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COMMONWEALTH v. SELKOW (09/16/65)

decided: September 16, 1965.

COMMONWEALTH
v.
SELKOW, APPELLANT



Appeals from judgment of Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, Oct. T., 1963, Nos. 333, 334, and 335, in case of Commonwealth of Pennsylvania v. Herman Selkow.

COUNSEL

Herbert K. Fisher, with him Bloom, Ocks & Fisher, for appellant.

Joseph M. Smith, Assistant District Attorney, with him William G. Klenk, II, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J. Wright, J., would affirm upon the opinion of the court below.

Author: Watkins

[ 206 Pa. Super. Page 274]

This is an appeal from the judgment of sentence of the Court of Quarter Sessions of Philadelphia County entered upon a verdict of a jury finding the defendant-appellant, Herman Selkow, guilty of false pretenses and uttering a fraudulent instrument; and from the denial

[ 206 Pa. Super. Page 275]

    of the court below of a motion for a new trial. The indictments charged the defendant with forgery and cashing checks drawn on the First Pennsylvania Banking and Trust Company, Philadelphia, Pa. The defendant testified in denial of the charges and presented the testimony of three character witnesses as to his reputation for honesty and as a peaceful and law-abiding citizen.

The defendant complains that the court committed fundamental error in permitting the cross-examination of his character witnesses concerning an alleged arrest for a crime committed in California and the introduction into evidence of a requisition of the State of California seeking the extradition of the defendant with attached affidavit to support the charges of passing worthless checks; and that the court below abused its discretion in refusing a new trial when his constitutional rights to a fair trial had been prejudiced by this action.

The questions complained of were a part of the cross-examination by the Commonwealth of his first character witness and were as follows: "Q. Did you hear, among those people that you have discussed Mr. Selkow's reputation, that in July of this past year he was arrested as a fugitive from California for passing worthless checks? . . . Q. With intent to defraud? A. No. Q. Have you heard about that arrest? A. Have I heard about it? Yes. . . . Q. You read about it in the newspapers? Did you know that he was presently wanted in the State of California for that crime? A. No, I didn't." In the examination of the second character witness, it went as follows: "Q. Have you heard, among these people that you have discussed Mr. Selkow's reputation of his arrest, and the fact that he is now wanted in California for issuing and passing checks without sufficient funds with intent to defraud? A. No, I haven't. Q. You have never heard of that? A. No." In examining the third character witness the

[ 206 Pa. Super. Page 276]

    questioning went as follows: "Q. You heard the charges that he is wanted in California? A. This morning, yes." During the questioning, over the objection of the defendant, motions were made on several occasions for the withdrawal of a juror which were denied. The Commonwealth then offered and the court permitted the introduction of the requisition from the State of California for the return of the defendant on the charge of passing worthless checks for the purpose of supporting the testimony given.

The cross-examination of character witnesses as to specific acts of the defendant for the purpose of testing his knowledge of the speech of the community and his credibility is an exception to the general rule that does not permit impeachment of witnesses by extrinsic testimony of such acts. Com. v. Butts, 204 Pa. Superior Ct. 302, 204 A.2d 481 (1964). ". . . Character witnesses may legitimately be questioned as to whether or not they ever heard persons in the neighborhood 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 ...


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