*1 against prima easily therefrom, facie case drawn larceny burglary, and re- appellee for the crimes ceiving goods made out. stolen with a below is reversed of the court order procedendo. Appellant. Mimms,
Commonwealth *2 Submitted March J., Watkins, 1974. Before P. Jacobs, Hoffman, Cercone, Price, Voort, der Van and JJ. Spaeth, Spear,
Burton Spear Kupits, and ap- & Renninger, for pellant. Richman,
David Wilson, James and J. Steven IT. Gold- blatt, Assistant Attorneys, Gafni, District Abraham J. Deputy Attorney, District Sprague, Richard A. First As- sistant Attorney, District and Emmett Fitzpatrick, F. District Attorney, appellee. Commonwealth, by
Opinion J., P. March 1975: Watkins, appeal judgment This is an from the sentence Court Common Philadelphia County, Pleas of Crim- by inal Division, the defendant-appellant, Harry Mimms, by after conviction violation Uniform Carrying Firearms Act Deadly and Weapon. Concealed was were Post-trial motions denied years imprisonment. iy% sentenced to to 3 by complaint was commenced arrest and case hearing September preliminary was and a September the maxi- subsequently held on 1970. Since imposed Carrying penalty mum which could be Con- Deadly Weapon of the Uniform and violation cealed years juris- charges (4) Act four Firearms was Municipal Court, time, limited at that was diction years, punishable by two cases no more than (2) jurisdiction fell of the Court of Common case within the against accordingly, case Pleas. So Jury were presented where indictments Grand Pennsylvania 5, Schedule Constitution, Article returned. (r) (iii). Sessions, affirmed As amended Act 45 of 1971 July 14, 1971, were amended 5 and its schedule Article *3 jurisdiction Municipal to Court the of the to broaden (5) was five hear cases where the maximum sentence years 259, 1969, 17, §18, as amended or less. October P.L. 1971, July 14, §1, P.L. No. 17 P.S. §711.18. Judge of the the October President On gave Municipal (a) Pleas the Court Court Common of cases jurisdiction over a certain class exclusive (5). years possible sentence was five the maximum where regulation procedure (b) less established or and Municipal whereby from case could be certified a initially in Pleas. Court for trial Common General Court nothing July, in Regulation 1971 71-16. There is permit regulation that would or the Court Amendment Municipal a heard in Court which Grand case to be original Jury been returned based indictment jurisdiction. trial, police that or about
At two officers testified on September 7, patrol, they 1970, while on ob- 9 A.M. driving appellant west on Baltimore Avenue served stopped plate. The officers expired license with
489 car to issue a traffic summons. The was asked to step produce out of the automobile and his owner’s card operator’s bulge large license. The officers noticed a appellant’s hip sport jacket. under his The officer deadly weapon feared appel- concealed and frisked the lant and took from his a .38 revolver waistband caliber with five occupant live rounds. The other auto- mobile was also frisked and a .32 caliber revolver person. removed from his
The person contends that the search of his and the seizure of the revolver violated his contitutional rights. Supreme Terry Court of the United States (1968),
Ohio, U.S. S. Ct. 20 Ed. 2d 889 L. page at 27 held: proper
“Our evaluation balance that has to type be struck in this of case to leads us conclude narrowly authority there permit must be drawn protection weapons a reasonable search for the police officer, where he has reason to believe dealing dangerous he is an armed and in- with regardless dividual, probable of whether he cause has arrest individual for a crime. The officer need absolutely ; be not certain that individual is armed reasonably prudent the issue whether in the man be circumstances would warranted the belief that danger. (Citations safety or that of others was determining omitted) whether the act- And in officer weight reasonably circumstances, ed in such due must unparticularized given, inchoate, not to *4 ‘hunch’, or but to the suspicion specific reasonable which inferences he entitled to draw from facts the light experience.” of his actually saying the What Court was was not a “what reasonably prudent man in the circumstances would be safety danger”, in the that his warranted belief ... is in rather, prudent reasonably police but what a officer would 490 police experience believe, re- warranted otherwise
be bearing. would have no ferred to in the above citation properly applied instant case. test could in the Either general proposition the of an a the arrest of driver As ordinary not, does offense with automobile for an traffic permit more, of automobile. a warrantless search out Dussell, A. 2d Pa. 266 659 v. Commonwealth when, case, police officer (1970), but the instant performance duty stops enforce a of car to the tag, license failure a current traffic violation for to have step of car requesting and when driver to out he license, card and driver’s and exhibit his owner’s may dangerous prove aware becomes situation danger, person, right to frisk to remove to his arises. only reason the concedes that the
The Commonwealth stopped of a license car was was absence current subsequent plate. However, the and frisk search subject hunch or person was of an ill-founded not part of officer as the con whimsical tends, harrassment nor did the search constitute frisk or search strict narrow basis sense. The solely protection. search ly the officers’ Such for own Supreme encouraged by the Court of United es are protection of law enforcement officers. States supra; Williams, Terry Ohio, Adams 407 U.S. v. (1972). 2d Ct. 32 L. Ed. 92 S.
Frightening for the form the foundation statistics self-protective police offi- searches authorization cers :
“Figures reported by of In- the Federal Bureau vestigation policemen were mur- indicate that 125 having been with all five of them dered but by gunshot Federal killed Bureau Inves- wounds. p. Bulletin, Feb., 1972, tigation Law Enforcement According police study, approximately one 30% shootings approached police occurred when a officer *5 suspect seated an Bristo, Police Of- automobile. Shootings ficer Tactical Evaluation, Crim. 54 J. —A (1968),.” & at 148-149, P.S. 98 Id. n. L.C. appellant
The question that a contends asked con- cerning religious background was fundamental error. This occurred on cross-examination and was as follows:
“Q. me, you good Tell Harry are friend of Mimms ? acquaintance “A. I am him, an I know him. “Q. very you You know say? him well would Yes, “A. sir.
“Q. you both Are Muslims?
“A. Sir?
“Objection: Sir, juror. I move for withdrawal of a “THE COURT: Overruled.
“Q. you Are both Muslims?
“A. Yes, sir.
“Q. words, you In say ‘Muslims’, other when follow- right? ers of the Islam faith is that “A. Yes.”
Clayton only Morrison who so testified was the wit- appellant- question- ness called on his behalf. This ing designed appellant to show bias favor of the they in that were close friends and members of the same religious advantage sect. The defendant took of this fact point to have the made that adherents of the sect have obligation testify truthfully. to The contention is with- out merit. charge impartial P.L.E.,
The was as a fair whole testimony Law, Criminal Court reviewed the §721.7. complains on both sides and the about an iso- concerning credibility police. lated statement But may say: you hand, the other Court went to “On they just say say they reason, had no wanted guns they in the car and that he did it. found two Or say gun they thought that he had it was easier to say they him them In than to found under the dashboard. you say. event, jury, members of the it is for And you just say by unanimous verdict.” The con- gun police car, tended that the was found in while gun person. they It testified that took the from his testimony evident that the believed the of the Com- monwealth.
Judgment of sentence affirmed. *6 by Dissenting Opinion J.: Hoffman, Appellant contends that the lower court erred in al- lowing cross-examination, a testify, defense witness to appellant that both he and of the Muslim faith. were approximately September At 7, 1970, 9 a.m. on Phila- delphia police Milby officers John Kurtz and ob- Lester appellant driving served west on Baltimore Avenue an bearing expired tag. automobile license officers stopped car in order to issue a summons. Officer Kurtz appellant step asked the out of his Officer Kurtz car. appellant stepped car, testified that when out of the he large bulge appellant’s hip jacket. noticed a under his He then frisked appellant, and seized loaded a .38 caliber appellant’s revolver Milby from waistband. Officer testi- appellant’s Clayton fied that he then frisked passenger, and found a Morrison, .32 caliber revolver.1 Philadelphia At Court, trial Common Pleas both witnesses, and Morrison testified as defense brought maintained Morrison had both revolvers into the car. Morrison had testified the .38 revolver seat, appellant’s person, been under the car and not on at stop. the time 15, guilty
On March a found a carrying violation of the Act2 Uniform Firearms appellant’s trial, pleaded guilty 1. Prior to Morrison charges carrying of violation of the Act and Uniform Firearms deadly weapon. concealed 24, 1939, amended; §628, Act of June P.L. former §4628, repealed by
18 P.S. the Act of December P.L. 334, §5(a), substantially 1973; effective June reenacted
49S deadly weapon.3 concealed Post-trial motions were de- nied; appeal this followed. Attorney
On cross-examination the Assistant District following allowed questions: to ask Morrison the “Q. me, you good Harry Tell friend of Mimms? are Yes, “A. sir.
“Q. say? very well, you You know him would Yes, “A. sir.
“Q. you Are both Muslims?
“A. Sir? appellant] :
[Counsel “Objection, juror. I sir. move for withdrawal of a “THE COURT: Overruled.
[By Attorney] the Assistant District : “Q. you Are both Muslims? Yes,
“A. sir. ;In “Q. you words, say ‘Muslims,’ other when fol- right? lowers Islam is that faith, “A. Yes.” legislature
In Pennsylvania, specifically pro has *7 questioned, any judi vided that shall witness “[n]o concerning religious proceeding, cial belief; his nor shall upon subject, evidence purpose be heard the for the affecting competency credibility.” of either or Act of April 23, 1909, 140, §3, Here, P.L. 28 P.S. the §313.4 6, 1972, §1, supra, through the Act December 18 of Pa.C.S. §§6101 6119. 24, supra, 2, §416, 1939, recently Act of
3. June n. as most February 79, 27, §1, §4416; amended P.L. 18 P.S. repealed by 6, 1972, supra, 2, §5(a), the Act of December n. ef- 6, 1973; superseded 1972, 6, June fective the Act of December supra §§907, n. §1, 908. 18 Pa.C.S. Pennsylvania’s statute had been described as “a model of
clarity” questions which “settles most left in other unsettled McCormick, Evidence, . .” states . Handbook the Law at §48 of (2d Cleary 1972). 102 ed. E. The various state are statutes collected Wigmore, (Chadbourn and discussed 3A Evidence rev. §936 1970). clearly using religious
Commonwealth was the common affiliation of and Morrison as means of im peaching credibility. Indeed, Morrison’s the lower court opinion testimony states in its that was introduced relationship “to show the witness’ with the defendant and put credibility (Emphasis supplied.) in issue.” concerning religious
Evidence
beliefs witnesses
only
can be admitted
where its
to the
relevance
issues of
great
outweigh any
the case
possibility
is so
as to
prejudice.5 Thus,
Philadelphia Transporta-
in McKim v.
Co.,
plaintiffs
tion
(1950),
2d 122
three
Pa.
72 A.
personal injury
specifically alleged
in a
action had
their
complaints
injuries
prevented
their
had
from
them
performing their
as
direct examina-
duties ministers. On
plaintiffs
tion, one of the
testified that she
received
expense
perform
allowance
was
when she
able to
a cer-
tain amount of work as minister of
the Jehovah’s Wit-
cross-examination,
plaintiffs
nesses.
however,
On
ob-
jected
questions concerning
to all
the circumstances of
their
they performed
ordination or the duties which
objections
ministers. The lower court overruled these
Supreme
affirmed, noting
purpose
Court
that “[t]he
questions objected
[of
to obtain substantive
to]
necessary
supply
information
deficiencies in the testi-
mony given by plaintiffs
examination;
in direct
if the
questions, properly
answers to these
allowed
cross-
played any
examination,
part
judging credibility,
effect
was incidental
. .
.” 364 Pa. at
.
72 A. 2d at
“
purpose
123. The Court added that
of the cross-
[i]f
apparently
prejudice
examination
been to create
against
parties
religious
because
their
beliefs, the
judge
undoubtedly
learned trial
would
have
sustained
objections.”
Here, religious beliefs his witness *8 completely any were irrelevant to issue involved McCormick, Evidence, 5. See supra, Handbook the Law of 4,n. at 101. §48 They anywhere trial. were never mentioned or to alluded only on direct examination.6 If Commonwealth wished to appellant’s friendship demonstrate it Morrison, with invading could have privileged done so without area religion. Instead, appears it that Commonwealth deliberately sought place to fact before the only belonged and the to other defense witness highly religious group. controversial by religious
The blatant means which affiliation injected and his have been this witness into bring case to mind the words of former Chief Justice Maxey Philadelphia Co., O’Donnell 856 Pa. Record 307, 346-347, (1947) 775, 793-794, n. 51 A. 2d 5n. (dissenting opinion), denied, cert. 766: “This U.S. the first time attorney the writer ever heard of in jecting religious into a case the liti affiliations of either a gant or religious witness .... If tvitness’ belief can properly not injected judicial proceeding, into a a liti gant’s religious certainly belief cannot be . When ... plaintiff’s counsel asked as chief [defendant’s executive] knowledge to religious affiliation and O’Donnell’s judge stated that affiliation, the trial imme should have diately may declared a mistrial. which have No verdict brought about, been or even influenced a consideration litigant’s religious of a to affiliations be allowed should justice.” original.)7 (Emphasis stand a court of 6. The fact that defense counsel on redirect examination had testify obligation Morrison under tell Muslims were an hardly opening truth could amount an door religion. issue The Commonwealth re- introduced issue of ligion only completed after defense last direct examina- its tion, redirect, question and defense counsel’s after motion denied, only attempt for a mistrial had been an to minimize improper the effects of the Commonwealth’s cross-examination. 7. Justices Stern concurred in this dis- PattersON Majority issue, sent. The perhaps did not O’Donnell this discuss specifically it appeal assign- because had not been raised ment of error. *9 appellant’s solely credibility
As trial turned credibility witness, im- himself and his and as their properly impeached religious ground contrary to the April I supra, and intent the Act letter granted believe must be a new trial. dissenting opinion. Spaeth, join in JJ., this Jacobs Appellant. Commonwealth v. Cross, Watkins, J., Submitted Before P. June Jacobs, Hoffman, Cercone, Price, Voort, Van der Spaeth, JJ.