decided: March 23, 1978.
COMMONWEALTH OF PENNSYLVANIA
HARRY MIMMS, APPELLANT
Stephen Robert LaCheen, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty., Robert B. Lawler, Chief Appeals Div., Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion in which Eagen, C. J., and Manderino, J., join.
[ 477 Pa. Page 555]
OPINION OF THE COURT
Appellant, Harry Mimms was convicted in the trial court of carrying a concealed deadly weapon*fn1 and unlawfully
[ 477 Pa. Page 556]
carrying a firearm without a license.*fn2 The Superior Court affirmed the conviction, Commonwealth v. Mimms, 232 Pa. Super. 486, 335 A.2d 516 (1975), and we granted allocatur.
Our original decision was to reverse the Superior Court and direct a new trial on the ground that appellant's revolver had been seized by the police in a manner which violated the Fourth Amendment to the Constitution of the United States. Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 (1977). The Supreme Court of the United States granted the Commonwealth's petition for certiorari, reversed our order and remanded the case to this Court for further proceedings.*fn3 Having reexamined the record and the assignments of error not heretofore addressed,*fn4 we determine that Mimms is entitled to a new trial on a ground other than the alleged search and seizure violation which formed the basis of our first decision.*fn5
[ 477 Pa. Page 557]
During the trial of appellant both Mimms and one Clayton Morrison, a passenger in Mimms' automobile at the time of the arrest of Mimms, testified that it was Morrison who had brought the illegally possessed firearm into the car.*fn6 Morrison also testified that at the time of the seizure the gun was not located on appellant's person but was concealed under the seat of the automobile. On cross-examination, the assistant district attorney asked Morrison the following questions and received the following answers:
"Q. Tell me, are you a good friend of Harry Mimms?
A. I am an acquaintance of him, I know him.
Q. You know him very well would you say?
A. Yes, sir.
Q. Are you both Muslims?
MR. ABRAMSEN: Objection, sir, I move for withdrawal of a juror.
THE COURT: Overruled.
BY MR. KLEIN:
Q. Are you both Muslims?
A. Yes, sir.
Q. In other words, when you say 'Muslims,' followers of the Islam faith is that right?
Q. Do you see Mr. Mimms often?
A. I see him frequently.
Q. How often?
A. Not that often I see him.
Q. How often?
A. Once or twice out of the day.
Q. Once or twice a day?
A. Yes, sir.
[ 477 Pa. Page 558]
Q. Would you consider yourself a good friend of Mr. Mimms?
A. We are acquaintances.
Q. Quite good friends?
A. Yes, sir, I know him.
Q. Do you know his family?
A. No, I don't.
MR. KLEIN: No further questions." (Emphasis added.)
Questions relating to one's religious beliefs are specifically forbidden by statute in this state. The Act of April 23, 1909, P.L. 140, § 3, 28 P.S. § 313 provides:
"No witness shall be questioned in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting either his competency or credibility."
Although affiliation rather than belief was the thrust of the cross-examination above quoted, the one blends into the other. While circumstances can be imagined in which religious affiliation would be of relevance, it is clear from the present record that the religious affiliations of appellant and Morrison were irrelevant to any issue at trial and that such inquiry had not in any way been evoked by the direct examination of Morrison. Compare McKim v. Philadelphia Transit Company, 364 Pa. 237, 72 A.2d 122 (1950). The Commonwealth contends that the questioning was merely intended to show the friendly relationship between Morrison and Mimms and was not intended to capitalize upon the notoriety of the Muslim faith which obtains locally.*fn7 The statute is, however, expressly worded to prevent the use of religious profession for the purpose of affecting credibility. If, as the Commonwealth argues, the questioning sought only to establish the friendship of the two men, there were
[ 477 Pa. Page 559]
numerous other ways, equally effective, to establish such a relationship without touching upon religion.
Appellant's defense depended altogether on the credibility of the assertions by him and Morrison concerning the circumstances under which the search took place. Accordingly, the impeachment tactics that were employed by the prosecution in violation of an express act of legislature cannot, in the context of the present case, be considered harmless.*fn8
Judgment of sentence reversed and a new trial ordered.
ROBERTS, Justice, concurring.
I agree with the majority that the Commonwealth committed reversible error, requiring grant of a new trial, when it questioned Clayton Morrison concerning his religious affiliations. I believe, however, that the preferable ground for resolution of this case is the search and seizure issue which prompted our original reversal. To the opinion we filed originally, I would add only, "Our discussion of the Fourth Amendment is equally applicable to the state constitutional provision." Commonwealth v. Platou, 455 Pa. 258, 260 n. 2, 312 A.2d 29, 31 n. 2 (1973), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974) (certiorari denied, "it appearing that judgment below rests upon an adequate state ground").
The search and seizure issue is preferable to that now addressed by the majority for several reasons. Most important,
[ 477 Pa. Page 560]
we deemed the result of Mimms a sound one when rendered. It is equally sound today. We held, quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that a contrary result "would invite intrusion upon constitutionally guaranteed rights based on nothing more substantial than inarticulable hunches." Commonwealth v. Mimms, 471 Pa. 546, 553, 370 A.2d 1157, 1160 (1977), rev'd. and remanded sub nom. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1978). This rule is for Pennsylvania no less sound today, even though the United States Supreme Court has declined to impose it upon all the states and the Federal government. If we have found a constitutional principle sound and salutary, we should not hesitate to endorse it as a matter of state law. See Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) (forbidding impeachment by means of unconstitutionally obtained statement); People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099 (1975). This view is particularly true where the principle advances important individual freedoms generally favored by both the state and federal constitutions. See generally, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). The wisdom of both our holding in Mimms and the approach I suggest here was recently recognized by the Supreme Court of Delaware, which adopted on both state and federal constitutional grounds a rule similar to that we announced in Mimms. State v. Prouse, Del., 382 A.2d 1359 (1978) (holding unconstitutional random auto stops where police had no reasonable suspicion of wrongdoing; following Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973)).
Disposition on state grounds also preserves a body of state law independent of decisions of the United States Supreme Court. See Commonwealth v. Platou, supra (certiorari denied because judgment rested on independent state ground). Where so many of our decisions concerning individual rights reflect considerations of local conditions, a decision founded on state grounds is appropriate.
[ 477 Pa. Page 561]
The majority avoids addressing the Pennsylvania Constitution by resort to the principle that a reviewing court should not consider issues "not properly placed before it by the litigants." 477 Pa. at 556, n. 5, 385 A.2d at 335 n. 5. In my view, this principle does not apply here. Both parties framed the issue in Mimms as one of search and seizure. We have often passed upon this issue under both the Fourth Amendment of the Constitution of the United States and the Pennsylvania Constitution. See Commonwealth v. Knowles, 459 Pa. 70, 73 n. 3, 327 A.2d 19, 20 n. 3 (1974); Commonwealth v. Eazer, 455 Pa. 320, 322 n. 2, 312 A.2d 398, 399 n. 2 (1973); Commonwealth v. Platou, supra. The language of the Fourth Amendment and our relevant state provision differ in no significant respects,*fn* the issue was well briefed, the Court carefully considered the facts and arguments presented, and it is highly unlikely that the parties could, if granted an opportunity, direct toward the state Constitution new arguments concerning search and seizure of which we are not now aware.
When the state constitution is so strongly implicated in a federal constitutional challenge, sound judicial practice requires that we regard the state constitutional question as properly presented. A contrary view would force us to decide issues upon federal constitutional grounds whenever the parties do not specifically address other grounds adequate to dispose of the appeal. Control of our scope of review should reside in this Court. Wyman v. James, 400 U.S. 309, 345
[ 477 Pa. Page 562]
& n. 7, 91 S.Ct. 381, 401 & n. 7, 27 L.Ed.2d 408 (1971) (dissenting opinion of Marshall, J., joined by Brennan, J.); see Ashwander v. TVA, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Thus, that the parties focused on the federal constitution does not necessarily extinguish our inherent power to measure the propriety of a Pennsylvania search and seizure according to the Pennsylvania Constitution.
I therefore believe the question whether the search and seizure violated the state constitution is properly before us. In my view, this Court should simply add to our original opinion a statement that our holding is based equally on the Pennsylvania Constitution. See Commonwealth v. Platou, supra.