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COMMONWEALTH PENNSYLVANIA v. DARRELL TISDAL (03/02/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 2, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DARRELL TISDAL, APPELLANT

No. 2479 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1558-1563 October Term, 1978.

COUNSEL

Barnaby C. Wittels, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Cavanaugh and Watkins, JJ.

Author: Cavanaugh

[ 325 Pa. Super. Page 161]

The crimes involved in this case occurred on June 20, 1978. The appellant was tried without a jury and found guilty of attempted rape, burglary and possession of an instrument of a crime. Post-trial motions were denied and judgment of sentence was entered. The appellant appealed to this Court.*fn1

Appellant contends that the court below erred in denying his motion to prohibit the prosecution from cross-examining his proposed character witnesses as to another arrest of the appellant on October 6, 1977, on charges of loitering and

[ 325 Pa. Super. Page 162]

    prowling. The charges were subsequently withdrawn. We agree that this was error which resulted in such prejudice to the appellant that a new trial must be granted.*fn2 In Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), decided while the appeal in this case was pending, our Supreme Court rejected the prior rule that allowed a prosecutor to cross-examine witnesses as to mere arrests of the accused. In Commonwealth v. Cabeza, 300 Pa. Super. 483, 446 A.2d 958 (1982) this Court held that the rule in Commonwealth v. Scott that prohibits the Commonwealth from cross-examining defense character witnesses concerning a defendant's prior arrests not resulting in convictions was to be applied retroactively to cases on appeal at the time of the Scott decision. In Cabeza the alleged offense occurred on February 25, 1979 and the case was on appeal when the Scott decision was rendered. The court in Cabeza ordered a new trial.*fn3

The Supreme Court decided in Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) that the rule announced in Commonwealth v. Scott, supra shall be applied retroactively to cases pending on appeal at the time of the Scott decision. The Supreme Court stated at 503 Pa. page 233, 469 A.2d page 148:

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.

Opinion by Larsen, J., Dissenting Opinions by Justices Nix, (now Chief Justice) McDermott and Hutchinson.

[ 325 Pa. Super. Page 163]

The decision by the Supreme Court in Commonwealth v. Cabeza, supra, applying the rule of Commonwealth v. Scott retroactively to cases pending on appeal when Scott was decided is controlling.

Judgment of sentence reversed and case remanded for new trial.


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