Commonwealth v. James
253 A.2d 97
Pa.
1969
Check Treatment

*1 Common wealth v. James, Appellant. *2 Argued January 1969. J., Before C. Bell, Jones, Cohen, Eagen, O’Brien, Pomeroy, Roberts and JJ.

A. for Benjamin Johnson, appellant. Jr., Edward Rendell, G. Assistant District Attorney, him with James D. Assistant District Attor- Crawford, Richard A. First ney, Sprague, Assistant At- District Arlen and District torney, Specter, Com- Attorney, appellee. monwealth,

Opinion April 1969: Roberts, Appellant and decedent emerged from bar and in an altercation engaged which during the deceased appellant. stabbed fatally Appellant claimed The jury found her not guilty murder guilty voluntary manslaughter appellant but appeal. took this she contended at trial stabbed

Appellant her. only deceased after he had beaten his assaultive she testified tendencies, establish attacked on occasions the deceased had two beaten her. On cross-examination, deceased asked whether she had stabbed the appellant Appellant’s objection before his death. three weeks and she claims overruled, now the Act of March P. L. 15, 1911, 20, §1, violated forbids criminal defendant P.S. committed, to show that he has question tending “any or offense charged been convicted with, charged, then be other than one wherewith he shall character of bad that he has been tending show *3 or character unless he first his own reputation,” puts v. or in reputation issue. Commonwealth See, e.g., Pa. 248 A. 2d 24 517, (1968). 432 Smith, correct appellant Even that is assuming arguendo ques- in of a contending the Act 1911 bars ar- for no tion about a act which there has been the rest or this case still falls without conviction, mere- The Act of 1911 “was intended coverage. act’s reputation a prevent blackening to defendant’s ly to to but crime, commit attempting of another . legitimate purpose if there is . . not from such prohibit 1911 does the Commonwealth . Pa. . . .” Commonwealth v. 369 interrogation Heller, 289-90 In 87 A. the 463, 287, (1952). impeach used not to merely the was to sub- but establish credibility motive, defendant’s of the Commonwealth’s case. element stantive the Commonwealth at- true where was here, is same past was more like- prove by to tempting the a crucial where aggressor, inquiry been have ly claiming appellant to establish appellant self-defense, of past relationship parties. in issue put

herself Her of had aim, was establish that she acted course, in reasonably protecting herself. had decedent Thus inflicted beatings appellant on she might the past, protect have justified been force to using deadly in the in- present herself case. The Commonwealth’s quiry merely attempt part appel- was an to rebut lant’s substantive not case establishing she, had been the Act aggressor past. decedent, of 1911 not was intended prevent part from substantive rebutting disproving appellant had which tried to advance. already defense contends it error for the Appellant next court into pathologist below allow a read evidence of a report which indicated that toxicologist Ap- at deceased was intoxicated the time of his death. not claims that this was and within pellant hearsay L. Act P. the Business Records Act, May 4, it violated §91a, P.S. event, need confrontation of the sixth amendment. We clause can find not decide these since we questions, however, could have way appellant possibly no toxicologist’s report. the admission of the prejudiced by Common- purpose what exactly It is hard to see Evidence of the de- introduced this evidence. wealth at all seem to anything intoxication would ceased’s appellant self-defense support appellant’s claim, not harmed its use. certainly *4 the to challenges charge as jury Finally appellant “to justify jury told judge self-defense. committed in there must as self-defense, homicide a of peril great bodily imminent of life, or, an actual be founded on facts they reasonable belief as or a harm, peril or of such imminent great the time at appear In there be no other addition, must harm. bodily in place attack alleged if the takes escape of means case.” This alleged as street, 512 clear and

perfectly stated properly the law. Com See monwealth v. 407 Pa. Collazo, 180 A. 903 494, Commonwealth (1962); v. 370 A. Pa. 88 Vassar, 2d 725 Commonwealth 9 (1952); v. 58 Pa. Drum, (1868). of the Court of judgment and Terminer Oyer Philadelphia

of is affirmed. County Eagen dissents.

Dissenting Opinion Mr. Justice O’Brien: I cannot interpretation subscribe to the majority’s of 1911.1 That Act crimi forbids nal defendant he to show that “any tending has or been convicted committed\, charged been with, offense other than the one he wherewith shall then be to that he charged, tending show has of bad character or un (emphasis reputation,” added) reputation less he first his puts own character or judicial issue. To this one exception, majority by claims legislation adds another —unless the defendant In al situation would majority prove past low the Commonwealth “to likely was more have been This is aggressor.” prevent. evil the statute very designed A. v. 369 Pa. fact, Heller, Commonwealth upon 2d 287 which the far (1952), majority relies, supporting majority’s from de actually position, Heller it. at stroys states, page purpose prevent the Act is “to blackening repu a defendant’s tation or to commit fact crime.” The the Commonwealth permitted cross-examine as to a adultery, crime, in no supports motive, way allowing order show the instant case to cross-examine 15, 1911, 20, §1, P. L. §711. Act of March 19 P.S. *5 “to prove by past more to have likely been the aggressor.” is thus majority allowing Commonwealth “to prove commit crime”, which proscription tells us is the very of the statute. if even this line

Moreover, would some instances be the instant case surely permissible, is not one of them. When the Commonwealth asked appellant whether she had the decedent three stabbed prior weeks appellant’s his objected, counsel death, that asked be and moved for stricken, withdrawal of A juror. conference then chambers place took as follows: I will overrule “The Court: motion for your the withdrawal of a juror. Mr. John- If: Honor your over- you inasmuch as have please, son spe- ruled motion for the I my withdrawal of a juror, cifically request your Honor at time and your this final to the them jury, instruct specifically have ignore question and the that answer, they bearing, to do with this that it has no nothing event there is no testimony anything in their should not consider it ever occurred, they cross-examination, is deliberations. This The Court: parties certainly conduct of the yourself, entire relationship, you, issue —their examination have tried to and which direct elicit, not it was right has a to establish Attorney District to present. has tried And fur- as as she good always the District Attor- competent evidence thermore, may— did in fact cut he him, can she ney Honor : Your evidence. competent Mr. Johnson instructions? request my then denies well.” Still Very I do. Mr. Yes, Johnson: Court: proper case this sort of question in a assuming fault trial for not I not judge could be asked, may this point. to strike at motion However, granting *6 the Commonwealth declined court’s when obvious up invitation sort question follow with some concrete the court abused discretion its evidence, failing jury ignore highly preju- Compare dicial question. Yol. Wigmore, Ed., Ill, apparent point It should have been at this §983. ap- was either besmirch trying pellant’s reputation alone or on an expedition. in Hel- impermissible fishing By contrast, the Commonwealth called as witness Heller’s sis- ler, actually who testified as Heller’s adultery ter-in-law, permitted her. even Thus, with in the instant Commonwealth’s basic in the examination of for- notions of fairness witnesses bade it.

I dissent. joins opinion. Cohen this dissenting Appellant, v. Krick.

Parker, 1969. Before Cohen, January 14, Jones, Argued Roberts JJ. O’Bbien, Pomeroy, Eagen,