finding that counsel presenting some but not all of character witnesses on a list provided by defendant was not ineffective
How later courts described this case
- finding that counsel presenting some but not all of character witnesses on a list provided by defendant was not ineffective
Written by the judges who cited it.
The opinion
TAMILIA, Judge,
concurring:
I agree with the majority that the testimonial privilege announced by the legislature at 42 Pa.C.S. § 5914, providing that a spouse is not competent to testify against his/her wife or husband, is qualified by section 5913 which abolishes the privileges in family matters including situations involving violence or attempted violence against a spouse or children in the care or custody of either of them. To hold otherwise would be to shift the intent of section 5913 and to create an in-road in that section, which was never intended by the legislature.
The thrust of section 5913 must be measured against the evolution in the law concerning interspousal and interfamilial immunities, both testimonial and in regard to confidential communications, particularly within the past twenty-five years. The immunity or privilege derived from the common law concept of “oneness”, the sanctity of marriage and the preservation of confidential and private relationships. Statutory law has been codified in most jurisdictions to deal with modern realities and the recognition that the common law privileges and immunities become a shield to protect wrong doers and to legally coerce the spouse (usually a wife) and children into submission by tyrannical, abusive and dangerous spouses. Early examples of relief granted by the legislature are 48 P.S. § 131 Right of action; jurisdiction; spouses competent witnesses (Act of May 23, 1907, *358 P.L. 227 § 1) (deserted wife shall be competent to be a witness against her husband to obtain support and maintenance); 48 P.S. § 91, mother to have same power and control over minor child as father; right of action for injuries to child (Act of June 26, 1895, P.L. 316 § 1) (each party in habeas corpus action claiming child is on equal footing and right to be heard). Commonwealth ex rel. Horisk v. Horisk, 90 Pa.Super. 400 (1927). In more recent times, the Protection from Abuse Act, 35 P.S. 10181 et seq., permits action between family members regarding physical or sexual abuse, and by an adult household member or parent on behalf of a child; the Child Protective Service Law, 11 P.S. 2201 et seq., provides at section 2222 Hearings and Evidence, “(2) ... any privilege of confidential communication between husband and wife ..., shall not constitute a ground for excluding evidence at any proceeding regarding child abuse or the cause thereof. The neutering of these immunities and privileges has also spread into the tort field, from domestic relations and criminal law exceptions, to provide that interspousal immunity for tort actions between spouses be abolished.” See Hack v. Hack, 495 Pa. 300 , 433 A.2d 859 (1981), and between parent and child, Falco v. Pados, 444 Pa. 372 , 282 A.2d 351 (1971). The final bulwark of interspousal immunity was the bedroom and the common law protection of the spouse (male) from a charge of spousal rape. Under Lord Hale’s 1 contract theory, common law may be stated, “but a husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retreat.” One of the rationales for this concept was that since the wife was chattel and her husband’s property, rape was nothing more than a man making use of his own property. The question posed to contemporary legal scholars and courts is, “When a woman says I do, does *359 she give up her right to say I won’t?” 2 Pennsylvania has moved into the forefront of those states which has demystified the common law mantel of immunities and accorded the spouse (wife) the equal protection of the law afforded by federal and state constitutions. In 1985, the legislature enacted a law making it a crime for a person to commit a sexual assault or to inflict involuntary deviate sexual intercourse upon a spouse. 18 Pa.C.S.A. § 3201. This Court declared the statutory intent to further a compelling state interest in protecting the fundamental right of each individual to control the integrity of his or her own body and, as such, does not clearly and palpably violate a spouse’s right to privacy. Commonwealth v. Shoemaker, 359 Pa.Super. 111 , 518 A.2d 591 (1986), appeal denied 515 Pa. 605 , 529 A.2d 1080 (1987). Carrying this movement to its most forward point, the legislature, by Act No. 1989-16, effective June 29, 1989, made the testimonial privilege waivable on the part of the witness in a criminal proceeding and eliminated it entirely in desertion and maintenance cases, criminal proceedings involving bodily injury or attempted or threatened violence against the spouse or their minor children or children in their care, and in criminal cases charging murder, involuntary deviate sexual intercourse or rape.
From the above, it is clear that there is a steady and determined response to interspousal and interfamilial violence which was previously condoned at common law under the rubric of the privacy and sanctity of the family in which the state has no power to intervene.
The trend through state and federal rules and case law is toward divesting the accused of the privilege to bar adverse spousal testimony. In 1958, thirty-one jurisdictions including Alaska and Hawaii then allowed an accused a privilege to prevent adverse spousal testimony. By 1980, the number had declined to 24. The federal courts, like Pennsylvania to some degree, have determined that the basis for the rule should be modified so that the witness spouse alone has a *360 privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Trammel v. United States, 445 U.S. 40 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980). The note at 93 ALR 3d 1005 -1018, Competency of Spouse to Testify Against Other in Prosecution for Offense Against Child or Both or Either, covers the multitude of positions taken on this issue.
Under the strict common-law rule of incompetency, one spouse could not testify against the other, regardless of the offense charged, including a sex offense against the defendant’s stepdaughter. But an exception to the common-law rule was developed for prosecutions involving a crime against the person of the witness spouse, and it has been held that the exception would extend to prosecutions involving violent crimes and sex offenses against the child of either spouse____ Similarly, under statutes providing an express exception for prosecutions involving an offense against the child, the courts have held that the defendant’s spouse would be competent to testify.
Id. at 1024, note 2 (a) (footnotes omitted) (emphasis added).
It is, therefore, clearly evident that the only sensible and consistent position for this Court to take in resolving a possible conflict between section 5913 and section 5914 is to hold that the exception made regarding spousal testimony for offenses against a child in the home is not limited by section 5914 having to do with confidential communications between spouses. Finally, it is clear the legislature could not have intended the absurd result that it is permissible for a parent to testify against the other spouse in a case under the P.F.A., or the Child Protection Law, where the issue had to do with abuse or sexual assault against the child but not in a case of rape or sexual assault charged against the father. Commonwealth v. Nadolny, 163 Pa.Super. 517 , 63 A.2d 129 (1949).
The testimony presented by wife was admissible and I agree with the majority that the judgment of sentence must be affirmed.
. 1 Hale P.C. 629. Hale was Chief Justice of the Court of Kings Bench from 1671 until 1675. Cited in Warren v. State, 255 Ga. 151 , 336 S.E.2d 221 (1985).
. Griffin, In 44 States, It's Legal to Rape Your Wife, 21 Student Lawyer.