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COMMONWEALTH v. JENKINS (03/17/64)

March 17, 1964

COMMONWEALTH
v.
JENKINS, APPELLANT.



Appeal, No. 134, Jan. T., 1963, from judgment of Court of Oyer and Terminer of Philadelphia County, Aug. T., 1960, No. 345, in case of Commonwealth of Pennsylvania v. William Alfred Jenkins. Judgment reversed.

COUNSEL

A. Benjamin Johnson, Jr., for appellant.

Vincent C. Veldorale, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Eagen

[ 413 Pa. Page 607]

OPINION BY MR. JUSTICE EAGEN

The defendant, William Alfred Jenkins, after indictment and trial was found guilty by a jury of murder in the first degree. The sentence was fixed at life imprisonment. Following the denial of a new trial and imposition of sentence, an appeal to this Court followed.

An examination of the record discloses prejudicial error, which requires the grant of a new trial.

The grandmother of the defendant was called on his behalf to testify, inter alia, concerning his previous good reputation in the community. Immediately after her declaration that his reputation was excellent, the Commonwealth's counsel was permitted, over objection, to pursue cross-examination in the following manner: "Q. You had heard, hadn't you, that away back on July 9, 1953, he was arrested as a juvenile for burglary, malicious mischief. Going into Landrich School at 23rd and Federal Streets? You had heard that, hadn't you? ... Q. You have heard, haven't you, that in December 1953, he had been arrested on a couple of charges of larceny and he at that time, you had heard, was taken away from home and had gone to Glen Mills?"

It is clear to us that this line of questioning was primarily for the purpose of calling to the attention of the jury particular acts of prior misconduct on the part of the defendant and was, therefore, improper. Character witnesses may legitimately be questioned as to whether or not they ever heard persons in the neighborhood

[ 413 Pa. Page 608]

    attribute particular offenses to the defendant. This is allowable for the purpose of testing the accuracy of the witness's testimony by showing that he or she is not thoroughly familiar with the reputation concerning which he has testified. However, prejudicial questions, which obviously are for the purpose of showing the commission of a specific crime or crimes for which the defendant is not presently accused, are not legitimate or fair on cross-examination. That the examination concerned was prejudicial is beyond argument. See, Com. v. Beck, 122 Pa. Superior Ct. 123, 184 A. 761 (1936); Commonwealth v. Hurt, 163 Pa. Superior Ct. 232, 60 A.2d 828 (1948); Commonwealth v. Thomas, 282 Pa. 20, 127 A. 427 (1925); Commonwealth v. Becker, 326 Pa. 105, 191 A. 351 (1937).

The Commonwealth argues that because the questions were prefaced with the words, " You had heard," that the inquiries were necessarily directed to whether or not the witness had heard in the community that the defendant was charged with the commission of the crimes mentioned. But this does not follow. The witness could truthfully answer the questions affirmatively and "have heard" the matters referred to from the defendant ...


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