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COMMONWEALTH PENNSYLVANIA v. ROBERT PERCELL (12/31/82)

decided: December 31, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROBERT PERCELL, APPELLANT



No. 80-3-424, Appeal from the Order of the Superior Court dated December 21, 1979, at Nos. 319 & 320 Special Transfer Docket, affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia at Nos. 804 & 805 November Term, 1975, O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. McDermott, J., files a dissenting opinion.

Author: Flaherty

[ 499 Pa. Page 590]

OPINION OF THE COURT

Robert Percell appeals from the order of the Superior Court, Special Transfer Docket,*fn1 affirming his convictions, after a jury trial, of voluntary manslaughter and possession of an instrument of crime. The charges arose from the January 22, 1975 shooting death of Isaac Bordley.*fn2 Appellant contends that prosecutorial misconduct in the form of repeated and continuous disregarding of the court's rulings

[ 499 Pa. Page 591]

    denied him a fair trial. We agree and, thus, reverse and grant a new trial.

I.

The assistant district attorney scorned the trial court's ruling of inadmissibility of prior criminal charges not resulting in conviction on cross examination of a key defense witness. Russell Kolins, a court-appointed investigator, testified that he was a licensed private detective and that, in order to obtain his license, he was subjected to an investigation by the district attorney's office as to his character, integrity and standing in the community. He was called by the defense to testify that, inter alia, one prosecution witness who was an off-duty policeman refused to sign a statement identifying appellant as the assailant, and that the district attorney's office pressured another witness to implicate appellant and this witness gave a false statement to the police and lied about his identity.

Prior to this trial, Mr. Kolins had been charged with witness tampering in connection with another trial; this charge did not result in a conviction. Early in the trial, the court ruled evidence of this charge was inadmissible. Despite this ruling, the district attorney subsequently announced her intention to use evidence of this charge to impeach Kolins' credibility, whereupon the court correctly reiterated the inadmissibility of such evidence, Commonwealth v. Ross, 434 Pa. 167, 170, 252 A.2d 661, 662 (1969). Despite the court's ruling, the prosecutor asked five questions regarding this charge. Although repeated objections were sustained and limiting instructions given, the unavoidable effect of such conduct was to raise in the minds of the jurors the inference that the defense was harboring an unreliable witness -- a witness who would suppress the truth and pervert the criminal justice system by tampering with witnesses. This Court has said, "Where counsel persists in intentionally seeking to inject incompetent evidence into the case such misconduct prevents a fair trial and warrants reversal." Commonwealth v. Ravenell, 448 Pa. 162, 171, 292

[ 499 Pa. Page 592]

A.2d 365, 370 (1970). Sustaining defense objections and giving limiting instructions were inadequate measures to cure the resulting prejudice to appellant, and the lower court's refusal to grant a mistrial was error.

II.

Appellant took the stand and, in the course of identifying himself, testified to certain "historical" facts regarding his residence in the neighborhood where the crime occurred, his family and his employment status. Arguing appellant had thus put his character in issue, the prosecutor announced her intention to impeach appellant's "reputation" evidence by prior convictions. These crimes were not crimen falsi and, thus, could not be admissible to impeach appellant's credibility. See Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). Because appellant's testimony did not describe his reputation in the community either generally or as it would relate to the crimes presently charged, the lower court ruled evidence of these prior crimes inadmissible. Nevertheless, the prosecutor persevered: "Anything happen to you in 1972 that would prevent you from now and evermore from having a license to carry a gun?" A timely objection was sustained.

Clearly, the prosecutor's question could only have been an improper reference to appellant's prior criminal conviction and to the concomitant statutory sanction of withdrawal of the privilege to register and carry a weapon under 18 Pa.C.S.A. § 6105 which provides: "No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control." Act of December 6, 1972, P.L. 1482, No. 334, § 1. There is no other reasonable inference to be drawn. A reference, either expressly or by reasonable implication, to prior criminal activity, which does not qualify as a recognized exception to the general rule excluding evidence of an accused's prior criminal convictions, see Commonwealth v. Roots, supra; Commonwealth v. Terrell, 234 Pa. Super. 325, 339 A.2d 112 (1975), is impermissible. See Commonwealth v. Penn, 497 Pa. 231, 439 A.2d 1154, 1160 (1982).

[ 499 Pa. Page 593]

Moreover, the prosecutor persisted, immediately resuming the same line of questioning:

[By the Assistant District Attorney]:

Did you ever apply for a license to carry a ...


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