Appeal from judgment of Court of Oyer and Terminer of Allegheny County, Sept. T., 1966, Nos. 15, 16 and 17, in case of Commonwealth v. Johnnie Lee Smith.
John A. Dean, with him Daniel T. Zamos, for appellant.
Charles B. Watkins and Carol Mary Los, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones concurs in the result. Mr. Justice Cohen and Mr. Justice Eagen dissent. Mr. Justice Musmanno took no part in the consideration or decision of this case.
This is an appeal from the judgment of the Court of Oyer and Terminer of Allegheny County. Appellant was tried and convicted of first degree murder, and, after denial of his post-trial motions, was sentenced to life imprisonment.
Appellant does not here contest the sufficiency of the evidence, but asserts that certain trial errors should
entitle him to a new trial. The evidence shows that appellant, with two other men, both of whom have been convicted of first degree murder and sentenced to life imprisonment, participated in a robbery of a jewelry store in the Plaza Building in Pittsburgh. In the course of that robbery, an exchange of gunfire occurred, the owner of the store was killed, and one of the felons, Garfield Gordon was badly wounded. The felons made their getaway in a white Buick owned by appellant. Three witnesses identified appellant as the driver of the car. The only other facts relevant for our purposes are derived from the testimony of Charles Gordon, the brother of Garfield Gordon. Charles testified that William Murray, the third participant, brought Garfield, seriously wounded, to his, Charles', home shortly after the killing. Charles stated that Garfield and he had conversed, but did not reveal what was said in that conversation.
Two errors are alleged. One is that the court below erred in permitting the appellant to be cross-examined as to his prior arrests which did not result in convictions. The court held that appellant had put his character in issue when, after he was asked if he had had any difficulty with the police, he narrated only two convictions, and emphasized several mitigating circumstances with regard to those. This testimony, the court indicated, led to the inference that appellant's character was good on the whole. He thus held that questions as to prior arrests not leading to convictions were proper under the first exception in the Act of March 15, 1911, P. L. 20, § 1, 19 P.S. § 711:
"Hereafter any person charged with any crime, and called as a witness in his own behalf, shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he had committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged,
or tending to show that he has been of bad character or ...