*1
v. STONEHOUSE, Appellant. Carol Pennsylvania. Supreme Court Argued Sept. 3, 1989.
Decided March *3 Corbett, Defender, Nauhaus, John H. Public Lester G. Counsel, Stark, Jr., Div., Appellate Shelley Appellate Chief— Defender, appellant. for Pittsburgh, of the Public Office curiae, Philadelphia, amicus for Penn- Rudovsky, David Violence, etc. Against Domestic sylvania Coalition Eberhardt, Colville, Dep- L. Atty., Robert Robert E. Dist. Dist. Pitts- Atty., Dara Asst. Atty., DeCourcy, Dist. A. uty Pa., burgh, appellee. FLAHERTY, C.J., LARSEN, NIX, and
Before STOUT, ZAPPALA, McDERMOTT, PAPADAKOS JJ.
OPINION ANNOUNCING THE JUDGMENT THE
OF COURT LARSEN, Justice.* presented issues of concern appeal this involve the of
ineffectiveness trial 1) counsel a homicide case failing to request jury instructions that would require consider the cumulative effects psychological of physical abuse when assessing reasonableness of a person’s battered danger fear imminent of death or harm bodily serious respect with to a claim self-defense when assessing what constitutes provocation sufficient support a conviction for voluntary manslaughter; 2) failing рresent expert testimony on the woman battered syndrome regard to the characteristics of victims of abuse, psychological physical where uncontradicted tes- timony reveals defendant was victim of such abuse, and a jury, without the aid of expert testimony, is to render a likely upon verdict based myths erroneous concerning the victims such abuse.
toAs the second raised, issue ineffectiveness counsel Stonehouse, for appellant, Carol argument stated at oral battered syndrome woman is implicated not Although case. appellant’s counsel did address the second issue in terms syndrome, battered woman this by amici, issue addressed organizations various provide violence, services to the victims of domestic in the *4 which they brief submitted to this Court. Accordingly, we shall address this issue infra. the morning 17, 1988,
On of March appellant shot and killed William Welsh. The culminating events in Welsh’s death are so one tempted bizarre that would be to dismiss them as stuff pulp of fiction it for were of corroboration disinterested and for the witnesses fact that the literature on the “battered syndrome” woman is 18, reassigned January *This case was to this writer on similar cases.1 replete with as of to Welsh’s death are chronology leading
The events appel- than a month after follows. In March of less as cadet and assumed training police lant completed Pittsburgh, City officer in the police her duties as a that time and was married at met Welsh. Welsh approximately Pittsburgh police officer had served as had divorced. two twenty years. Appellant been twice often left his they met. Welsh began dating shortly after her that other and he assured appellant, to visit “beat” Notes of at Testimony for him. officers would cover 1983) referred to as (hereinafter Sept. (Aug. 30— relationship, their N.T.). the first three months Within once, at apartment N.T. into appellant’s Welsh broke of himself and, thereafter, made such a nuisance shortly night, police. at that she called the her door late banging on at incident was treated as “domestic” N.T. 804-08. That officers, Welsh, police report no knew by the who attributed filed. N.T. at 1683-40. Welsh’s be- dating him. continued drinking problem havior to a demanding respect with to his possessive Welsh was By the fall whenever relationship appellant. do, let not do he told her to Welsh would appellant did what N.T. at 813. This air of the tires .of her car. out or times a as often as two three week. Welsh occurred this, never insisted that would doing admitted but Arguments at 814. doing N.T. prove able to it. be and, after one such with some began frequency, occur to enter secured argument, Welsh was able her door. building flowers outside apartment place were for told flowers N.T. 811-13. Welsh put gas sugar N.T. 813. Welsh also her funeral. occasions car, many tank syndrome syndrome inas- as the battered woman 1. We refer to the subject in this in the literature on the much as it has been described See, Walker, (1979). recog- We e.g., Woman The Battered manner. nize, however, physical, are instances where victims that there may apply the rules men. We shall psychological abuse be sexual and syndrome as to pertaining to men as well women. *5 he appellant’s it, 817, would take car and move N.T. at heor pull would the ignition 819, wires. N.T. at 1630. It was in fall 1980, also began that Welsh to harass appel- by lant telephoning her at night. late N.T. at 815. justified Welsh his acts of vandalism and by harassment stating appellant that she “deserved it.” N.T. at 816. through Welsh threw brick the back door of apartment having when she was a beer with a friend who given had on her ride one of those occasions when her car not running. 820, was N.T. at 1631. appellant Welsh told she could not prove window, who had broken the so she did a police not file Id. report, yet he fixed the window for her. the fact Despite that appellant changed the locks on her doors, apartment always Welsh was in get able to would things, take particularly personal phone books and papers phone with on numbers them. N.T. at 821.
Before the end of appellant longer no wanted to see Welsh, if him, but she “punish” refused date he would her by letting the air out her car tires. N.T. Welsh continued enter apartment when and, away October of he broke in once when apartment. N.T. Appellant at 824. tried to him eject brandishing blackjack, and when hastily retreated, he broke his ankle. N.T. at 826. In spite the fact that did injury not occur the job, on bragged that his friends in the police department were to secure compensation able workmen’s benefits for him. N.T. at 826. told
Appellant Welsh she did up not want to be “tied man,” a married dated another briefly. times, officer Several that officer’s car tires were flattened. N.T. at October while crutches, Welsh was still on resрonded conversation a bar with another man by wrecking appel- apartment. lant’s N.T. at 830-39. on Welsh threw food walls, clothes, floors and cut up appellant’s tore the cur- windows, bed, tains urinated and sliced the ripped television, out of the wires and soaked appel- did not call and clothes hot water. lant’s shoes *6 think could did not she immediately she because police the at 832. her N.T. damaged apartment. had that Welsh prove the appellant called returned and night, Later that Welsh leave, to make appellant wanted He tried to but police. arrived, so she police he be there when would sure and she took his blackjack, him with a to subdue attempted The knew him. N.T. at 834-35. crutches report. insisted that Welsh, They make so did not they Ap- at 836. officer. N.T. arresting as the serve appellant Internal approached also report her wrote own pellant result. N.T. at 837. no with problem, Affairs with this magistrate regarding complaint filed a with Appellant magistrate’s from the return Upon appellant’s incident. out of her coming apartment, office, she encountered Welsh magistrate kill her. N.T. at 837. he threatened to away from Welsh, only required stay so Welsh was knew apart- her clean the helping after days, for appellant thirty money ment, drapes her clothes and and replacing N.T. at 839. he had taken. “relationship” which hiatus in the
Following the brief magistrate, to the Welsh went occurred after N.T. at day. times a began calling appellant twenty at least Welsh, agreed so meet felt for sorry Appellant him not want to see make it clear that she did him to asked Welsh to at 844-45. When any more. N.T. to a drove instead meeting, her home from this Welsh take her out of car dragged center shopping where car. to run over with the attempted repeatedly then appellant, finally to run Welsh Failing 845-46. over breaking her appellant, punched of the car and jumped out recalled Appellant semi-conscious. rendering her nose and scene, no but arrest flashing lights red seeing took 1177-79. Welsh at that time. N.T. at made of Welsh N.T. at 846. treatment. hospital did renew landlord In the summer of arguments Welsh and lease because at 853. When disturbing the other tenants. N.T. were appellant prepared to move from apartment, in, dishes, came broke a box and left without saying word. N.T. at 849. had Appellant not had much time apartment, find an so she moved to an available unit that was one block outside the Id. Follow- City Pittsburgh. ing move, spent many hours in appellant’s apart- there, ment when she was not and if he was not apartment, parked he would be outside the building. N.T. at 852. did not intend to long, remain there knowing that residency city is required of police officers, her daughter, but separated who was from her time, husband at that moved into appellant’s apartment new baby. with her N.T. at 854. Appellant did not call the *7 police complain about Welsh’s behavior because she was living city outside the limits.
Welsh left notes everywhere appellant for car, her at —on work, spa, at the N.T. at 855—and he started to her follow everywhere she went. N.T. 856. at Welsh sent appellant a card, birthday which appellant up tore and in threw the bottom of a bag garbage. Welsh broke appellant’s into apartment, retrieved the card from garbage, it pieced together placed on and it 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. trial, At appellant evidence, introduced three notes into which notes Welsh evidently had overlooked. One was blank; one asshole,” stated: “Have a nice day, 858; N.T. at and the third “41-year-old stated: bifocal bitch.” N.T. at 859.
Welsh continued into appellant’s break apartment and on two occasions in the fall of appellant did call the time, police. The first Welsh entered appellant’s room in of the A night. middle physical scuffle ensued which threatened the safety appellant’s grandchild who was sleeping the room. week, N.T. at 867. The same Welsh apartment dumped entered the and bucket of ice water appellant night. middle of the He 868. left daugh- Appellant’s bucket. then returned another with Welsh. scuffled with police appellant while ter called frame splintered door apartment found police all the stairs. N.T. at over entry spilled a forced and water police questioning As the were break the he would wind- say called Welsh apartment, car, so. immediately then he did shield combative. was arrested became N.T. at 1686. Welsh police in the truck and struggled kicked and Id. He also threatened the remarks. N.T. at 1687. made lewd press did not officer. N.T. at 1689. arresting reminded at against Welsh when charges limits. N.T. at living city station that she was within the broken windshield. Id. paid 873. Welsh by filling her dresser to harass Welsh continued closet, in her water, soaking the clothes drawers with her N.T. at 873. apartment. bottles all over leaving beer grandchild moved night, daughter One after gas on the appel- turned out at the end ill, quite but Welsh apartment. Appellant lant’s became open, saying all the windows morning woke time, I’ll you this bitch. do it you “I couldn’t do it keys He to her car N.T. also took the next time.” at 861. on this occasion and stole car. N.T. everywhere until she Welsh continued to follow *8 eight first or during the finally gave up going socially out always seemed to of 1982. N.T. at 874. nine months Welsh fact, and, time going, one where was know 1982, January N.T. at 875. tapped telephone. in the middle of the appellant’s apartment entered Welsh face. N.T. at up” appellant’s to “slice night threatened to this anything provoke asked if she had done 877. When I going I out. was attack, replied, “No. wasn’t out, I quit going him. why That’s trying provoke did, right. nothing I I didn’t do everything because night, put The same Welsh nothing right.” do Id. Couldn’t her brains and threatened blow gun head appellant’s so terrorized Welsh Appellant Id. out.
fled early one morning January 1982, to her sister’s home, certain that going Welsh was 924, to kill her. N.T. at 1556. Welsh called appellant there day night up showed at the door. N.T. at 1558-65. He cursed appellant’s threatened sister. N.T. at 1559. Appellant did not want to further inconvenience her sister’s so family, when Welsh took car and moved it back to her apartment, she reluctantly returned after telling her sister about her life policies insurance and bank accounts. N.T. at
Welsh continued to follow everywhere, N.T. at 878, and he continued to enter her apartment night. At times, appellant would awaken and find crawling her bedroom floor. N.T. at 880. Welsh continued to sabo car, tage appellant’s flattening tires, tampering with the wiper mechanism, windshield taking the car and moving it. N.T. at 880-81. It was also January of Welsh followed appellant when she high went her son’s school games. basketball N.T. at 1583-85. Welsh called appellant a “bitch” and a “slut” and told her he would embarrass her in 930, 1583. front her son. N.T. at Appellant’s ex-husband testified that the tension between Welsh and appellant was palpable times, at these and he interceded once on her behalf. N.T. at 1585.
In May of appellant moved to the Mt. Washington section of City of Pittsburgh. She did so to be able to report Welsh’s acts of harassment police. warned her landlord it possible there would be trouble Welsh. N.T. at 883. Immedi- move, ately after the began driving private his van vehicle continuously around neighborhood. N.T. at 884. By June of Welsh returned to his more destructive behavior and kicked of appellant’s back door apart- ment, accusing appellant of having affairs with оther men. N.T. at 885. Welsh also kicked in the front door to appel- apartment. lant’s This was done times according numerous landlord. N.T. at 1451. Welsh’s note writ- ing, phone his calling, damaging vehicle, of appellant’s *9 continued doors kicking appellant’s his on banging N.T. at 889. through the summer months. van they saw Welsh’s neighbors testified
Appellant’s they time driving apartment every the streets around the up them windows, wake looked out their and Welsh would shouting ob- pounding on doors regularly, appellant’s 102-04,139-41,154,1542-45. scenities at N.T. at appellant. apartment appellant’s view of Residents at locations within in homes his van Welsh sit near their testified that would apartment peer day appellant’s often at during 1573, were N.T. at 1578. through binoculars. told, it as, one witness was notified, nothing was done but Appellant’s 1575. N.T. at just a “domestic matter.” in frequently neighbor- also saw Welsh’s van landlord in day him one the basement hood, found N.T. at caught 1447. The landlord Welsh building. N.T. at of the binoculars, N.T. at with staring apartment at appellant’s stuck in the door pieces paper folded and saw hours. N.T. at 1457. apartment odd appellant’s jambs bold, attempted more Welsh July, growing In front “broad porch second floor climb onto locked herself Appellant 1442-46. daylight.” left, a gun. and armed herself with apartment leg fell and his off the broke way porch, and on crutches, While Welsh was still on again. N.T. giving her ride out of help a friend a decided permit city, her to leave the Welsh, who would not city. appellant’s vehicle. caught attempting to immobilize time, stole car At N.T. at 897. about another man at had danced with again, because report filed with lounge. N.T. at apartment of her found her car front police, and later N.T. at 899-900. one scratched. side with a woman plans made August get Erie, so she could just days friend to a few spend their All harassment. N.T. at 900. from Welsh’s respite discovery preclude made face-to-face plans were Welsh, made without drive to Erie was and the plans by *10 spotting Welsh. day beach, N.T. at 901. After a at the women left the motel to go lounge, to a and Welsh appeared highway on the as they pulled out of the motel parking lot. 902,1530. N.T. at He followed them to the lounge. N.T. at 902,1531. Welsh followed them to another lounge and then back to the motel where he sat his vehicle and watched 903, the room. N.T. at Cutting 1534. vacation, short their the women returned to Pittsburgh the day. next 904, escape 1535. There was no for appellant from this man, refuge. no safe September appellant filed charges harassment
against magistrate. Welsh with a N.T. at 905. At the hearing, witnesses testified breaking about Welsh appel- lant’s her, doors and following and appearing uninvited at social events to appellant which had been invited. Id. Welsh admitted harassing appellant and admitted breaking her nose. N.T. at 906. Welsh was to stay ordered away from appellant sixty time, days. At that appellant dated another man briefly. at gave N.T. 1550. Welsh estranged man’s name, wife appellant’s phone address and number and warned the man not to see appellant, saying “Remember, you got kids.” N.T. at 1552. Welsh also appellant followed and that man on a date and threatened appellant’s companion with a gun. N.T. at 1553. At the next hearing before magistrate November, 1982, charges were dismissed because Welsh had not been harass- ing appellant. N.T. at 906.
Appellant almost immediately began receiving phone calls again from calls, Welsh. N.T. at 907. During one she was told that Welsh subject was the of a protection from abuse order obtained wife. N.T. at He blamed this on appellant. N.T. at 909. At some time in job December Welsh left his on disability. N.T. at to appear Welsh continued appellant wherever went. Eve, 1982, N.T. at 912. On New Year’s went out with another woman friend. bought two bottle N.T. champagne, at and then threw two drinks face, 913-14, N.T. kill threatened to her. resi- fled to her woman friend’s N.T. at 914. into dence, forced his that residence way but Welsh on her. N.T. at 1487.2 spit hair and pulled road, car left, Welsh ran her off the took When car of her against her head inside glasses, beat Wait till you get “Wait till home. spit again, saying, ah 917. home.” N.T. you get to her she found that returned residence
When N.T. apartment. had and defiled her again wrecked 918-21, knife slashes There were seventeen 1429-37. *11 N.T. at 1455. water dam- appellant’s waterbed. another occupied by on the first floor aged apartment tenant, into the and the water flowed basement or torn off the Id. building. Drapes had been slashed 1430. and stuffed into toilet. N.T. at windows in the soaking clothes were bathtub with beet Appellant’s 918, 1431. Cleaning supplies, and hot water. N.T. at juice cream, lotion, potting food soil smeared all cold were walls, windows, floors, at rugs. mirrors and N.T. over the 918-20, off rods and racks were torn 1432-36. Curtain 1430, 1433, 1437. The baсk door was off its walls. N.T. at 921, 1438, emptied, closet was every hinges, at 1437. piece upset. Appel- of furniture N.T. every against report, pursue charges lant filed a but did not police her magistrate with the because Welsh convinced Welsh his friends he had been elsewhere that say would night. N.T. at 921. longer he no following appellant, continued but
Welsh “right His on the tailed her at distance. vehicle was car. N.T. at 922. The constant bumper” continued, and, if off phone calls took the phone hook, at at the door. N.T. 923. appear would Welsh work, and he would tell phoned continuously He her also to to. N.T. at 1669. her she had no house come home expecting a visit February She leave daughter begged her and grandchild. going to file Appellant’s friend called the who were report appellant’s friend insisted on it. N.T. until alone, her he but said he would continue hound her. N.T. visit, at 932. Just before the Welsh phoned appellant and threatenеd throw acid on her face. N.T. Totally at 936. distraught, appellant went to Welsh’s get residence to him to stop, laughed and he as she screamed that she could not his harassment any bear more. Id. Appellant ran out of Welsh’s apartment without her coat and keys. N.T. at 937. Welsh would not let her apartment, back and after a on the struggle steps, he sat outside in his van while she knocked on the door in vain. Because she freezing, appellant broke the door glass get purse. coat and N.T. at 938. Welsh called police, who filed report over the incident. Id. got into apartment whenever he
wished, always looking to if appellant see had a man with her. N.T. her, her, at 939. He continued to follow watch her, phone pound night. doors day Appel- Id. lant knew was “sick” and felt sorry for him even though call every phone die”; to her was the same: “You deserve to “You my you’re ruined life and going pay for it.” N.T. at 941-42. Appellant’s superior officer noticed that appel- lant became less talkative and in February seemed dazed and March of 1983. N.T. at 1676. Welsh was warned *12 appellant’s superior stay officer to away from appellant while she was as duty, cruising Welsh had taken to in his police van near the when appellant station working. N.T. at 1665-67. 16, 1983,
On March night the shooting, appel- before to lant drove a friend’s house. Welsh followed in his vehicle, tailgating appellant bumping into the rear of lights. her car at traffic Appellant N.T. at 944. and her lounge woman friend went to a and had a few drinks. there, appeared appellant Welsh so and her friend left and an went to after hours club. N.T. at 947. Appellant spoke with an old friend and briefly neighbor, Steve Owens. Welsh, who had followed to appellant the club and also who Owens, knew asked “Are appellant: you going to take him tonight, home slut.” N.T. at Appellant 953. took her 4 or in the at about shortly friend home thereafter woman for bed. prepare to apartment and returned to morning, uninvited, apartment went, to Owens Steve thereafter, the front door. and, began kicking shortly Welsh door, she go did not to the Appellant at but N.T. to do realizing “going that Welsh was upset, quite became 726-27, then 962. Welsh went something.” N.T. at on it. N.T. at kicking banging door and started back the back Knowing that Welsh would be able break holding gun at her side door, went the door appellant gun. in. There struggle let Welsh appellant, appellant but gun Welsh took the N.T. gun retrieve the from Welsh. at able to Owens were to be “wild- appeared testified that Welsh 970-80. Owens N.T. not “the that I had known.” at person and was eyed” left, seconds, Welsh and within immediately 731. Welsh car, N.T. window of through threw a brick to her son: “He neighbor to remark prompting N.T. at 146. today.” like he’s mad really looks get ciga- left to and Owens Appellant police, called the to arrive. N.T. at 984. for the rettes as waited they stood at appellant unlocked. As The back door was sink, point- in her kitchen suddenly appeared kitchen six inches of her face. revolver within ing Magnum a .357 die, going she was at 984. told N.T. get her hand him to kill her as she tried begged from her head. N.T. at 985. get away it gun on the didn’t He crazy. trial that “He was stated at I him like I never saw eyes. was in even know who bedroom, and into her backed that.” Id. Welsh of her head and her on the back tripped, when she beat kicked N.T. 987. Welsh gun. neck with the Appel- “done now.” Id. to tell she was and continued die still she would but lant toward Welsh convinced crawled *13 in the face. Id. shooting from her prevent him trying gun, suddenly to locate her was able Appellant N.T. at 989. disappeared.
Appellant knew would return because he always returned, so stepped out onto the back porch to look for him, caught not wanting be with her guard down. N.T. at 990. As she leaned over the railing, appellant saw Welsh ground aiming on the gun below his at her. Id. Believing shot, that she heard a gun fired her twice. Id. One of the top bullets entered Welsh at of right the his clavicle, shoulder and exited near his severing a major artery.3 N.T. death, At the time of his Welsh’s blood alcohol was .14. level N.T. at 212.
Appellant recalled little following what occurred the records, shooting. According police police she called the twice after her discharging gun, and on was found her porch hysteria a state of when police the arrived. Welsh was found dead van fingers beside his with the of his left hand wrapped around grip trigger the of a Mag- .357 num revolver that had not been Appellant fired. received warnings immediately police Miranda after officers kicked door, front which she had open been unable to Appellant them. consistently police, stated to the “He shot at me. I Appellant shot at him.” had difficulty, however, describing what had precipitated shooting as police attеmpted officers sequence reconstruct events by walking through appellant’s apartment with her discussing her how shooting might have oc- curred. Appellant did learn that Welsh was dead until she was enroute vehicle the Public Safety Building Pittsburgh. downtown charged with one count of homi- criminal cide. retained counsel Privately filed motion to suppress by appellant scene, statements made which motion was denied the Court of Common Pleas 14, On Allegheny County. September convict- back, argues Commonwealth that Welsh was shot in but the pathologist performed autopsy body forensic who Welsh's entry top testified that the wound was located inches 12!/t right posterior Welsh’s head and inches to the of the midline of 6Vi body. description places entry top This wound at the right Welsh’s shoulder.
57 Motions for degree. third of murder of the ed denied, and were judgment arrest new trial impris- years to fourteen sentenced to seven office defender’s 25, public 1984. The July on onment pursuing purposes represent appellant appointed Superior Court September on appeal, sentence, 517 Pa.Super. 358 the judgment affirmed A.2d 540. arise merit herein within presented
The issues of counsel.4 ineffectiveness of trial claims of the context of there is of counsel is shown where The ineffectiveness claim, counsel the course chosen underlying merit basis, and the defendant shows a reasonable does not have Pierce, 515 Pa. A.2d v. 527 Commonwealth prejudice. (1987). 973 ineffec counsel was asserts that her trial
Appellant instruction that would request jury failing tive of psy- cumulative effects to consider the require jury They Court’s review. issues for this raises six additional are: EVIDENCE ESTAB- THE COMMONWEALTH’S WHERE ALL OF BABBLING, NOT LIS- WAS AND THAT THE SUSPECT LISHED READ, WERE MIRANDA RIGHTS WERE TENING WHEN THE TO HER? RIGHTS LEGALLY ISSUED THOSE FAILURE TO OB- ADMITTED DOES THE COMMONWEALTH’S VIOLATE WAIVER OF MIRANDA RIGHTS TAIN AN EXPLICIT V BUSSEY? COMMONWEALTH AND AD- THE PROSECUTOR KNOWINGLY IS IT ERROR THAT TESTIMONY, SOLELY TO IMPEACH PUT ON FALSE MITTEDLY THE WITNESS? BRICKER, PROSECU- V DOES THE UNDER COMMONWEALTH A NEW TRIAL? MISCONDUCT NECESSITATE TOR’S REQUIRED BECAUSE OF INSUFFICIENT IS RESENTENCING OF THE SENTENCE? JUSTIFICATION REQUIRE RESENTENCING PITTMAN DOES COMMONWEALTH V WHETHER OR CAN ELECT THAT THE COMMONWEALTH SO THE MANDATORY SENTENCE? NOT TO INVOKE Superior record and we are satisfied We have reviewed the warnings given involving the Miranda disposition of the issues Court’s witness, and impeachment appellant, of the Commonwealth’s justification sentence im- sufficienсy for the of the trial court’s remaining were not raised that the issues posed. We have concluded ad- Superior that neither court Court the trial court or before therefore, issues, been waived. Common- have dressed them. Those (1974). Clair, A.2d 272 v. 458 Pa. wealth chological physical assessing when abuse reason- of a person’s ableness battered fear of imminent danger of death or serious harm with to a bodily respect claim of self-defense. The trial court charged the' self-de- fense as follows:
Now, special apply rules determining availability of the defense of justification or of self-defense when force deadly was involved. Because the Commonwealth *15 disproving has the burden of the of justification, defense may find the you guilty you’re defendant if only satisfied a beyond reasonable doubt that she not did reasonably that the use of deadly believe force was then and there necessary protect herself against death or serious words, injury. other if bodily you’re satisfied beyond a the reasonable doubt that defendant not was reasonable in her belief that the use of deadly force was then and there herself the necessary protect danger from of or death serious bodily injury, you may then find the of the guilty charged. However, defendant of one crimes if the defendant it necessary believed was to use deadly protect force to herself from death or serious bodily unreasonable, but her belief the injury degree was then of homicide would rise higher not than man- voluntary and, slaughter circumstances, find, under if you those so you may guilty find her of voluntary manslaughter. N.T. at 1723-24. trial did
Appellant’s request counsel not jury instructions require that would the jury consider the abuse suffered of by appellant assessing the reasonableness fear of imminent of death or danger bodily injury serious she shot The trial time Welsh. court did not instruct as to legal history relevance of the of abuse presented appellant. at trial on behalf failure of request clearly counsel to this instruction was erroneous under the law of this Commonwealth. evidence of self-defense arises from any
When source, the Commonwealth must self-defense disprove be Jacobs, reasonable v. yond doubt. Commonwealth 501
59
burden,
(1983).
460
To
that
A.2d 728
sustain
Pa.
1)
the defendant
not
prove
must
did
Commonwealth
danger
or
he or she
death
reasonably believe that
was
2) the use of
bodily
provoked
defendant
injury;
serious
to retreat and retreat
force;
3)
duty
or
had
defendant
v.
complete safety. Commonwealth
possible with
was
Burns,
(1980).
490 Pa.
The trial court herein 505(b)(2)(ii)(A)(actor 18 duty to retreat. Pa.C.S.A. had no § dwelling obligated to retreat unless is aggressor). any Nor was there conten- the initial serious attack on provoked tion morning remaining, 17.5 The issue only March therefore, had á whether reasonable belief danger. she was imminent Wаtson,
In Commonwealth v. 467, 472-73, 494 Pa. that: (1981) A.2d this Court stated physical long period there has over been abuse [where] time, the circumstances which assist court determining the reasonableness of a defendant’s fear *16 killing or at the time of a include the injury death serious in the defendant’s with the victim’s behavior familiarity past.
Thus, of the that jury apprised should have been fact for three to years the abuse suffered was be of by respect to the reasonableness jury considered with danger fear imminent of death or serious of had no trial counsel reasonable bodily injury. Appellant’s failing charge for such a request jury, to basis to charge was prejudicial the absence guilty have found not jury likely would if degree of the such an instruction had been murder third Fisher, v. given. See Commonwealth Pa.Super. 342 (1985). 543-44, 493 A.2d 724 appellant deliberately pro- prosecutor attempted to show
5. The talking dating by other Welsh's attacks men. voked 1133-36.
60
Appellant also аsserts that her trial counsel was in failing ineffective to request jury instruction that require would jury consider the cumulative effects of psychological and physical abuse when assessing what con stitutes provocation support sufficient a conviction for voluntary manslaughter.
The voluntary manslaughter charge given as was follows:
Now, is voluntary manslaughter? what A person com- mits voluntary manslaughter when he intentionally kills but, another at the time of the he is killing, acting under provocation serious part person of the he killed. The serious provocation referred to is conduct sufficient an passion excite intense in a person. reasonable And terror, passion anger, includes rage or resentment. How- ever, if a cooling reasonable time elapses between provocation and the the provocation killing, will re- duce voluntary murder to A manslaughter. can person also guilty be if voluntary manslaughter he intentional- ly if, or kills knowingly person another at the time he believes that it necessary protect do so to himself or death serious bodily injury, his but belief was unreasonable.
N.T. at 1721-22.
This Court has
provocation
held
sufficient
to support
for manslaughter may
a conviction
be established
“the
impact
cumulative
of a series
related
and that
events/'
provocation
test
adequate
“ultimate
remains wheth
man,
er
reasonable
events,
confronted with this series of
became
to the extent that
mind
impassioned
‘incapa
”
McCusker,
Commonwealth v.
cool reflection.’
ble
(1972).
Pa.
292 A.2d
Where there is
evidence of
series of related events which tend to estab
*17
adequate provocation,
lish
the trial
give
court must
Solomon,
McCusker instruction. Commonwealth v.
471
417,
(1977);
Pa.
Voytko,
Commonwealth v.
61 of effect of series upon cumulative could be based cation request did not events). herein Trial counsel rеlated one. Trial give court the trial charge, nor did McCusker failing request for had no reasonable basis counsel in if that appellant prejudiced His ineffectiveness charge. instruction, this of had the benefit would have jury not did have found that have likely would shot Welsh and thus time she at the to reflect capacity charge of the reduced guilty found could have manslaughter. voluntary of trial counsel ineffectiveness of the
Because on self-defense and instructions proper jury requesting and remand for a new manslaughter, we reverse voluntary trial. addition, that her trial counsel asserts re expert testimony failing present ineffective psychological of the victims the characteristics
garding re abuse, testimony uncontradicted where physical abuse, and the of such victim vealed rendered a verdict testimony, of expert the aid without jury, such the victims of concerning upon myths erroneous based of the framed terms issue that amici This is the abuse. syndrome.” woman “battered this Commonwealth the law of long
It has been cases, in all civil is admissible “[ejxpert testimony inferences alike, explanations it criminal involves when knowledge; intelli- training, range ordinary not within the Seese, 512 Pa. v. Commonwealth experience.” gence Commonwealth (1986) 920, (quoting 921 517 A.2d (1956)). 123 A.2d Nasuti, Pa. v. is not within the syndrome woman Because the battered experience of intelligence and knowledge, ordinary training, regarding battered testimony expert we believe jurors, proving justification as basis is admissible women the defendant has been force deadly where the use physical abuse. psychological a victim shown be repeatedly subject- is is a woman who “A woman battered by behavior psychological or physical forceful any ed *18 62
man in order to her something coerce to do he wants to rights.” Walker, do for The Bat- any without concern tered Woman (1979). at xv Batterеd women have been to compared hostages, prisoners war, and concentration victims,6 camp battered woman is syndrome recog- nized as a post-traumatic It widely stress disorder.7 is acknowledged that held commonly beliefs about battered are myths women to subject ultimately place blame battering for example, the battered For victim. battered are generally women to considered be masochists de- who supra pleasure being Walker, rive abused. at 20.8 myth This exploited by prosecutor in the instant case he if when asked willing partici- was “a pant in the activities went on between and Wil- [her] Welsh,” 1186, liam when stressed the jury closing argument that if appellant had truly been an innocent victim she could put have an end relation- ship. myth this Similarly, given the Supe- credence 466, 461, 475, Hundley, (1985), 6. See State v. 236 Kan. 693 P.2d 479 the court where stated: severe, time, abuse long great The is so for so and the threat of constant, bodily harm so it creates a standard mental attitude in its people victims. Battered women are terror-stricken whose mental is state distorted and bears a marked resemblance to that of a hostage prisoner beatings they or a of war. The horrible are subjected believing nothing they them brainwash into there is can They eruption do. live in constant fear of another of violence. They persons become disturbed from the torture. Crocker, Meaning Equality See also Battered Women Who for 121, Self-Defense, (1985). Kill Men in 8 Harv. Women’s L.J. 128 n. 30 suggested psychological Researchers have that the effects of the bat syndrome compared brainwashing. tered woman Comment, can be to classic Spouse Syndrome The Battered as a to a Homicide Defense Code, Charge Pennsylvania Under the Crimes 26 Vill.L.Rev. 111- (1980). fear, isolation, hyper-suggestibility, 12 These effects include guilt, dependency, and emotional which culminate in a wоman’s escape." (emphasis belief that “she should and can not Id. original). Osanka, Him, (Fall Johann I Didn't Mean to Kill 21 Barrister 1987). Schneider, Equal Rights 8. See also to Trial Sex Bias Women: in the Walker, Self-Defense, (1980); Law Thyfault, 15 Harv.C.R.-C.L.L.Rev. 625 Browne, Women, Beyond the Juror’s Ken: 7 Battered Vt.L. (1982). 1-2 Rev. determined that assertion rior Court which “[tjhé because of continued self-defense was unreasonable appellant and the victim.” 358 Pa.Su- relationship between A.2d at These the victim” “blame per. fact enable remain oblivious myths juries behavior, do not battering acceptable myths is not and such in battering battered women remain begin why address *19 relationships.9 women myths commonly about battered
Other
believed
uneducated,
job
that
women are
with few
are
battered
skills,
police
and
woman.
protect
that
can
battered
supra
Walker,
exploited
26. These
also
myths were
prosecutor
that detailed
testimony
who introduced
by
received,
had
that her
police training appellant
implying
training
incapаble
being
by
made her
of
victimized
batter-
could
er,
argued
and who
to the
that
have
jury
rescued,
rescued,
by
if she had
to be
a law
wanted
been
ready, willing
protect
and
wom-
system
enforcement
able
of
To the contrary,
en who are
domestic violence.10
victims
465-68,
supra
Hundley,
693 P.2d at
The court in
note
Battering, Rights Litigation (1986). in Civil Handbook 237-38 Watson, supra, 11. This Court stated in Pa. 431 A.2d at determining that "in of reasonableness a defendant’s belief [in danger bodily injury], death imminent or serious we take must also changes any into account in her husband’s behavior towards her immediately killing.” before the her solve her help that no one could believed justifiably from the evidence herself. It was clear except predicament in the colleagues at trial that Welsh’s presented appellant from Welsh’s protect did little to department harassment, and assaults.12 surveillance, acts of vandalism the lack of Yet, argued jury prosecutor less of a this instance had protection adequate police isolation than it did on the sense of bearing really must not have theory Commonwealth’s Testimony battering. *21 England interesting have shown note that studies done 12. It is groups highest of wife among with the incidence police are those that beating. Walker, supra, at 24. testimony expert cases where comparing results in homicide 13. battering with those homicide cases permitted and introduced about is battering, еxpert testimony it has jury about does not hear where the leniently juries acquit or judges sentence more been shown they this charges when are educated more often convict of lesser expert , Browne, Walker, Thyfault supra note at 14. testimony. Therefore, additionally, because of the unique psy chological condition of the battered woman and because of myths held commonly about women, battered it is clear that where pattern of battering shown, has been battered woman syndrome must presented be to the jury through the introduction of relevant evidence.
Accordingly, we reverse order of Superior Court which affirmed judgment of sentence, and we remand for a new trial consistent with this opinion.
ZAPPALA, J., filed a concurring opinion in which FLAHERTY, J., joined.
NIX, C.J., filed a dissenting opinion in which McDermott, j., joined.
ZAPPALA, Justice, concurring. agree
I with Justice Larsen Appellant’s trial counsel was ineffective in failing to request an instruction that would provided have guidance to the as to the import of the history of the physical and psychological abuse determining whether the Appellant reasonably believed that inwas danger of death or serious bodily injury. The jury heard extensive testimony about the victim’s violent nature and the abusive relationship between the and the victim. The jury instructed, was never however, that this history of abuse should be considered in determin- ing whether the Appellant’s belief that she inwas imminent danger of serious bodily or injury prior death to the shoot- ing was reasonable. The trial court’s instructions on the issue of self-defense did not address this point critical law, see Watson, Commonwealth v. 494 Pa. 431 A.2d (1981). Trial counsel’s failure to request such an in- struction was inimical to his client’s interests. No more harmful omission is conceivable.
For alone, this reason I believe new trial is warranted. I would not address the second issue of whether a separate defense referred to as “battered syndrome” woman is rec- ognizable under the law of this Commonwealth. Although *22 it amici, Appellant the has made addressed by the issue was syndrome” is not involved clear that the “battered woman brief, Appellant’s appellate In footnote 5 of this matter. the self- position it clear Appellant’s counsel made that a failure to issue is not to mischaracterized as defense be I rec- issue. While syndrome” raise the woman “battered issue, I is import of believe its resolution ognize the this us. squarely to a time when the issue is before best left FLAHERTY, J., concurring opinion. joins this Justice, dissenting. NIX, Chief litigant in that uniquely here is fortunate
The a has elected the Court this Commonwealth Supreme trial, them- parties her counsel. At the contented serve as the issue in traditional address self-defense selves to argued appeal, On issue self-defense was mode. defense, as well consistent with traditional standards. argument as this at oral prosecution, аdvised Court is of the of the of what applicability theory question not an syndrome,” known “the battered as women in the only issue in this case. Indeed the reference briefs Notwithstanding this this Court theory bywas amici. recognize this appeal has chosen this as vehicle to history for the first time doctrine as valid defense commenting as to this Commonwealth. Without defense, such I am advisability recognizing merits or express chagrin with the my constrained abandonment principles juris- of sound colleagues fundamental my Regardless particular provision laudable prudence. how may be, only should be made on a record judgment adoption. has all the ramifications of its fully explored repeatedly precipitous has demonstrated that Experience provides consequences action often unfortunate judicial my run. this issue is not before long properly view I appeal agree in this and therefore cannot the Court it рursue this conclusion that counsel’s failure to Court’s ineffective assistance. constitutes J.,
McDERMOTT, joins opinion. in this Notes victim helpless been 323-26. (Excerpts) at expert testimony counsel introduced about Had trial appel the actions taken by syndrome, woman battered 17, 1983, March would have been morning lant on prudent light reasonably how weighed by jury and reacted battered woman perceived would have trial on the proceeded Trial counsel Welsh’s behavior. experienced psychological had theory that at the victim and upon inflicted physical abuse in self-defense. acting she was the time she shot Welsh to call for trial counsel not no reasonable basis There was woman to counter the erroneous battered witness expert an case.13 its the Commonwealth built myths upon which ineffective, and the of such Thus, absence trial counsel was in that the prejudicial expert testimony myths, of unfounded on the basis permitted, she had a reasonable belief claim that assess she fired life-threatening situation when that she faced a at Welsh. gun