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COMMONWEALTH PENNSYLVANIA v. CLAUDEL BROWN (04/19/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 19, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
CLAUDEL BROWN, A/K/A CLAUDEL SMITH, APPELLANT

Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, January Term, 1974, No. 1435.

COUNSEL

John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., files a dissenting opinion.

Author: Hoffman

[ 247 Pa. Super. Page 402]

Appellant raises the following contentions: (1) the grand jury lacked authority to indict him; (2) he was deprived of his right to challenge the array of the grand jury; (3) the lower court impermissibly condoned the prosecutor's cross-examination of two defense witnesses as to their religious beliefs; (4) the lower court improperly admitted out-of-court statements made by a non-testifying eyewitness; (5) the lower court erroneously allowed testimony concerning appellant's prior criminal record; and (6) the lower court improperly allowed testimony concerning appellant's arrest for an earlier robbery. Because we agree that the lower court erred in allowing the cross-examination of two defense witnesses as to their religious beliefs, we vacate the judgment of sentence and grant appellant a new trial.

On December 27, 1973, appellant was arrested and charged with robbery*fn1 and criminal conspiracy.*fn2 The charges stemmed from a robbery of the Aquarius Bar at 2564 N. 7th Street in Philadelphia earlier that night. After a preliminary hearing, a Philadelphia County grand jury indicted appellant on January 24, 1974. Trial commenced on October 1, 1974, in the Court of Common Pleas of Philadelphia County, but terminated on October 8, when the jury could not reach a verdict. The Commonwealth scheduled a

[ 247 Pa. Super. Page 403]

    retrial for January 10, 1975. Immediately prior to trial, appellant made an oral motion to quash the indictment because the grand jury had been illegally constituted and because appellant had not been afforded his right to challenge the grand jury array. The lower court rejected this motion, and trial commenced before a jury in the Philadelphia Court of Common Pleas. On January 16, 1975, the jury found appellant guilty of robbery and not guilty of conspiracy. After the lower court denied appellant's post-verdict motions,*fn3 it sentenced appellant to a four-to-ten years' term of imprisonment. This appeal followed.

Appellant first contends that the grand jury had no power to issue an indictment in his case and that proceedings could only be instituted by information. Prior to November 6, 1973, Article I, § 10 of the Pennsylvania Constitution prohibited the initiation of a criminal prosecution by information. On November 6, 1973, Pennsylvania voters approved a constitutional amendment which provided, in pertinent part: "Each of the several courts of common pleas may, with the approval of the Supreme Court, provide for

[ 247 Pa. Super. Page 404]

    the initiation of criminal proceedings therein by information filed in the manner provided by law." On December 17, 1973, the President Judge of the Court of Common Pleas of Philadelphia County petitioned the Supreme Court for permission to replace the system of grand jury indictments with a system of instituting proceedings by information; this change would be effective on January 1, 1974. The Supreme Court granted this petition. During the month of January, 1974, an indicting grand jury continued to function in Philadelphia*fn4 and on January 24, the grand jury indicted appellant. On February 15, 1974, the Supreme Court promulgated Rules of Criminal Procedure pertaining to the filing of informations. See Pa.R.Crim.P. 225 et seq.; 19 P.S. Appendix. On February 27, 1974, the President Judge petitioned the Supreme Court for permission to postpone the effective date of initiation of criminal proceedings by information; the Supreme Court granted this petition. On October 10, 1974, the Pennsylvania legislature passed legislation implementing a system of initiating prosecutions by information in counties which had received the Supreme Court's permission to institute such a system.*fn5 The legislature specified the procedures to be followed in prosecutions initiated by information. On October 22, 1974, the President Judge once again petitioned the Supreme Court to permit the use of informations instead of indictment by grand jury; once again, the Supreme Court granted the petition, effective January 1, 1976. On December 23, 1974, the Supreme

[ 247 Pa. Super. Page 405]

Court issued the following final order which terminated the parade of petitions and postponements:

"AND NOW, to wit, this 23rd day of December, 1975, our Orders heretofore entered granting approval to abolish indicting grand juries are amended to provide:

"Approval granted to abolish indicting grand jury, effective January 1, 1976. Effective January 1, 1976, no grand jury shall be empaneled for the purpose of considering bills of indictment, and no grand jury shall be held over from a prior term as an indicting grand jury. In lieu thereof, proceedings against criminal defendants shall be by information."

We reject appellant's contention that the Philadelphia County Grand Jury lacked power to indict him. We believe that the Supreme Court did not intend to make mandatory the initiation of criminal proceedings by information in Philadelphia County before appropriate rules or statutory provisions governing the information process had been promulgated. Article I, § 10 of the Pennsylvania Constitution provides that courts of common pleas may with the approval of the Supreme Court, "provide for the initiation of criminal proceedings therein by information filed in the manner provided by law." (Emphasis supplied). As of January 24, 1974, the legislature had not passed implementing legislation and the Supreme Court had not issued governing rules of criminal procedure; we will not infer that the Supreme Court meant to require the use of an information when the legal framework of rules mandated by the Constitution had not yet been erected. Cf. In re Investigation of January 1974 Philadelphia County Grand Jury, 458 Pa. 586, 598 n. 5, 328 A.2d 485, 494 n. 5 (1974). It was not until the order of December 23, 1975, after the legislature had enacted an enabling statute and the Supreme Court had created applicable rules of criminal procedure, that the Supreme Court issued a final order which amended all previous orders and terminated the initiation of criminal prosecutions by grand jury indictment in Philadelphia County. Consequently, we

[ 247 Pa. Super. Page 406]

    conclude that the January 1974 Philadelphia County grand jury had power to indict appellant.*fn6

[ 247 Pa. Super. Page ]

Appellant next contends that the lower court erroneously permitted the Commonwealth to cross-examine two defense witnesses as to their religious affiliation and beliefs. The defense presented one witness who testified that he saw appellant in the Page Three Bar at Germantown Avenue and Haines Street in Philadelphia at 8:00 p. m., on December 27, 1973, the night that appellant allegedly robbed the Aquarius Bar. On cross-examination, the prosecutor and the witness engaged in the following interchange:

"Q. When you say 'brother', what do you mean by 'brother'?

"[Defense counsel]: Objection.

"THE COURT: Overruled.

"[Assistant District Attorney]:

"Q. What do you mean by that?

"A. More or less like my religion, we call each other brother, that is what I mean.

"Q. Any relation -- you're a Muslim; is that correct?

[ 247 Pa. Super. Page 407]

"[Defense counsel]: Yes.

"THE COURT: Overruled.

"THE WITNESS: Yes, I'm a Muslim.

"[Assistant District Attorney]:

"Q. THAT is why you refer to him as brother. That is why you affirm and now swear; is that correct?

"[Defense counsel]: Objection.

"THE COURT: Overruled.

"THE WITNESS: That is correct.

"[Assistant District Attorney]:

"Q. Is it part of your religion, do you have an X in your middle name; is that correct?

"[Defense counsel]: Objection.

"THE COURT: Overruled.

"THE WITNESS: Yes, sir.

"[Assistant District Attorney]:

"Q. Does that mean that you're actually full fledged Muslim?

"[Defense counsel]: Objection.

"THE COURT: Overruled.

"THE WITNESS: Yes, sir.

"[Assistant District Attorney]:

"Q. You're a full brother in the Muslim Mosque, I take it?

"A. Yes, sir.

"Q. And yet, what is the significance of the X?

"[Defense counsel]: Objection.

"THE COURT: I don't know how relevant all this is.

"[Assistant District Attorney]: I think it is, Your Honor, I will get to it shortly.

"THE COURT: All right, overruled.

"[Assistant District Attorney]:

[ 247 Pa. Super. Page 408]

"Q. What is the significance of the X?

"A. What is the significance of the X?

"[Defense counsel]: Your Honor, I have a standing objection to any of this line.

"THE COURT: We have heard it, . . .

"[Defense counsel]: Regarding religion, Your Honor.

"THE COURT: All right.

"[Assistant District Attorney]:

"Q. What is the significance?

"A. Like I am X, considered X-smoker, X-drinker, X-anything X.

"Q. It signifies that you have been purified, in other words?

"A. In other words, changed in my ways.

"Q. As a result of your religion, you're not allowed to go into bars, are you?

"A. I am. I can go in bars, as far as sitting down and drinking, no, sir.

"Q. Aren't you disallowed from even going into a place that sells alcohol, under your religion?

"A. No, sir, long as I don't get involved with it myself.

"Q. You can go in there as long as --

"A. Yes, sir.

"Q. As a matter of fact, I believe in your religion, one of the basic tenets is that the law of the city and county does not apply to the brothers; is that correct?

"A. Sir?

"THE COURT: I am going to sustain that objection."

Subsequently, the prosecutor asked the witness if he knew any other people in the bar that night. When the witness replied that he knew one person, the prosecutor asked if this person were also a Muslim. The witness responded affirmatively. The prosecutor then asked if this person had an "X" in his middle name and what this person was doing in the

[ 247 Pa. Super. Page 409]

    bar. The witness answered that his acquaintance did not have an "X" in his name and that he was selling jewelry. Finally, the prosecutor asked the witness if appellant were a "brother". The lower court once again overruled defense counsel's objection and the witness gave an affirmative reply. The prosecutor asked if the Muslim religion prohibited appellant's presence in the bar unless he was doing business. Over objection, the witness stated that this was correct. The witness also said that he did not know if appellant had been doing business in the bar.

After the prosecutor concluded his cross-examination, defense counsel moved for a mistrial because of the prejudicial and improper questioning of the witness as to his religious beliefs and associations. The lower court denied this motion for a mistrial because it believed that the prosecution was properly testing the credibility of the witnesses.

[ 247 Pa. Super. Page ]

The defense then called another witness who testified that he saw appellant in the Page Three Bar at 7:30 p. m., on December 23, 1974. On cross-examination, the prosecutor asked the witness if he belonged to a Muslim sect and if his faith prohibited his presence in a bar. Defense counsel objected to both questions; the lower court overruled his objections and the witness gave affirmative answers. The prosecutor then asked three times if the presence of the witness in the bar meant that he was willing to bend his religious principles. After the witness answered the first question affirmatively, the lower court sustained objections to the second and third questions.

Subsequently, the prosecutor returned to the subject of the Muslim faith of the witness. He asked the witness if he had seen a couple of "brothers" enter the bar. The witness said yes. The prosecutor then asked if the witness got into trouble because these two other "brothers" visited the bar; the witness said no. Finally, the prosecutor asked: "I take it this isn't one of the strongest principles of your religion?" The lower court sustained defense counsel's objection.

The Act of April 23, 1909, P.L. 140, § 3, 28 P.S. § 313 provides: "No witness shall be questioned, in any judicial

[ 247 Pa. Super. Page 410]

    proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting either his competency or credibility." Our Supreme Court has held that this statutory directive does not bar evidence of a religious affiliation when such evidence is directly relevant to the substantive issues of a case and only incidentally impacts upon the credibility of a witness. For example, in McKim v. Philadelphia Transportation Co., 364 Pa. 237, 72 A.2d 122 (1950), the Supreme Court allowed a plaintiff who had alleged impairment of his earning power because of defendant's tortious activity to be cross-examined as to his duties as a Jehovah Witnesses' minister. In the instant case, however, the lower court allowed the prosecution to question the two witnesses as to their religious beliefs because they might have been biased towards appellant as a "brother" Muslim and because the Muslim religion frowns on the presence of its adherents in bars. In short, the lower court sanctioned questions designed to directly impugn the credibility of appellant's two alibi witnesses. Because of the express mandate of 28 P.S. § 313, we cannot accept the lower court's rationale for allowing the prosecution to cross-examine appellant's alibi witnesses on the subject of their religious beliefs and affiliation.*fn7

[ 247 Pa. Super. Page 411]

The Commonwealth relies on Commonwealth v. Mimms, 232 Pa. Super. 486, 335 A.2d 516 (1975). In Mimms, a majority of our Court held that a trial court did not commit fundamental error when it allowed the prosecution to ask a witness if he and the defendant were both Muslims. However, in Mimms, the prosecutor only asked two questions concerning the religious beliefs of the witness.*fn8 In contrast to Mimms, the prosecution in the instant case engaged in prolonged and sometimes emotionally charged questioning of the two witnesses as to their Muslim beliefs. At one point, the prosecutor asked: ". . . I believe in your religion, one of the basic tenets is that the law of the city and county does not apply to the brothers; is that correct?" Although the lower court sustained an objection to this question, the query indicates a prosecutorial design to inflame the jury against the witnesses and appellant, as a fellow Muslim, because of their religious beliefs. Moreover, the prosecutor made no attempt to confine his inquiry into the religious beliefs of the witnesses. Instead of directly asking if the witnesses were Muslims and if that faith proscribed their presence in a bar, the prosecutor delved extensively into some of the distinctive traits of the Muslim religion. For example, he asked why the witnesses chose to affirm rather than swear an oath, why they referred to other members of the sect as "brothers," and why Muslims had an "X" in their middle names. Because the Commonwealth persistently and improperly emphasized the association of appellant and his two alibi witnesses with the Muslim

[ 247 Pa. Super. Page 412]

    religion, we must vacate the judgment of sentence and grant appellant a new trial.*fn9

Judgment of sentence vacated and a new trial granted.

PRICE, Judge, dissenting:

I would affirm the judgment of sentence, not because I disagree with the majority's treatment of the merits of appellant's claim of error in the cross-examination of two defense witnesses as to their religious beliefs, but because I believe Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975), controls, and that appellant has waived the argument he now advances. Nothing could be clearer than the announcement in Mitchell that it is a fundamental principle of appellate review that we may not reverse a judgment or decree on a theory that was not presented to the trial court. It is also clear that appellant's theory now advanced was not presented to the lower court, nor does the lower court's citation of Commonwealth v. Mimms, 232 Pa. Super. 486, 335 A.2d 516 (1975), cure this defect. Our majority decision in Mimms does not rely upon nor cite 28 P.S. § 311. Furthermore, assuming the lower court's awareness of the statute does not cure the requirement that the specific theory must be presented to the lower court. We assume, in the nature of judicial knowledge and notice, that the lower court knows all the statutes and law of Pennsylvania and such a procedure would render the whole doctrine of waiver a nullity. This we can not do.

I must also note that I believe our decision in Mimms was, and is, correct. I therefore join the majority in distinguishing the case today, but do not join Judge HOFFMAN'S reaffirmation of belief as expressed in the majority opinion. (247 Pa. Super. at 411 note 8, 372 A.2d at 892, note 8)

[ 247 Pa. Super. Page 413]

I find no merit to appellant's remaining assignments of error.

I would affirm the judgment of sentence.


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