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COMMONWEALTH PENNSYLVANIA v. JULES SETH LEVENE (07/03/80)

decided: July 3, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JULES SETH LEVENE, APPELLANT



No. 326 January Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Montgomery County, at No. 2937-77

COUNSEL

Charles J. Weiss, Ambler, for appellant.

Ronald T. Williamson, Asst. Dist. Atty., David McGlaughlin, Norristown, for appellee.

O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, C. J., did not participate in the consideration or decision of this case.

Author: O'brien

[ 492 Pa. Page 288]

OPINION OF THE COURT

Appellant, Jules Seth Levene, was, on November 23, 1977, convicted by a jury of voluntary manslaughter and various lesser offenses for having beaten his wife, Joan Levene, to death. Post-verdict motions were filed, argued and denied. On July 7, 1978, appellant was sentenced to a term of imprisonment of not less than two and one-half nor more than seven years. Hence this appeal.

[ 492 Pa. Page 289]

Urged upon us now are, essentially, twenty-seven separate assignments of error. Because we find one of appellant's claims to be meritorious, it is unnecessary to address or dispose of the remainder.*fn1

Appellant, by his counsel, filed a pretrial application to suppress prior criminal record. The prosecution admitted by way of answer that appellant had no prior record of convictions for crimen falsi. The court and prosecutor, accordingly, agreed that any prior criminal record of appellant would be inadmissible for impeachment purposes. Nevertheless, after appellant testified at trial, the prosecutor cross-examined appellant concerning four prior arrests for alcohol-related conduct. Appellant was cross-examined concerning an arrest and imposition of probation for public drunkenness in Los Angeles, California, in 1943. Appellant was cross-examined concerning an arrest for drunkenness in California in 1947. Appellant was cross-examined concerning an arrest for drunkenness in California in 1956. And finally, appellant was cross-examined concerning a 1961 arrest in Tampa, Florida, for drunkenness. Appellant argues such cross-examination, permitted over objection, was error in that: first, it constituted prosecutorial overreaching in that the district attorney had agreed there was no prior criminal record admissible for impeachment purposes; second, such prior criminal conduct, not being crimen falsi, was improper impeachment evidence; third, prior arrests not leading to convictions may not be used for impeachment purposes; and fourth, that the examples of prior criminality were so remote as to be inadmissible to impeach credibility.

[ 492 Pa. Page 290]

The Commonwealth argues appellant's prior criminal conduct was the subject of proper cross-examination because appellant had testified that he had stopped imbibing alcohol in 1965, and that he had had no ...


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