Com. v. Scott

• Decision Date: 05 November 1981
• Parties: COMMONWEALTH of Pennsylvania, v. Harold L. SCOTT, Appellant.
• Court: Pennsylvania Supreme Court

Page 607

436 A.2d 607

496 Pa. 188

COMMONWEALTH of Pennsylvania, v. Harold L. SCOTT, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 15, 1981.

Decided Nov. 5, 1981.

Paul D. Boas, Berlin, Boas, Isaacson & Logan, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.

OPINION OF THE COURT

O'BRIEN, Chief Justice.

Appellant Harold L. Scott was originally convicted of murder of the first degree and a violation of the Uniform Firearms Act. Post-verdict motions were denied and appellant was sentenced to life imprisonment with a concurrent prison term of two and one-half to five years for the firearms violation. On direct appeal, this Court reversed and granted appellant a new trial because the trial court erred in refusing to admit evidence concerning prior racial incidents in the neighborhood. Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1978).

On retrial, which is the subject matter of this appeal, appellant was convicted of murder of the third degree and a violation of the Uniform Firearms Act. Post-verdict motions again were denied and appellant was sentenced to a prison term of ten to twenty years with a consecutive prison term of one and one-half to five years for the firearms violation. This appeal followed.

The facts are set out in detail in our opinion following appellant's direct appeal from the original trial. For our purposes here it is sufficient to note that appellant, a black man, shot a white victim following a racial incident. The Commonwealth's witnesses, friends of the victim, testified that appellant had not been provoked. Appellant has claimed that he acted in self-defense.

Appellant argues that the evidence was insufficient to sustain his conviction for violating the Uniform Firearms Act. Appellant was convicted of violating 18 Pa.C.S.A. § 6106, which provides:

"No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license..."

Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 6106. Appellant claims that since the Commonwealth offered no proof of concealment, the evidence was insufficient to sustain this conviction.

In Commonwealth v. Butler, 189 Pa.Super. 399, 403, 150 A.2d 172, 173 (1959), the Court stated:

"... The issue of concealment depends on the particular circumstances present in each case, and is a question for the trier of fact."

Two Commonwealth witnesses testified that they saw appellant pull from his waistband something that looked like a gun. Appellant, on the other hand, testified that he approached the group with his gun in his hand, making no attempt to conceal the weapon. Resolving questions of credibility is a function of the trier of fact and apparently the jury chose to believe the Commonwealth witnesses and disbelieve appellant. Further, the testimony of the two Commonwealth witnesses referred to above is sufficient to sustain the jury's conclusion that appellant had, in fact, concealed the weapon. Accord: Commonwealth v. Horshaw, 237 Pa.Super. 76, 346 A.2d 340 (1975). Appellant's argument is thus without merit.

Appellant also argues that the trial court erred in ruling that proposed defense witnesses, who intended to testify that appellant had a good reputation for honesty and peacefulness, could be cross-examined about appellant's two prior arrests, neither of which had led to a conviction. The facts are as follows.

Near the end of the Commonwealth's case-in-chief appellant's attorney informed both the court and the prosecutor, outside of the jury's presence, that as part of appellant's defense he intended to call various witnesses who would testify that appellant had a reputation for being honest and peaceful in the community. Appellant's attorney then asked the trial court to rule preliminarily that the prosecution be prohibited from asking the proposed witnesses on cross-examination if they had heard people in the community mention that appellant had, on two prior occasions, been arrested and charged with assaulting his wife and illegally possessing a firearm. Although neither of the arrests resulted in a conviction, the court denied appellant's request. Because of the court's ruling, appellant's trial counsel announced he would not call the proposed witnesses.

This Court has stated:

"It is a well established general rule that evidence of a criminal defendant's prior arrests is inadmissible as tending to prove his disposition to commit crimes generally, or his commission of the specific crime for which he is then standing trial. See 3A Wigmore on Evidence, § 980a (Rev. Third Ed., 1970); American Law Institute, Model Code of Evidence, Rule 306 (1942). Wigmore has adequately summarized the purpose of this rule: '... a mere arrest or indictment will not be allowed to be inquired after, since the fact of arrest or indictment is quite consistent with innocence, and since the reception of such evidence is merely the reception of somebody's hearsay assertion as to ... guilt. To admit this would involve a violation both of the hearsay rule and of the rule forbidding extrinsic testimony of misconduct.' 3A Wigmore on Evidence, § 980a (Rev. Third Ed., 1970). When, however, the defendant introduces evidence of his own good character, as was done in the instant case, the Commonwealth is permitted to cross-examine the character witnesses 'as to whether or not they ever heard persons in the neighborhood attribute particular offenses to the defendant.' Commonwealth v. Jenkins, 413 Pa. 606, 607-08, 198 A.2d 497, 498 (1964). (Emphasis in original.)

"Such cross-examination is allowed for the purpose of testing the accuracy of the character witness' testimony to determine whether he is indeed thoroughly familiar with the defendant's reputation in the community. Commonwealth v. Becker, 326 Pa. 105, 191 A. 351 (1937); Commonwealth v. Thomas, 282 Pa. 20, 127 Atl. 427 (1925). Under this exception to the general rule the prosecution has been permitted to question a character witness as to a prior arrest, whether or not it culminated in an indictment, trial or conviction. Michelson v. United States, 335 U.S. 469 (69 S.Ct. 213), 93 L.Ed. 168 (1948); Commonwealth v. Amos, 445 Pa. 297, 300, 284 A.2d 748 (1971)."

Commonwealth v. Little, 449 Pa. 28, 30-31, 295 A.2d 287, 289 (1972). Appellant specifically asks, however, that we overrule prior case law to the extent that it allowed cross-examination of character witnesses concerning arrests which did not result in convictions.

The entire area of the law concerning character witnesses is generally recognized as somewhat of a paradox. As Professor McCormick has stated "By a rule of relatively recent origin and doubtful expediency, the only way in which character ... can be proved is by evidence of reputation. This excludes evidence of specific acts or blameless life and rules out opinion evidence as to the character of the accused for the trait in question based on the witness' knowledge and observation. Reputation evidence, though muted and colorless, is thought to have the advantage of avoiding distracting side issues as to particular acts and incidents in the past life of the accused. The same advantage is, however, also possessed by opinions and exclusion of this latter type of convincing evidence is difficult to justify."

McCormick on Evidence, § 191, at 455-56 (2d Ed., 1972) (footnotes omitted). Character witnesses, like any other witnesses, can be subjected to cross-examination and it is the scope of the cross-examination that has been a troublesome area for courts, commentators and the profession.

A vast majority of jurisdictions allow inquiry into past arrests, even if not resulting in convictions, for the reason set forth in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

"Arrest without more may nevertheless impair or cloud one's reputation. False arrest may do that. Even to be acquitted may damage one's good name if the community receives the verdict with a wink and chooses to remember the defendant as one who ought to have been convicted. A conviction, on the other hand, may be accepted as a misfortune or an injustice, and even enhance the standing of one who mends his ways and lives it down. Reputation is the net balance of so many debits and credits that the law does not attach the finality to a conviction, when the issue is reputation, that is given to it when the issue is the credibility of the convict.

"The inquiry as to an arrest is permissible also because the prosecution has a right to test the qualifications of the witness to bespeak the community opinion. If one never heard the speculations and rumours in which even one's friends indulge upon his arrest the jury may doubt whether he is capable of giving any very reliable conclusions as to his reputation."

Id. at 482-83, 69 S.Ct. at 221-22. In these jurisdictions, the inquiry is generally limited to questions in the form, "Have you heard that the defendant was arrested?" Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971). Further, where such questioning is permitted, a cautionary instruction must be...