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COMMONWEALTH v. ROSS (04/23/69)

decided: April 23, 1969.

COMMONWEALTH
v.
ROSS, APPELLANT



Appeal from order of Superior Court, Oct. T., 1967, Nos. 980, 1018, and 1019, affirming judgment of Court of Quarter Sessions of Philadelphia County, March T., 1967, No. 935, in cases of Commonwealth v. Emma Ross, and Same v. Tony Ross.

COUNSEL

Dennis H. Eisman, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, Assistant District Attorney, with him Ivan Michaelson Czap, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 434 Pa. Page 169]

Emma and Tony Ross, husband and wife, were convicted by a jury in Philadelphia of aggravated assault and battery, assault and battery and assault with intent to murder. Post-trial motions for a new trial and in arrest of judgment were denied. Subsequently, Tony Ross was sentenced to serve a term of imprisonment of from 2 to 5 years, and Emma Ross was sentenced to the correctional institution at Muncy under the Act of July 25, 1913, P. L. 1311, as amended, 61 P.S. 566. On appeal to the Superior Court, the judgments of sentence were affirmed, Judge Hoffman dissenting. We allowed allocatur.

That the evidence was sufficient to warrant the convictions is not questioned. Certainly from that evidence, the jury could find that, without provocation, Tony Ross attacked Lucius Whitaker, a long-time friend and a frequent visitor in the Ross home, with a knife and inflicted severe and serious stab wounds upon his body. The jury could also find that while Whitaker was struggling with Tony Ross in an effort to protect himself, Emma Ross stabbed Whitaker in the back with a tenpenny nail. It is, however, asserted that two trial errors necessitate a reversal of the judgments and a retrial.

At trial Tony Ross did not testify personally. However, Emma Ross did testify and her version of the occurrence differed substantially from that given by Whitaker. She stated that Whitaker was under the influence of intoxicants at the time and that he suddenly jumped upon her husband and struck him with a gun, and that he then shot her in the neck and arm. During his testimony, Whitaker denied that he had a gun or that he saw one at any time during the assault.

During Whitaker's cross-examination, the appellants' counsel attempted to inquire whether or not Whitaker had been arrested by the police and charged

[ 434 Pa. Page 170]

    with shooting Emma Ross on the occasion involved. An objection to this line of inquiry was sustained. It is now urged that this constituted prejudicial error and denied the appellants their right to place before the jury facts which might tend to impeach the witness' credibility.

The fact that a witness who has testified in a criminal prosecution has been convicted of a felony or of a misdemeanor in the nature of crimen falsi may be brought out as bearing on his credibility. Commonwealth v. Jones, 334 Pa. 321, 5 A.2d 804 (1939). As a general rule, however, there must be a conviction of the felony or misdemeanor before such evidence is relevant, because there is a vast difference between a conviction and a mere accusation. An inquiry as to a mere arrest or indictment is not permitted because an arrest or an indictment does not establish guilt, and the reception of such evidence would merely constitute the reception of somebody's hearsay assertion of the witness' guilt. 3 Wigmore, Evidence ยง 980(a) (3d ed. 1940). However, our courts have recognized an exception to this rule and have held that if a witness is under indictment for the same crime, or a crime growing out of it, or a crime closely related to the very offense for which the defendant is being tried, so as to form part of the same occurrence, then evidence of his indictment is relevant as bearing on the witness' interest in the immediate matter. Commonwealth v. Mulroy, 154 Pa. Superior Ct. 410, 36 A.2d 337 (1944). Cf. also Commonwealth v. Gable, 171 Pa. Superior Ct. 468, 90 A.2d 301 (1952).

In the instant case, the appellants, although recognizing that Whitaker was not under indictment for any crime at the time he testified, and therefore, that Commonwealth v. Mulroy, supra, does not control, still maintain there is no logical reason in this ...


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