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decided: December 29, 1983.


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.

Author: Larsen

[ 503 Pa. Page 230]


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

[ 503 Pa. Page 231]

Evidence, ยง 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 on appeal at the time of the Scott decision.

In the present case, the appellee's only defense was his good character. He called four witnesses who offered testimony to that effect. During the cross-examination of two of the character witnesses, the prosecutor asked whether the witness ever heard that the appellee was arrested twice previous to the arrest for which he was then on trial. This line of inquiry was sanctioned by prior case law*fn4 and the trial judge overruled appellee's objections. In his post trial motions and in his appeal to the Superior Court the appellee preserved and argued the issue of unfair and improper cross-examination of his character witnesses.

The appellant Commonwealth argues that appellee's trial was fairly conducted in accordance with the law then pertaining. Further, it is urged that the evidentiary rule established in Scott is not of constitutional dimensions and

[ 503 Pa. Page 232]

    should not be applied to appellee's trial which occurred two years before the Scott decision.

In August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981) we considered the question of retroactive application of an overruling decision in the environment of a civil case.*fn5 The question in August was whether an insurance policy provision would be enforced in accordance with the approach which prevailed at the time of trial, or under a rule change announced while the appeal in August was pending. We said there that since no distinction could be drawn between the appellant in August and the injured litigant in the overruling case, the same relief should be available. Considering the similarity of the facts in August to those of the overruling case, we noted that August may well have been the case which set aside prior law if the overruling case had not been decided while August was pending on appeal.

"[O]ur rule in civil cases which applies the law in effect at the time of appellate decision applies with equal force to criminal proceedings."

Commonwealth v. Brown, 494 Pa. 380, 384, 431 A.2d 905, 907 (1981).

"Evenhanded decision making requires that similar situated individuals on direct appeal be treated the same."

Commonwealth v. Brown, 494 Pa. at 385, 431 A.2d at 908.

In the present case, as in Scott, the lower court ruled that character witnesses could be cross-examined as to previous arrests of the accused which did not result in convictions. In both cases, a defense challenge to the ruling was raised during trial and the issue preserved and argued in post trial motions and on appeal. The only noteworthy difference between Scott and the appellee is that Scott was argued

[ 503 Pa. Page 233]

    and decided first. The instant case may well have been the case which overruled prior law if Scott had not been decided while appellee's appeal to the Superior Court was pending. The question of whether to apply an enlightened rule in favor of a discredited one should not be determined by the fortuity of who first has his case decided by an appellate court.

Therefore, we hold that where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal. Accordingly, the principle established in Scott is applicable here and appellee is entitled to a new trial.

The order of the Superior Court is affirmed.

NIX, Justice, dissenting.

I dissent. The majority today, in the name of "evenhanded decision making," Commonwealth v. Cabeza, 300 Pa. Super. 483, 487, 446 A.2d 958, 960 (1982), has fashioned a "sweeping rule of retroactive application," see August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981), which cannot be justified under the principles of jurisprudence which should properly guide the decision whether to give retrospective effect to a new rule announced by this Court. "Retroactive application is a matter of judicial discretion which must be exercised on a case by case basis." August v. Stasak, supra, 492 Pa. at 554, 424 A.2d at 1330, citing Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

The "even handed justice" argument myopically considers only the interest of the disappointed litigant and ignores our responsibility to provide a fair system of justice for all of the citizens of this Commonwealth. The litigant's

[ 503 Pa. Page 234]

    interest in securing the benefit of the change must be considered in conjunction with the purposes intended to be accomplished by the change and the impact of a retrospective application upon the system. Such a balancing approach is essential in ensuring true fairness not only to the litigant, but also to society as a whole.

Commonwealth v. Geschwendt, 500 Pa. 120, 134, 454 A.2d 991, 999 (1982) (plurality opinion).

See also Commonwealth v. Brown, 494 Pa. 380, 387, 431 A.2d 905, 909 (1981) (Larsen, J., dissenting). It cannot be overemphasized that both the federal and our state constitutions are silent on the question of retroactivity. See Commonwealth v. Geschwendt, supra.

I disagree with the majority's conclusion that Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), must be applied retroactively to the instant matter for two reasons. First, the change embodied in Scott was not constitutionally compelled. "The argument of the necessity of decision-making consistency in the application of constitutionally compelled decisions loses its force when removed from the constitutional setting." Commonwealth v. Geschwendt, supra, 500 Pa. at 130, 454 A.2d at 996. Thus it would have been appropriate in the instant case for this Court to weigh appellant's interest in reaping the benefit of the new rule against the purposes sought to be accomplished therein and the impact of retroactive application upon our system of criminal justice. Here, as in Commonwealth v. Geschwendt, supra, "we are concerned with merely a change in state practice," Id. 500 Pa. at 130, 454 A.2d at 996. The change in Scott represents a refinement of that practice rather than a correction of a "serious flaw in the fact-finding process." Id., 500 Pa. at 132, 454 A.2d at 997. Scott announced a better rule of evidence to be applied in criminal trials. The salutary purposes of this new rule cannot be significantly advanced by its retrospective application. Moreover, the application of Scott to trials already conducted would have a deleterious effect upon the administration

[ 503 Pa. Page 235]

    of criminal justice. Thus there is no justification for the majority's decision to apply Scott retroactively.

My second ground for disagreement with the majority is the fact that the Scott decision represents a "clear break with the past." See United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (where new constitutional rule was unanticipated, a finding of non-retroactivity is indicated). Scott explicitly overruled our prior case law, under which the prosecution was permitted to question a character witness as to prior arrests of the defendant not resulting in conviction. See Commonwealth v. Little, 449 Pa. 28, 295 A.2d 287 (1972); Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971); Commonwealth v. Jenkins, 413 Pa. 606, 198 A.2d 497 (1964). Moreover, in Scott we noted that a vast majority of jurisdictions, following Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), allow such an inquiry. Thus even if the Scott rule had been constitutionally compelled, its nonretroactive application would be clearly indicated. See United States v. Johnson, supra; Commonwealth v. Geschwendt, supra.

Accordingly, I would reverse the Order of the Superior Court and reinstate appellant's judgment of sentence.

McDERMOTT, Justice, dissenting.

Character evidence is substantive evidence. It is both relevant and important. It should be presented by and from a source knowledgeable as to its truth. While it is certainly true that an arrest in and of itself proves nothing, it is also true that a series of arrests, (not uncommon in this day) may be pause to consider the full knowledge the witness has of another's reputation. One arrested for a laundry list of offenses in the community in which he lives may indeed be innocent of all, yet the knowledge of such arrests should at least be considered in establishing the accuracy of the proferred reputation evidence. One who

[ 503 Pa. Page 236]

    comes to laud the estimious reputation of another should at least be aware of all that makes a name.

Because I believe that this Court erred in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), I must dissent from the retroactive application of that decision.

I join with Mr. Justice Nix in his analysis of retroactivity.

HUTCHINSON, Justice, dissenting.

For the reasons set forth therein, I join that portion of Mr. Justice McDermott's Dissenting Opinion which would hold Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981) was wrongly decided. However, accepting Scott as the law of this Commonwealth, as I must since the majority has chosen not to overrule it, I agree with the conclusion that retroactive application is appropriate here.

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