Cecil B. Moore, Hugh C. Clark, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., filed a dissenting opinion in which Nix, J., joins.
Appellant Oscar Jackson was convicted by a jury of murder of the first degree, aggravated robbery and conspiracy, all charges stemming from the killing of Edward Perry. He has appealed only the murder conviction.*fn1 We reverse the
murder conviction because the Commonwealth improperly impeached appellant's chief witness by prior arrests which had not resulted in convictions. See, e.g., Commonwealth v. Taylor, 475 Pa. 564, 381 A.2d 418 (1977), and Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 662 (1969).
The principal evidence against appellant was the testimony of Arthur Hopkins. That witness related in great detail how he and decedent were accosted by appellant and three other men and taken to a house where decedent was shot and killed.
Louis Sparks testified for appellant that Hopkins had a poor reputation for veracity in the community. The Commonwealth was then allowed in the presence of the jury to dispute the competency of Sparks to testify to Hopkins' reputation. Sparks admitted that he had been convicted of assault and battery on a police officer and of being accessory after the fact to a murder. Over defense objection, Sparks also was questioned about and admitted several prior arrests which did not result in convictions. Sparks testified that he had been acquitted on one of the charges. Because he had previously testified that he had been convicted only twice in his life, the jury could deduce that none of the other arrests had resulted in a conviction. The questioning concerning these arrests was confused and the trial record does not disclose clearly how many arrests there were nor what charges were involved, though the jury was informed that one arrest was for assault and battery and another, which the witness said resulted in acquittal, was for bank robbery.
The veracity of a witness may not be impeached by prior arrests which have not led to convictions. Commonwealth v. Taylor, supra, 475 Pa. 564, 381 A.2d 418; Commonwealth v. Reese, 475 Pa. 120, 379 A.2d 1312 (1977); Commonwealth v. Katchmer, 453 Pa. 461, 464, 309 A.2d 591, 593 (1973); Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 662 (1969); Stout v. Rassel, 2 Yeates 334 (Pa.1798); 3A J. Wigmore, Evidence § 980a (Chadbourn Rev. 1970). The
Commonwealth suggests that this rule is inapposite because this cross-examination was directed to showing that Sparks could not have lived in Hopkins' community during the relevant time, because Sparks was then in jail. The trial transcript indicates, however, that for all but one of the arrests the prosecutor had reason to know that the witness had posted bond and had not been held in jail. Further, the prosecutor could have used less prejudicial means of showing whether the witness had been in the community during the ...