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COMMONWEALTH PENNSYLVANIA v. VICKI M. SCHMIDT (07/29/83)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
VICKI M. SCHMIDT, APPELLANT

No. 660 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division -- Trial Section, Montgomery County, No. 35-80.35.15 & 35.18 of 80, 2 Counts

COUNSEL

Norris E. Gelman, Philadelphia, for appellant.

Ronald T. Williamson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, McEwen and Lipez, JJ. McEwen, J., concurs in the result.

Author: Lipez

[ 317 Pa. Super. Page 242]

In a jury trial, defendant was convicted of two counts of murder in the third degree. This appeal is from the judgment of sentence imposed after denial of defendant's post-verdict motions. Because we agree with defendant that the court below erred in permitting the prosecutor to elicit defendant's prior criminal record from the defendant herself on cross-examination, we reverse and grant a new trial.*fn1

[ 317 Pa. Super. Page 243]

In cross-examining the defendant, the prosecutor elicited the fact that she had pled guilty to retail theft in 1976. The trial judge permitted this line of questioning over defense counsel's strenuous and repeated objections. The Commonwealth concedes, as it must, that this questioning of defendant concerning a prior guilty plea violated the Act of March 15, 1911, P.L. 20, 19 P.S. § 711,*fn2 repealed and Page 243} substantially reenacted as 42 Pa.C.S. § 5918,*fn3 effective June 27, 1978. The Commonwealth relies solely on an argument that the error was harmless beyond a reasonable doubt. We must reject this argument, since our Supreme Court has unanimously held that a violation of 19 P.S. § 711 cannot be harmless "even if the evidence of guilt is 'overwhelming.'" Commonwealth v. Barron, 438 Pa. 259, 261, 264 A.2d 710, 712 (1970).

Judgment of sentence reversed, and a new trial ordered.


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