Appeals from judgment of Court of Quarter Sessions of Philadelphia County, Feb. T., 1965, Nos. 655, 656, and 657, in case of Commonwealth of Pennsylvania v. Lawrence Rouse.
Bernard L. Segal, First Assistant Defender, with him Herman I. Pollock, Defender, for appellant.
Vincent C. Veldorale, Assistant District Attorney, with him Joseph M. Smith, 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 Jacobs, J. Dissenting Opinion by Hoffman, J.
[ 207 Pa. Super. Page 420]
This appeal is taken by defendant from judgment of sentence imposed after his motions in arrest of judgment and for a new trial were denied by the lower court.
Defendant was tried before the Honorable John J. McDevitt, of Philadelphia County, sitting without a jury, and convicted of assault and battery, indecent assault, aggravated assault and battery, assault and battery with intent to ravish, sodomy, and corrupting the morals of a minor child. The acts involved defendant's eight-year old daughter.
In his first argument, defendant contends that reference to his criminal record by the district attorney and the use in rebuttal of evidence of acquittals, an ignored charge, and of convictions of misdemeanors not involving crimen falsi "were so fundamentally prejudicial that it could not be cured by the later granting of a motion to strike."
Defendant took the witness stand, denied performing the acts, and stated that his wife influenced his child to falsely accuse him of the offenses. To impeach defendant's credibility, the assistant district attorney sought to introduce evidence of his prior record. Prior to the production of the record and while defendant was on the witness stand, a colloquy took place between the judge and the assistant district attorney in regard to the method of producing defendant's record. Mention
[ 207 Pa. Super. Page 421]
of the record was objected to by the Voluntary Defender as being prejudicial. His motion for the withdrawal of a juror was overruled. The record was not introduced at that time; nor were any questions concerning it asked. Later, in rebuttal, a clerk of the court of quarter sessions read to the court the record consisting of a 1963 conviction of solicitation to commit sodomy and corrupting the morals of a minor, a 1961 conviction of burglary and conspiracy, a 1958 acquittal of larceny of an automobile, a 1952 conviction of larceny, a 1960 acquittal of loitering and prowling, and a 1960 charge of possession of burglary tools which was ignored by the grand jury. Defense counsel again moved for the withdrawal of a juror which was overruled. Later the court granted defense counsel's motion to strike out all the testimony concerning defendant's record except the 1963 conviction of solicitation to commit sodomy.
If this had been a trial before a jury, defendant's argument would be a more compelling one. However our examination of the record of a trial without a jury differs in certain respects from our examination of a jury trial record. Commonwealth v. Horn, 186 Pa. Superior Ct. 429, 140 A.2d 847 (1958). In the case of a trial before a jury, we must be mindful that twelve laymen, unlearned in the technicalities of the rules of evidence, can be easily confused or prejudiced by certain evidence admissible as having value for one purpose but not for another. When the defendant waives a jury trial, we have a right to expect a more perceptive and judicious application of the rules of evidence by a trial judge, learned in the law. A judge, unlike a layman, knows that only convictions of felonies or misdemeanors ...