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COMMONWEALTH v. LITTLE (10/04/72)

SUPREME COURT OF PENNSYLVANIA


decided: October 4, 1972.

COMMONWEALTH
v.
LITTLE, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1967, No. 423, in case of Commonwealth of Pennsylvania v. La Dainty Little.

COUNSEL

Armand Della Porta, for appellant.

Milton M. Stein, Assistant District Attorney, with him William A. Boland, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: Pomeroy

[ 449 Pa. Page 29]

Appellant, La Dainty Little, was convicted by a jury of first degree murder and sentenced to life imprisonment. This is an appeal, nunc pro tunc, from the judgment of sentence.

Appellant advances two related trial errors for our consideration. During the presentation of her case, the defendant called a character witness who testified that La Dainty Little had an excellent reputation in her neighborhood for being a truthful, honest person. The first question presented is whether it was error for the district attorney to cross-examine this witness concerning a prior unrelated arrest of appellant.*fn1 The second

[ 449 Pa. Page 30]

    question is whether the trial court erred in referring to this prior arrest in its charge to the jury without indicating the purpose for which the question was asked, viz., impeachment of the witness, and instructing the jury that it had no probative value as to merits of the case being tried.*fn2

It is a well established general rule that evidence of a criminal defendant's prior arrests is inadmissible as tending to prove his disposition to commit crimes generally, or his commission of the specific crime for which he is then standing trial. See 3A Wigmore on Evidence, § 980a (Rev. Third Ed., 1970); American Law Institute, Model Code of Evidence, Rule 306 (1942). Wigmore has adequately summarized the purpose of this rule: ". . . a mere arrest or indictment will not be allowed to be inquired after, since the fact of arrest or indictment is quite consistent with innocence, and since the reception of such evidence is merely the reception of somebody's hearsay assertion as to . . .

[ 449 Pa. Page 31]

    guilt. To admit this would involve a violation both of the hearsay rule and of the rule forbidding extrinsic testimony of misconduct." 3A Wigmore on Evidence, § 980a (Rev. Third Ed., 1970). When, however, the defendant introduces evidence of his own good character, as was done in the instant case, the Commonwealth is permitted to cross-examine the character witnesses "as to whether or not they ever heard persons in the neighborhood attribute particular offenses to the defendant." Commonwealth v. Jenkins, 413 Pa. 606, 607-08, 198 A.2d 497, 498 (1964). (Emphasis in original.)

Such cross-examination is allowed for the purpose of testing the accuracy of the character witness' testimony to determine whether he is indeed thoroughly familiar with the defendant's reputation in the community. Commonwealth v. Becker, 326 Pa. 105, 191 A. 351 (1937); Commonwealth v. Thomas, 282 Pa. 20, 127 Atl. 427 (1925). Under this exception to the general rule the prosecution has been permitted to question a character witness as to a prior arrest, whether or not it culminated in an indictment, trial or conviction. Michelson v. United States, 335 U.S. 469, 93 L. Ed. 168 (1948); Commonwealth v. Amos, 445 Pa. 297, 300, 284 A.2d 748 (1971).

The appellant asks us now to outlaw as unduly prejudicial any reference to prior arrests of a defendant as a means of testing, on cross-examination, the qualifications or credibility of a character witness. While there are strong arguments for such limitation of cross-examination,*fn3 we decline to consider them in this case because the issue is not properly before us.

[ 449 Pa. Page 32]

Defendant made no objection to the question relative to prior arrest, as quoted in footnote 1, nor to the portion of the judge's charge, quoted in footnote 2, which referred to the prior arrest.*fn4 See Pa. R. Crim. P. 119(b). The points now raised are presented for the first time on this appeal. As such, they will not be entertained. Commonwealth v. Jones, 446 Pa. 223, 285 A.2d 477 (1971); Commonwealth v. Baiardi, 445 Pa. 353, 284 A.2d 796 (1971); Commonwealth v. Bittner, 441 Pa. 216, 272 A.2d 484 (1971); Commonwealth v. Myers, 439 Pa. 381, 266 A.2d 756 (1970).*fn5

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.


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