No. 33 Appeal Docket 1983, Discretionary Appeal from the April 16, 1982 Order of the Superior Court at October Term, 1979, No. 2548, Reversing the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of August Session, 1978, Nos. 1096, 1099 and 1100, and Ordering a New Trial, 298 Pa. Super 189,
Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the decision or consideration of this case. McDermott and Hutchinson, JJ., filed dissenting opinions.
On February 2, 1979, the appellee, Danny Glasco, was convicted by a jury of simple assault, indecent assault and involuntary deviate sexual intercourse.*fn1 In his defense the appellee had called his brother, Lee Glasco, to testify as a character witness. During cross examination, the court, over objection of defense counsel, permitted the prosecutor to question the witness concerning prior arrests of appellee.*fn2 The appellee appealed from judgment of sentence
arguing that the trial court erred in allowing questions about unrelated arrests to be put to his character witness.
The Superior Court, relying on our holding in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), awarded the appellee a new trial.*fn3 In Scott, decided on November 5, 1981, this Court unanimously rejected the rule that allowed the prosecution to cross-examine character witnesses as to mere arrests of the accused. We granted the Commonwealth's petition for allowance of appeal. The Commonwealth argues that the rule change announced in Scott should not be retroactively applied to appellee's trial which took place almost three years previous to the Scott decision.
Based upon and for the reasons set forth in our opinion and decision in Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983),*fn4 the order of the Superior Court granting appellee a new trial is affirmed.
McDERMOTT, Justice, dissenting.
I dissent for the reasons set forth in my dissenting opinion in Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).
HUTCHINSON, Justice, dissenting.
I dissent for the reasons set forth in my dissenting opinion and Mr. Justice McDermott's dissenting opinion in Commonwealth v. ...