No. 32 E.D. Appeal Docket 1983, Appeal From The June 11, 1982, Order of The Superior Court at Philadelphia, 1980 No. 2886, Reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division Criminal Section, as of March Session, 1979, No. 1643, and Ordering A New Trial, CITE: 300 Pa. Supr. 483, A.2d (1982).
Eric B. Henson, Deputy Dist. Atty., Garold E. Tennis, Philadelphia, for appellant.
Norris E. Gelman, Philadelphia, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, McDermott and Hutchinson, JJ., filed dissenting opinions.
On November 3, 1979, the appellee, Davico L. Cabeza, was convicted by a jury of first degree murder in the shooting death of Mrs. Helen Cook in a West Philadelphia Lounge. Following the denial of post trial motions, the court sentenced appellee to life imprisonment. Upon appeal from the judgment of sentence, a three judge panel of the Superior Court reversed and remanded for a new trial.*fn1 The court decided that a new trial was required because during cross-examination of appellee's character witnesses, the prosecutor, over defense counsel's objections, was permitted to pursue questions concerning two prior arrests of the appellee. Neither of the arrests about which the witnesses were interrogated had resulted in a conviction.*fn2
In reversing the judgment of sentence, the Superior Court relied on our holding in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), decided on November 5, 1981.*fn3 In Scott we rejected the rule that allowed a prosecutor to cross-examine character witnesses as to mere arrests of the accused. Speaking for a unanimous court, then Chief Justice O'Brien stated:
Under this rule which we abrogate, the cross-examination must have pertained to arrests which relate to the character trait vouched for on direct. McCormick on
Evidence, § 191, n. 14 (2d Ed.1972). Thus, the Commonwealth would have been permitted to ask appellant's character witness if they had heard that appellant had been arrested for assaulting his wife and on a weapons charge. Despite any cautionary instruction the court may have given the jury, the undue prejudice to appellant is obvious. On one hand, the jury would have heard that appellant had a reputation for being peaceful while on the other hand, the jury would also have heard that appellant had been arrested on two charges. Had appellant been convicted of the charges, it would be easier to say that he must suffer the consequences of placing his character at issue. But instantly, the arrests which would have been alluded to never resulted in convictions. Since an arrest is equally consistent with either guilt or innocence, the cases allowing such cross-examination are overruled.
Commonwealth v. Scott, 496 Pa. at 196, 197, 436 A.2d at 611, 612.
The sole issue in this appeal is whether the rule announced in Commonwealth v. Scott, supra, should be applied retroactively to appellee's case which was pending ...