Commonwealth v. Davis , 396 Pa. 158 ( 1959 )

Opinion by

Mr. Justice Benjamin R. Jones,

We are herein presented with an appeal from a judgment of sentence upon defendant of the death penalty after his conviction of murder in the first degree.

On January 30, 1957 between 10:00 and 10:15 p.m. the victim, Emily Foster, left a bingo game in Vandergrift, Pa., to return to her home in Leechburg, Pa.— a distance of approximately five miles — and arrived there approximately fifteen minutes later. The defendant had followed her for some distance.¹ Mrs. Foster had placed her car in the garage and closed the garage door when she was hit on the head several times with a blunt instrument. These blows caused a fracture of her skull, rendered her unconscious and caused almost instantaneous death. The victim’s body was discovered by her husband at about 11:05 p.m. when the latter returned from a bowling alley. The victim’s purse, containing money, bingo items and other articles, was missing. The defendant left the scene of the crime by automobile, presumably to return to his home in Pittsburgh, and on the way disposed of the victim’s purse and other items.

On March 18, 1957, while in the custody of Allegheny County authorities as a suspect in the commission of other crimes, the defendant admitted the attack upon Mrs. Foster and on the following day reenacted the crime in the presence of state policemen. He signed a Avritten statement which described in detail his activities and indicated whereat he had disposed of various possessions of the victim. The day subsequent to the crime these articles were found at or near the places indicated in defendant’s Avritten statement. At trial the defendant repudiated his Avritten statement, denied that he had been in Leechburg at the time of the crime and denied that he had attacked the victim.

Defendant’s present contentions are: (1) that the verdict was contrary to the evidence and the weight of the evidence; (2) that certain photographs of the victim and her clothing were improperly admitted in evidence; (3) that the court belOAV erred in admitting into evidence records of prior convictions of the defendant. More important, however, than these contentions is one which was not raised upon this appeal but which was raised by us at oral argument — whether the conduct of the prosecuting attorney in his cross-examination of the defendant so seriously prejudiced the defendant to the extent that he was deprived of a fair trial.

At the conclusion of the Commonwealth’s case the records of defendant’s prior convictions were admitted in evidence “for the sole purpose of assisting the jury in determining the penalty to be inflicted in the event of a finding of murder in the first degree.”² The admissibility of such evidence has been long recognized but only for that very restricted and limited purpose: Commonwealth v. Thompson, 389 Pa. 382, 133 A. 2d 207 and eases therein cited.

After the defendant concluded his case during which he had taken the stand to testify, records of prior convictions were again offered by the Commonwealth and admitted in evidence “for the specific purpose of affecting the credibility” of the defendant.³ Such evidence was likewise admissible but only for that very restricted and limited purpose: Commonwealth v. Yeager, 329 Pa. 81, 90, 196 A. 827; Commonwealth v. Williams, 307 Pa. 134, 149, 160 A. 602; Commonwealth v. Quaranta, 295 Pa. 264, 272, 273, 145 A. 89; Commonwealth v. Dorst, 285 Pa. 232, 238, 132 A. 168.

The Act of March 15, 1911, P. L. 20, 19 PS §711, imposes strict limitations upon the right to cross-éxamine a defendant in a criminal case concerning his commission or conviction of any offense other than that offense for which he is presently being tried. Instances wherein a prosecuting attorney has been permitted to question a defendant concerning previous arrests or convictions for crimes unconnected with the crime charged in the indictment are clearly inapposite to the instant factual situation: Cf. Commonwealth v. Dillard, 313 Pa. 420, 422, 169 A. 138; Commonwealth v. Flood, 302 Pa. 190, 194, 153 A. 152. Unless the Act of 1911, supra, is to be rendered entirely nugatory the utilization by the Commonwealth of prior convictions of a defendant in a homicide ease must be strictly and rigidly confined within the limits previously indicated by this Court.

The instant prosecuting attorney — not satisfied with the introduction of prior convictions to aid in fixing the penalty and determining credibility — in the course of his cross-examination of the defendant persisted in making frequent and repeated references to the defendant’s criminal record and penitentiary experiences.⁴ These continuous and persistent references during cross-examination to defendant’s past cannot be justified on any “credibility attack” theory. The prosecuting attorney’s cross-examination served as a convenient sounding board upon which was echoed and reechoed the fact that defendant had a criminal record and could not have failed to create a prejudice against defendant in the minds of the jury. If this type of cross-examination is to be condoned and to receive the imprimatur of approval by this Court, neither the clear mandate of the Act of 1911, supra, nor the rigid limitations long and consistently imposed by this Court upon the use in homicide cases of records of a defendant’s prior convictions have any practical significance. The frequent and persistent references to defendant’s past made such past a vital factor in determining defendant’s guilt. We have two alternatives: either to approve this type of cross-examination and thus ignore the Act of 1911 and the many pronouncements of this Court on the subject of the use of records of prior convictions or to disapprove such cross-examination and adhere both to the letter and spirit of the Act of 1911 and our previous decisions. The latter alternative must be adopted.

Our disapproval of this type of cross-examination indicates no sympathy for this defendant; it is simply a recognition of the right under the law of every person, including this defendant, to a fair and an impartial trial, a trial wherein his guilt or innocence of the offense whereof he stands charged is not determined by his past conduct or record.

From time immemorial under our jurisprudence, a person’s guilt or innocence of a crime has been determined on the facts surrounding that particular crime and not on the basis of other crimes which he has committed. Adherence to this basic concept of our criminal jurisprudence dictates our present decision.

In view of our conclusion it is unnecessary to pass upon defendant’s other contentions.

Judgment of sentence reversed and a new trial granted.

1 The evidence is viewed in the light most favorable to the Commonwealth: Commonwealth v. Gates, 392 Pa. 557, 141 A. 2d 219.

2 There were two such records: (1) a plea of guilty entered March 28, 1950 to a charge of burglary; (2) a plea of guilty entered the same date to a charge of armed robbery.

3 At that time the Commonwealth offered in addition to the two records enumerated in footnote 2, supra, the record of a prior conviction on a charge of larceny in West Virginia.

4 “Q. Well, you hare been in the penitentiary before; hadn’t you? You had served time in the penitentiary? . . . Q. Well, if you got from four to eight years for an armed robbery and a burglary, what did you think you were going to get for murder? . . . Q. You robbed a woman that time, didn’t you? ... Q. Of a woman, of a purse? . . . Q. You didn’t know that, and you spent four years in the Western Penitentiary? . . . Q. Well they do a lot of talking among the prisoners? . . . Q. Did you take up grammar while you were in the penitentiary? A. Did I take up grammar? Q. Did you study English while you were in the penitentiary? . . . Q. Now ho questioned you, didn’t he, about other matters? . . . Q. He questioned you about some murders in Pittsburgh; didn’t he; Mr. MeInerney? ... By Ur. Strauss: If the Court please, I am prepared to state that there was no connection between this man and any of the murders in Pittsburgh about which he was questioned. There was no connection, and I don’t mean to imply that there was. The point the Commonwealth proposes to show here is this; that this man was questioned about crimes that these men were primarily interested in showing, and in determining whether or not some of the cases in Pittsburgh— ... By Ur. Strauss: If the Court please, at this time I would like to ask this officer whether or not this defendant was charged with any homicide, or is under any homicide charge in Allegheny County about which he questioned him. The information I have is that he not only is not charged with any homicide in Allegheny County but he is not suspected in any homicide in Allegheny County at this time, and that he was cleared as a result of his interrogation and examination of any such crime in Allegheny County."