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COMMONWEALTH PENNSYLVANIA v. DAVICO L. CABEZA (06/11/82)

filed: June 11, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVICO L. CABEZA, APPELLANT



No. 2886 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Nos. 1643-47, March Term, 1979.

COUNSEL

Norris E. Gelman, Philadelphia, for appellant.

Garold Tennis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Beck and Hoffman, JJ.

Author: Hoffman

[ 300 Pa. Super. Page 484]

Appellant contends that two of his character witnesses could not be impeached through the use of his prior arrests not resulting in convictions. We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.

On February 25, 1979, appellant and his mother entered a tavern in West Philadelphia. Some time later, the mother took a gun from her purse and threatened to shoot a female patron. The mother pointed the gun and pulled the trigger, but the gun misfired. As the patron fainted and fell to the floor, the mother fired again, fatally wounding a barmaid who had been standing behind the intended victim. Appellant stood by the doorway throughout the encounter. At trial, one Commonwealth witness testified that appellant had importuned his mother to shoot the patron, while the remaining witnesses testified that appellant had said nothing. Appellant's defense rested exclusively upon the testimony of four character witnesses. The Commonwealth cross-examined two of them concerning appellant's two prior arrests that did not result in convictions. The jury found

[ 300 Pa. Super. Page 485]

    appellant guilty of murder in the first degree.*fn1 Following the denial of post-trial motions, the lower court imposed the mandatory life sentence. Appellant was appointed new counsel and this appeal followed.

"It is a well established general rule that evidence of a criminal defendant's prior arrests is inadmissible as tending to prove his disposition to commit crimes generally, or his commission of the specific crime for which he is then standing trial." Commonwealth v. Little, 449 Pa. 28, 30, 295 A.2d 287, 289 (1972). Nonetheless, the rule had been that if a defendant introduced evidence of his own good character, the Commonwealth would be permitted to ask the character witness whether or not they had heard persons in the neighborhood attribute particular offenses to the defendant. Id., 449 Pa. at 31, 295 A.2d at 289; Commonwealth v. Jenkins, 413 Pa. 606, 607-08, 198 A.2d 497, 498 (1964). However, because "an arrest is equally consistent with either guilt or innocence," our Supreme Court in Commonwealth v. Scott, 496 Pa. 188, 197, 436 A.2d 607, 612 (1981), unanimously "abrogated th[at] rule . . . even where [the prior arrests] pertained to the character trait vouched for on direct examination," Commonwealth v. Fawcett, 297 Pa. Superior Ct. 379, 385, 443 A.2d 1172, 1175 (1982). In Scott, Chief Justice O'BRIEN observed:

Despite any cautionary instructions that the court may have given the jury, the undue prejudice to [the defendant] is obvious. On the one hand, the jury would have heard that [the defendant] had a reputation for being peaceful while on the other hand, the jury would also have heard that [the defendant] had been arrested on [other] charges.

496 Pa. at 197, 436 A.2d at 611-12. Thus, under Scott, to preserve a fair trial, the Commonwealth is not permitted to cross-examine defense character witnesses concerning a defendant's ...


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