No. 1265 Philadelphia 1980, No. 1613 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, at Nos. 764 and 768 May Term, 1979.
Vincent T. Snyder, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Rowley, Popovich and Cercone, JJ.
[ 328 Pa. Super. Page 217]
This is an appeal from the judgments of sentence entered by the Court of Common Pleas of Philadelphia County for Criminal Conspiracy (5 years probation) and Robbery (8 to 20 years imprisonment). The sentences on other convictions, which will be discussed infra, were suspended. We affirm.
At a bench trial before Judge (now Pennsylvania Supreme Court Justice) James T. McDermott, appellant, Mark Brown, was found guilty of various charges arising out of the shotgun robbery of a tavern owner in Philadelphia.
Appellant's trial counsel filed post-verdict motions and a brief which questioned the court's refusal to grant a mistrial when the prosecutor cross-examined appellant's mother in connection with appellant's arrest for an offense that occurred subsequent to the charges for which he was being tried. The prosecutor's intention was to impeach the mother's
[ 328 Pa. Super. Page 218]
testimony as to the good reputation her son had in the community for being a peaceful and law-abiding citizen.
The trial judge denied appellant's post-verdict motions, and, after the preparation of a pre-sentence report, imposed sentence.
After an appeal to this Court on May 17, 1980, we issued a per curiam order on February 4, 1981 granting a limited remand to conduct an evidentiary hearing on appellant's ineffectiveness claims.
An evidentiary hearing was held on May 23, 1982, after which appellant's motion for a new trial, based on his claim of ineffectiveness of counsel, was denied by Opinion of Judge Mirarchi filed on June 7, 1983. Thereafter, an appeal was taken to this court by (private) counsel unassociated with prior counsel who represented the appellant.
Counsel for the appellant raises three issues for our review. The first concerns a claimed entitlement to a new trial because the prosecutor cross-examined appellant's mother about her knowledge of his arrest for offenses that had not yet led to convictions.
At the time of appellant's September 12, 1979 trial, it was permissible to impeach the credibility of a character witness in the manner that occurred instantly. See Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971); Commonwealth v. Jenkins, 413 Pa. 606, 198 A.2d 497 (1964); Commonwealth v. Becker, 326 Pa. 105, 191 A. 351 (1937). Counsel for the appellant concedes as much in his brief, but attempts to profit from a reversal of this practice by our Supreme Court in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). The Commonwealth, on the other hand, urges us not to apply Scott retroactively. We need not decide this issue, for during the pendency of the instant appeal our Supreme Court granted retroactivity to Scott in Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) (NIX, McDERMOTT and HUTCHINSON, JJ., dissenting).
Notwithstanding the holding in Cabeza, the issue at hand is not so easily disposed of by merely applying the proscription
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of Scott to the prosecution's cross-examination of appellant's character witness on the question of his arrests. The reason is that the fact-finder in the case at bar was a judge and not a jury. In such a situation, the Courts of this jurisdiction have treated the matter in a fashion consistent with the following scenario:
In any event, appellant's allegation of prejudice [-- i.e., the trial court's purported commission of error in admitting into evidence his prior conviction --] is totally unsupported by the record. Appellant was tried and convicted by a judge sitting alone as factfinder, who expressly stated that he disregard [sic] appellant's prior criminal record. The evidence now objected to thus was not a factor in determining appellant's guilt.*fn6
Commonwealth v. Davis, 491 Pa. 363, 372 & n. 6, 421 A.2d 179, 183 & n. 6 (1980).
Instantly, the trier of fact made an express statement at the post-verdict motions hearing negating any effect the evidence of appellant's arrests may have had on the verdict; viz. :
THE COURT: As I understand the law, the basis of the knowledge of a character witness may be inquired into, and further, the ...