Com. v. Cabeza, No. 32

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before ROBERTS; LARSEN; NIX; McDERMOTT; McDERMOTT; HUTCHINSON
• Citation: 469 A.2d 146,503 Pa. 228
• Docket Number: No. 32
• Decision Date: 29 December 1983
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Davico L. CABEZA, Appellee. E.D. 1983.

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469 A.2d 146 503 Pa. 228 COMMONWEALTH of Pennsylvania, Appellant,
v.
Davico L. CABEZA, Appellee. No. 32 E.D. 1983. Supreme Court of Pennsylvania. Argued Oct. 17, 1983.
Decided Dec. 29, 1983.

[503 Pa. 229] Eric B. Henson, Deputy Dist. Atty., Garold E. Tennis, Philadelphia, for appellant.

Norris E. Gelman, Philadelphia, for appellee.

Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

[503 Pa. 230] OPINION

LARSEN, Justice.

On November 3, 1979, the appellee, Davico L. Cabeza, was convicted by a jury of first degree murder in the shooting death of Mrs. Helen Cook in a West Philadelphia Lounge. Following the denial of post trial motions, the court sentenced appellee to life imprisonment. Upon appeal from the judgment of sentence, a three judge panel of the Superior Court reversed and remanded for a new trial. ¹ The court decided that a new trial was required because during cross-examination of appellee's character witnesses, the prosecutor, over defense counsel's objections, was permitted to pursue

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questions concerning two prior arrests of the appellee. Neither of the arrests about which the witnesses were interrogated had resulted in a conviction. ²

In reversing the judgment of sentence, the Superior Court relied on our holding in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), decided on November 5, 1981. ³ In Scott we rejected the rule that allowed a prosecutor to cross-examine character witnesses as to mere arrests of the accused. Speaking for a unanimous court, then Chief Justice O'Brien stated:

Under this rule which we abrogate, the cross-examination must have pertained to arrests which relate to the character trait vouched for on direct. McCormick on [503 Pa. 231] Evidence, § 191, n. 14 (2d Ed.1972). Thus, the Commonwealth would have been permitted to ask appellant's character witness if they had heard that appellant had been arrested for assaulting his wife and on a weapons charge. Despite any cautionary instruction the court may have given the jury, the undue prejudice to appellant is obvious. On one hand, the jury would have heard that appellant had a reputation for being peaceful while on the other hand, the jury would also have heard that appellant had been arrested on two charges. Had appellant been convicted of the charges, it would be easier to say that he must suffer the consequences of placing his character at issue. But instantly, the arrests which would have been alluded to never resulted in convictions. Since an arrest is equally consistent with either guilt or innocence, the cases allowing such cross-examination are overruled.

Commonwealth v. Scott, 496 Pa. at 196, 197, 436 A.2d at 611, 612.

The sole issue in this appeal is whether the rule announced in Commonwealth v. Scott, supra. Should be applied retroactively to appellee's case which was pending on appeal at the time of the Scott decision.

In the present case, the appellee's only defense was his good character. He called four witnesses who offered testimony to that effect. During the cross-examination of two of the character witnesses, the prosecutor asked whether the witness ever heard that the appellee was arrested twice previous to the arrest for which he was then on trial. This line of inquiry was sanctioned by prior case law ⁴ and the trial judge overruled appellee's objections. In his post trial motions and in his appeal to the Superior Court the appellee preserved and argued the issue of unfair and improper cross-examination of his character witnesses.

The appellant Commonwealth argues that appellee's trial was fairly conducted in accordance with the law then pertaining. Further, it is urged that the evidentiary rule established in Scott is not of constitutional dimensions and [503 Pa. 232] should not be applied to appellee's trial which occurred two years before the Scott decision.

In August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981) we considered the question of retroactive application of an overruling decision in the environment of a civil case. ⁵

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The question in August was whether an insurance policy provision would be enforced in accordance with the approach which prevailed at the time of trial, or under a rule change announced while the appeal in August was pending. We said there that since no distinction could be drawn between the appellant in August and the injured litigant in the overruling case, the same relief should be available. Considering the similarity of the facts in August to those of the overruling case, we noted that August may well have been the case which set aside prior law if the overruling case had not been decided while August was pending on appeal.

"[O]ur rule in civil cases which applies the law in effect at the time of appellate decision applies with equal force to criminal proceedings."

Commonwealth v. Brown, 494 Pa. 380, 384, 431 A.2d 905, 907 (1981).

"Evenhanded decision making requires that similiarly situated individuals on direct appeal be treated the same."

Commonwealth v. Brown, 494 Pa. at 385, 431 A.2d at 908.

In the present case, as in Scott, the lower court ruled that character witnesses could be cross-examined as to previous arrests of the accused which did not result in convictions. In both cases, a defense challenge to the ruling was raised during trial and the issue preserved and argued in post trial motions and on appeal. The only noteworthy difference between Scott and the appellee is that Scott was...