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Commonwealth of Pennsylvania v. McBurrows

Order granting defendant's motion to suppress his wife's testimony on grounds of spousal privilege reversed; wife's observation of her husband's disposal of the alleged murder weapon was not a protected confidential communication between the spouses because the acts observed did not constitute oral or written words, or expressions or gestures intended to convey any message induced by the confidential nature of the marital relationship.

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�1 In this prosecution for murder in the first degree, the Commonwealth has appealed from the Order which granted in part the defense’s omnibus pre-trial motion to suppress the testimony of the Appellee’s wife on the grounds of spousal privilege pursuant to 42 Pa.C.S.A. �5914. At issue is whether a wife’s observation of her husband’s disposal of the alleged murder weapon is a confidential communication between spouses protected under � 5914. For the reasons that follow, we reverse.

�2 The facts and procedural history may be summarized as follows. On January 15, 1999, the Appellee was charged with first and third degree murder, voluntary manslaughter, recklessly endangering another person, possessing an instrument of a crime and endangering the welfare of children. *fn1 These charges arose out of the fatal abuse allegedly inflicted by the Appellee against a minor child, Michael Davis (age 4), who was in his care on January 9, 1999. *fn2

�3 On the evening in question, the Appellee’s wife, Mrs. McBurrows, testified she observed the abuse which was inflicted upon the victim. The suppression court summarized her rendition of the events from her statements to the police on January 11, 1999 and January 13, 1999 as well as her preliminary hearing testimony on March 3, 1999 as follows:

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