which section 505 was based. As explained by the American Law Institute, drafter of the Model Penal Code, in the Explanatory Note to section 3.04, the Institute considered
whether the right to stand one’s ground should be preserved when the attack is by a co-dweller or co-worker. The proposal originally submitted to the Institute did not extend the exception in either instance; a wife was thus compelled to retreat from an attack by her husband in their common home (if shе knew she could do so with complete *106 safety, of course), as was one partner from an attack by another partner at their place of work. The Institute voted [in 1958] to require retreat from attacks at one’s place of wоrk in such a context, but not from attacks at one’s dwelling. The language of Subsection (2)(b)(ii)(A) [of section 3.04] states that position.
(Footnotes omitted; emphasis added.) Curiously, however, the summary of existing case law which is set forth in the Official Comment to subseсtion 505(b)(2)(ii)(A) of the Crimes Code includes the following:
A person is not required to retreat if he is attacked in his own home. Commonwealth v. Fraser, [supra ]. But where the deceased and the defendant both had a right to be in the home where the killing occurred, the ordinary rules as to self-defense are applicable. Commonwealth v. Johnson, [supra ].
The Supreme Court addressed the meaning of subsection 505(b)(2)(ii)(A) in
Commonwealth v. Eberle,
[t]his portion of the statute represents a change from the prior law. Previously, one had no duty to retreat from one’s dwelling, even if retreat could have been effectuated with safety, unless the retreat was from a member of the same household who had an equal right to be in the dwelling. Commonwealth v. Wilkes,414 Pa. 246 ,199 A.2d 411 [, cert. denied,379 U.S. 939 ,85 S.Ct. 344 ,13 L.Ed.2d 349 (1964) ]; Commonwealth v. Fraser, [supra ]; Commonwealth v. *107 Johnson, [supra]. In the above statute that standаrd is adopted for a place of work but not for a dwelling. The actor therefore is not required to retreat from his dwelling.
Id., 474
Pa. at 553-54,
Having set forth the principles of law governing its analysis, the Supreme Court then considered the evidence of record and concluded thаt the Commonwealth had failed to prove beyond a reasonable doubt that the appellant: 1) had not reasonably believed herself in danger of death or serious bodily injury, 2) had provoked the use of force, or 3) had been under a duty to retreat and could have retreated in complete safety. As for a duty to retreat, the court noted that “[this] requirement, as pointed out earlier, is not applicable if the [appellant] was in her dwelling,”
Id.,
The Commonwealth contends that the Supreme Court’s interpretation of subsection 505(b)(2)(ii)(A) “was not a part of
*108
the holding of
Eberle
” and, implicitly, that it is therefore dictum and may be disregarded. We disagree. As the Superior Court observed in
Manley v. Manley,
[w]here a decision rests on two or more grounds, none can be relegated to the category of “obiter dictum.” Nor is a decision of the court on a certain point dictum, merely because something else was found in the end which disposed of the whole matter. The fact that the same result may be reached by either of two rulings of a court does not make either “dictum.”
Id.,
The Commonwealth suggests that “if a narrow reading of the Eberle holding is rejected, then the intent of Section 505 — as evidenced in the official comments to it — is under *109 mined.” The responsibility for correcting any inconsistency between a statute and its comment does not lie with the Superior Court, however, but with the legislature. Accordingly, we conclude that the trial court’s instruction to the jury on the question of self-defense was erroneous.
Finally, the Commonwеalth contends that the error, if any, was harmless. We disagree. The facts of the case, together with the jury’s request that the self-defense instruction be given to them in writing, suggests that the instruction was crucial to the jury’s verdict. Where there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless.
Commonwealth v. Story,
Judgment of sentence reversed. Case remanded. Jurisdiction relinquished.
Notes
. In Johnston, the Supreme Cоurt extended the no-retreat exception to include situations in which a person is attacked in his or her place of business.
. Section 505 of the Crimes Code had no predecessor in the now-repealed Penal Code of 1939, 18 P.S. § 4101 ef seq. With regard to the Model Penal Code, see infra.
. Both
Eberle
and
Helm
were decided by five members of the Supreme Court, with three justices in the majority and two dissenting (in Eberle) or concurring in the result (in Helm). Because each of the opinions was joined by a majority of the participating justices, the opinions constitute binding precedent.
Commonwealth v. Mason,