decided: June 3, 1977.
COMMONWEALTH OF PENNSYLVANIA
JOHN ERIC DARBY, APPELLANT
Lewis L. Maltby, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn Temin, Philadelphia, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones, did not participate in the decision of this case.
[ 473 Pa. Page 110]
OPINION OF THE COURT
John Eric Darby was convicted by a jury of murder of the second degree and a related weapons offense. Post-verdict motions were denied and concurrent judgments of sentence of not less than five nor more than fifteen
[ 473 Pa. Page 111]
and not less than one and one-half nor more than three years imprisonment were imposed. This appeal from the judgment of sentence imposed on the murder conviction followed.*fn1
Darby advances numerous reasons why a new trial should be granted. Since we reverse because the trial court improperly limited the presentation of evidence by the defense, we need not discuss Darby's remaining complaints.*fn2
The relevant facts are these:
The defense opened its case-in-chief by calling Darby, whose testimony put in issue whether the killing of Gregory Miles by Darby was a justifiable act of self-defense. Thereafter, defense counsel sought to support the claim of self-defense by calling numerous witnesses who testified that Miles had a reputation for violence and aggression. Defense counsel also supported the claim of self-defense by asking Darby, if at the time of the killing, he was aware that Miles had been convicted of certain criminal charges; Darby indicated he was aware of three such convictions. But when counsel asked Darby if he was aware of instances (prior to the killing) in which Miles had been arrested for being an accessory after the fact to murder and for assault with intent to kill, the court sustained objections by the Commonwealth to the questions.*fn3
[ 473 Pa. Page 112]
At the close of the defense case-in-chief, counsel sought to read into the record Miles' record of criminal convictions and his record of arrests from which no convictions had resulted.*fn4 The court allowed the former to be read to the jury but disallowed the latter.
Darby argues these rulings by the court were erroneous and sufficiently prejudicial to require a new trial. We agree.
In Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), we held that prior convictions involving aggression by a victim of a homicide may be introduced into evidence by an accused where self-defense is asserted either "(1) to corroborate the [accused's] alleged knowledge of the victim's quarrelsome and violent character to show that the [accused] reasonably believed that his life was in danger; or (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor." [Footnote omitted.] Commonwealth v. Amos, supra at 303, 284 A.2d at 750.
As the Commonwealth points out and as Mr. Justice Nix stated in Commonwealth v. Katchmer, 453 Pa. 461, 465, 309 A.2d 591, 593 (1973): ". . . there is a vast difference between a conviction and a mere accusation [or arrest]." But the "vast difference" must be viewed in connection with the purpose for which the evidence of an arrest is offered. In Commonwealth v. Katchmer, supra at 465, 309 A.2d at 593, we rejected the position that the Commonwealth could introduce arrests of a witness to impeach his credibility because ". . . the reception of such evidence would merely constitute the reception of somebody's hearsay assertion of the witness' guilt."
[ 473 Pa. Page 113]
The same reasoning would apply in the instant case had the arrest record of Miles been offered merely "to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor." But the arrest record and testimony of Darby regarding his knowledge of such arrests were also offered "to corroborate [Darby's] alleged knowledge of [Miles'] quarrelsome and violent character to show that [Darby] reasonably believed that his life was in danger." In this context whether Miles was guilty or innocent of the charges for which he was arrested is immaterial because it is the fact of the arrests having been made and Darby's knowledge of them which would have caused Darby to formulate a belief that he was in danger when confronting Miles. Thus, Darby should have been allowed to testify that he knew Miles had been arrested previously for violent crimes and the arrest record should have been admitted to corroborate his testimony that he believed his life was in danger at the time involved.
Finally, we would add that we are not unmindful of authorities which have held contrary to today's ruling, see e.g., Johnson v. Commonwealth, Ky., 477 S.W.2d 159 (1972); Commonwealth v. Tyree, Ky., 365 S.W.2d 472 (1963); People v. Keys, 62 Cal.App.2d 895, 145 P.2d 589 (1944); 40 Am.Jur.2d, Homicide § 306 (1968); 40 C.J.S. Homicide § 272f (1944);*fn5 but we believe our holding today is compelled by both logic and fairness. Cf. State v. Shahane, 56 N.D. 642, 219 N.W. 132 (1928); 1 Wigmore, Evidence § 198 (3d ed. 1970); McCormick, Evidence §§ 186-188, 193(f) (2d ed. 1972).
Accordingly, the judgment of sentence is reversed and a new trial is granted.