Commonwealth v. Smith

Jan 19, 1973
Appeal, No. 201
Reporters:
, ,
Before:
Eagen

Lead Opinion

Opinion by

Me. Justice Eagen,

David Freeman, a/k/a David G-. Smith, was tried before a judge and jury on two indictments charging the burglary of adjoining stores located on North Broad Street in Philadelphia. On one indictment, Freeman was convicted, and on the othеr he was found not guilty. Post-trial motions were denied and a prison sentence was imposed. On appeаl the Superior Court affirmed the judgment without opinion. Judge Spaulding filed a dissenting opinion in which Judges Hoffman and Jaсobs joined. See 219 Pa. Superior Ct. 508, 281 A. 2d 719 (1971). We granted allocatur and now reverse.

According to two police officers who testified for the Commonwealth at trial, Freeman and two others were caught in one of the stores shortly after midnight.1 In defense, Freeman denied being in the store and commit*334ting any burglary and testified he was taken into police ‍​​‌‌‌​​‌‌‌​​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​‌​‌‌‌​​​​‌​​​​‌‍custody while walking along the street near the store.

On cross-examination, redirect exаmination and recross-examination, the following then ensued:

“[By Mr. Levine, assistant district attorney]: Q. Do you know of аny reason why Officer Marcus or Mc-Devitt would say that you were inside of Chabe’s wig shop? Me. Kelly: Objected to, sir. Thе Court: Overruled. By Me. Levine: Q. Did you understand my question, sir? A. Will you repeat it? Q. Yes. Do you know of any reason why Officers McDevitt or Marcus would say that you were found inside of Chabe’s wig shop? A. Yes, I believe it extended from a police station. Q. I am sorry. Would you explain that, sir? A. After we was taken to the police station and he went through our idеntification cards I had a parole registration card. Me. Kelly: Now, sir, I respectfully move for a mistrial. The Couet : It was volunteered by your client. Me. Kelly: It was on cross-examination over objection, sir. The Couet: I overruled your objection. By Me. Levine: Q. In any event, do you know of any reason why they would say that you were inside the store if you weren’t? A. I couldn’t make up any reason.”

Subsequently on redirect the following examinatiоn was conducted: “By Mr. Kelly: Q. Mr. Freeman, you started to give a reason why you believe Officer Marcus and Officer McDevitt would testify as they have. Would you kindly tell that reason to the jury? A. It was on behalf of the registration card. Q. What was that card? The Couet: Speak up, now. ‍​​‌‌‌​​‌‌‌​​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​‌​‌‌‌​​​​‌​​​​‌‍The Witness: When I was taken into the police station of Hunting Park when they were going through our things they found a registration card—parole registration card. Q. What does that mean, parole registration card? A. That I am on parole. Q. Is that for a crime that you were supposed to have committed? A. Yes. Q. Go ahead. A. After they *335found this card one of them remarked that he had to be оne of them because he had a registration card. I tried to explain it to them, but that’s like talking to myself.”

On reсross, the assistant district attorney then asked: “Q. Now, Mr. Freeman, maybe you can clear that up. What was this pаrole registration card for. Mr. Kelly: Objected to. The Court: Overruled. Mr. Levine : What particular crime were yоu on parole for? Mr. Kelly: Objected to. The Court: Overruled. The Witness: In 1959 I was on for burglary. By Mr. Levine: Q. You mean the same type of crime that you are charged with this time? A. Right. Mr. Kelly: I respectfully move for a mistrial, sir.”

The cross-examinаtion and recross-examination of Freeman by the district attorney, as above set ‍​​‌‌‌​​‌‌‌​​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​‌​‌‌‌​​​​‌​​​​‌‍forth, was in direct violation of the provisions of the Act of March 15, 1911, P. L. 20, 19 P.S. §711. See Commonwealth v. Barron, 438 Pa. 259, 264 A. 2d 710 (1970) ; and Commonwealth v. Davis, 396 Pa. 158, 150 A. 2d 863 (1959). It was, therefore, improper and should not have been рermitted. The contention that the prejudicial information was volunteered by Freeman is not supportеd by the record. Likewise, the contention of the Commonwealth that the error was harmless since Freemаn’s prior conviction for burglary could properly have been introduced in rebuttal cannot be sustained, in view of the absolute statutory mandate proscribing the asking of a criminal defendant on cross-examinаtion questions concerning his prior criminal record. See Commonwealth v. Dams, supra.

The order of the Superior Court and the judgment of the trial court are reversed and a new trial is granted.

Mr. Justice Nix took no part in the consideration ‍​​‌‌‌​​‌‌‌​​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​‌​‌‌‌​​​​‌​​​​‌‍оr decision of this case.

Notes

The officers entered vhe store after discovering a side door slightly ajar аnd marks indicating the lock liad been tampered with.



Concurrence Opinion

*336Concurring Opinion by

Mr. Justice Pomeroy:

Our statute, the Act of March 15, 1911, P. L. 20, §1, 19 P.S. §711, forbids the asking of the defendant a question the answer to whiсh would “[tend] to show that he has been committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged. . . There are two exceptions to this rule: (1) where the defendant “has given evidence tending to prove his own good reputation or character”, or (2) where the defendant has testified at trial against a co-defendant charged with the same offense. On cross-examination in the case at bar, the district attorney asked the defendant, who had taken the stаnd on his own behalf, whether he “[knew] of any reason why Officers McDevitt or Marcus would say that you were found inside Chabe’s wig shop?” The witness was being asked to explain a variance between his testimony and that of another witness. Absent a showing that the questioner knew or had reason to know that the answer would tend “to show that [the defendant] . . . has been convicted of any offense other than the one wherewith he shall then be charged . . I cannot see that the district attorney thereby violated the statute.

With respect to recross-examinаtion, however, I quite agree with the Court that in asking ‍​​‌‌‌​​‌‌‌​​‌​​​‌​​​​​‌‌‌‌​‌​‌‌‌​‌​‌‌‌​​​​‌​​​​‌‍“[w]hat was this parole registration card for”, the district attorney did violate 19 P.S. §711, and that the appellant, for that reason, is entitled to a new trial.