Commonwealth v. Eubanks

512 A.2d 619, 511 Pa. 201, 1986 Pa. LEXIS 821

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

Brent Eubanks was convicted of rape, aggravated assault, simple assault and unlawful restraint by a jury sitting in the Court of Common Pleas of Philadelphia. He was sentenced to seven to twenty years for rape and two and a half to five years for aggravated assault, the sentences to run concurrently. Sentence on the other charges was suspended. Judgment of sentence was affirmed by Superior Court per curiam, 329 Pa.Super. 558, 478 A.2d 56. This Court granted Eubanks’ petition for allowance of appeal.

Footnotes

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Eubanks and Tracy Lomax, the complainant, gave conflicting versions of the events underlying the convictions. Lomax testified that on June 30, 1979, she returned to her apartment in the early hours of the morning after having spent the evening with her family. At approximately 5:00 a.m. she left her apartment and entered the common hallway of her apartment building to go to the bathroom. While she was in the hall, Eubanks, who lived one floor below Lomax, grabbed her and pulled her downstairs to his apartment. Although she fought and resisted, both in the hall and in the apartment, Eubanks overpowered her and finally raped her in his apartment. Nevertheless, she continued to scream and fight. Lomax was finally rescued when a police officer, who had been alerted by a neighbor that screams were coming from the building, managed to enter the building and burst into Eubanks’ room.

Eubanks’ testimony was that he encountered Lomax on the stairs of his apartment building during the early morning hours of June 30, 1986, and she invited him to her apartment to smoke marijuana cigarettes. After three cigarettes, they had consensual sex. When Eubanks prepared to leave, Lomax asked him to play a “game” with her. She explained that she was experiencing difficulty becoming sexually aroused because she had shot someone in the head. She then asked Eubanks to go to his apartment and wait for her without putting any clothes on. Eubanks agreed to do this, thinking that she would come down and they would again have sex. Eubanks went to his apartment and Lo-max arrived apparently fully clothed. After Eubanks closed the door, however, Lomax said, “I’m going to fix you,” and threw a pair of panties on the floor which she had been holding in her hand. She then began to shout, “Rape. Help. Rape.” Eubanks testified that he tried to quiet her by grabbing her and covering her mouth, but she continued to shout and fight him. He testified that the shouting and scuffling continued for ten minutes until the police arrived.

One Mr. Holmes testified that he heard the screams while he was visiting the house next door between 5:00 a.m. and 5:30 a.m. Someone was shouting, “Please don’t kill me. Somebody help me.” Shortly after Holmes left the neighbor’s house at 5:30 a.m., he encountered a police car and told the officer about the screams. He accompanied the officer to the house and both could still hear the screams from outside. The officer testified that he entered the house, heard a woman screaming “Help me, please. Don’t do it no more,” and “Rape.” In the hall outside Eubanks’ apartment, he heard a male voice say, “Shut the f— up.” He then burst in the door and discovered Lomax, whom he described as crying hysterically and bruised, with her face swollen. Eubanks was naked.

Eubanks asserts nine claims of error, but because of our disposition of this case, we address only two of these claims. First Eubanks asserts that the attorney for the Commonwealth engaged in a pattern of improper cross-examination which denied him a fair trial. During his testimony, Eubanks stated that he was planning to install drywall in the parish house of a church later in the day on June 30, 1979. Cross-examination included the following exchanges:

Q. Is it correct that you were working for the parish?

A. Yes.

Q. It’s because you were a good Christian?

DEFENSE COUNSEL. Objection, Your Honor.

THE COURT. Sustained. It will be stricken from the record. The jury is instructed to ignore it.

* * * * * *

Q. Does this church teach smoking marijuana?

DEFENSE COUNSEL. Objection.

THE COURT. Sustained.

Q. Premarital sex?

DEFENSE COUNSEL. Objection.

THE COURT. Sustained.

Si! * * * * *

Q. Did you think smoking marijuana with Tracy Lomax at 5 in the morning was going to help you do a good job for the church, so you could get to the Marine Corps and serve your country in a week?

DEFENSE COUNSEL. Objection.

THE COURT. Sustained.

* * * * * Si!

Q. Did you think that smoking marijuana at 5 o’clock in the morning was going to help you do a good job for the church, so you could do a good job for your country?

DEFENSE COUNSEL. Objection.

THE COURT. Sustained.

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Q. And you go to church. Right?

THE COURT. Mr. Carpenter [The prosecutor].

As the Commonwealth attorney explained in his closing remarks, the purpose of this line of questioning was to indicate to the jury that Eubanks’ claimed church service and Marine Corps affiliation was irrelevant to the issue of whether Eubanks committed a crime. In effect, these prosecutorial remarks constituted a sarcastic commentary on what the prosecutor perceived as Eubanks’ attempt to clothe himself in innocence by asserting an affiliation with religious and military institutions.

The prosecutor’s intentions notwithstanding, questions concerning Eubanks’ religious beliefs may not be asked:

No witness shall be questioned, in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting either his competency or credibility.

Act of July 9, 1976, P.L. 586, No. 142, 42 Pa. C.S.A. § 5902(b). This statute is firmly grounded in prohibitions against religious persecution found in the First Amendment to the United States Constitution and the Art. I § 3 of the Pennsylvania Constitution, which provides:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

Pennsylvania, more than any other sovereignty in history, traces its origins directly to the principle that the fundamental right of conscience is inviolate. See The Papers of William Penn, Vol. I (Dunn & Dunn, University of Pennsylvania Press), pp. 51-52, 90-93, 268, 280, 452, 511. In general, thus, our Commonwealth is neutral regarding religion. It neither encourages nor discourages religious belief. It neither favors nor disfavors religious activity. A citizen of this Commonwealth is free, of longstanding right, to practice a religion or not, as he sees fit, and whether he practices a religion is strictly and exclusively a private matter, not a matter for inquiry by the state. In the case at bar, the Commonwealth’s cross-examination would not have suffered in the slightest had questions concerning Eubanks’ religion not been asked.

In Commonwealth v. Mimms, 477 Pa. 553, 385 A.2d 334 (1978) the prosecutor attempted to impeach the credibility of a defense witness by asking him:

Q. Tell me, are you a good friend of Harry Mimms [the defendant]?

A. I am an acquaintance of him, I know him.

Q. You know him very well would you say?

A. Yes, sir.

Q. Are you both Muslims?

A. Sir?

MR. ABRAMSEN: Objection, sir, I move for withdrawal of a juror.

THE COURT. Overruled.

BY MR. KLEIN

Q. Are you both Muslims?

A. Yes, sir.

477 Pa. at 557, 385 A.2d at 335. The Mimms Court held that this line of questioning was improper, reversed the conviction and remanded for a new trial. The Court stated:

Although affiliation rather than belief was the thrust of the cross-examination above quoted, the one blends into the other. While circumstances can be imagined in which religious affiliation would be of relevance, it is clear from the present record that the religious affiliations of appellant and Morrison [the defense witness] were irrelevant to any issue at trial and that such inquiry had not in any way been evoked by the direct examination of Morrison.

477 Pa. at 558, 385 A.2d at 336. Neither in Mimms did we establish nor in the present case do we now establish a per se rule of reversible error. As we stated in Mimms, “Whether evidence, admitted in violation of a statute, actually deprives a defendant of his right to a fair trial must be viewed in the light of the attendant circumstances.” 477 Pa. at 559, n. 8, 385 A.2d at 336, n. 8. Cf. Commonwealth v. Greenwood, 488 Pa. 618, 413 A.2d 655 (1980). In the case at bar a new trial is required because the questioning was irrelevant to any issue in the case and because the improper inquiry concerning Eubanks’ religious beliefs continued even after the court sustained objections to this type of inquiry, gave an instruction, and ordered the improper questions stricken from the record.

In addition, because retrial will inevitably involve another issue which arose at the first trial, we also address Eu- banks’ claim that it was error to exclude evidence that Lomax had been convicted of third degree murder. See Commonwealth v. Bogan, 482 Pa. 151, 155, 393 A.2d 424, 426 (1978) (Issues likely to arise again on retrial addressed to promote the efficient administration of justice.) Eubanks sought to introduce evidence of the murder conviction in order to show that his version of events leading to his arrest is credible. Reduced to its elements, Eubanks is claiming that evidence of Lomax’s murder conviction tends to corroborate his claim that Lomax told him she had. killed someone by shooting them in the head.

The first question which arises as to Eubanks’ claim is whether evidence of the conviction is relevant to the Eu-banks’ testimony that Lomax told him about the killing. Citing McCormick on Evidence, we have defined relevant evidence as follows:

Any analysis of the admissibility of a particular type of evidence must start with a threshold inquiry as to its relevance and probative value. A leading commentator has suggested the following desideratum for relevancy: “[D]oes the evidence offered render the desired inference more probable than it would be without the evidence? ... Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.”

Commonwealth v. McCusker, 448 Pa. 382, 388, 292 A.2d 286, 289 (1972). (Emphasis in original.)

While the question is not without difficulty, since evidence that Lomax committed murder does not prove that Lomax told Eubanks she committed murder; nevertheless, in the context of a criminal defense, such evidence is admissible because it makes the defendant’s version “more probable than it would be without” evidence of the conviction. Admittedly, admission of such evidence may, to some degree, smear the complaining witness in the eyes of the jury. But the complaining witness is not on trial; her liberty is not at stake. Considerations which require that prior convictions be excluded from evidence against a de fendant, except for convictions involving crimen falsi which may be admitted under well-established rules, are not applicable to the question of what prior convictions may be admitted into evidence against a complaining witness.

A similar question arose in Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976):

[A]ppellant complains that the testimony of a defense witness, Frank Mack, was improperly excluded. In his offer of proof, appellant contended that Mack would have corroborated his allegation that Johnson illegally sold drugs without prescriptions. Mack would have testified that he lived across the street from the pharmacy, had observed young males obtaining pills without prescriptions, and had consulted with authorities for the purpose of watching the store. Although it was the jury’s prerogative to assess the credibility of the witness and the weight to be attributed to his testimony, the proffered testimony definitely was relevant to the proposition upon which the defense was building its case. The exclusion of this testimony, therefore, was improper. Commonwealth v. Bailey, 450 Pa. 201, 299 A.2d 298 (1973); Commonwealth v. Collins, 447 Pa. 300, 290 A.2d 121 (1972).

In Bailey, supra, the trial court excluded testimony of two witnesses who had borrowed money from a moneylender named Robinson. We held that this was reversible error because the testimony would have supported Bailey’s version as to his own dealings with Robinson and his reason for going to his house. Id., 450 Pa. at 206-07, 299 A.2d at 301. The Bailey court relied upon Commonwealth v. Collins, 447 Pa. 300, 290 A.2d 121 (1972), a similar case in which we held it error to refuse to admit testimony of others who had dealt with the deceased proprietor as a fence in order to substantiate Collins’ version of his purpose for being in his shop. Id., 447 Pa. at 302-03, 290 A.2d at 122. We find the instant case to be indistinguishable from the situations present in Bailey and Collins. An accused has a fundamental right to present defensive evidence so long as such evidence is relevant and not excluded by an established evidentiary rule. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038 [1049], 35 L.Ed.2d 297 (1973); Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). Once found to be admissible, the determination of the probative value of such evidence must be reserved to the factfinder. Here, Mack would have testified from personal observations that Johnson sold drugs to young males without prescriptions. Such evidence would have supported Greene’s version of his purpose for going to the pharmacy. It is true that the probative value of Mack’s testimony may have been determined by the jury to be minimal. Nevertheless, since the jury never had the opportunity to consider the testimony, its exclusion requires reversal.

469 Pa. at 404-6, 366 A.2d at 237. (Emphasis added.) Similarly, in the present case, evidence of Lomax’s conviction supports Eubanks’ claim that she told him she had killed someone, although it does not establish with certainty that such a conversation occurred. And the claim that Lomax told him that she had killed someone, in turn, supports Eubanks’ version of events on June 30, 1979. As in Greene, the jury may determine that the probative value of this evidence is minimal; nevertheless, it is for the jury, not for this Court, to assess the importance of such evidence. We hold, therefore, that exclusion of evidence of Lomax’s prior murder conviction was error, and if at retrial such evidence is offered under similar circumstances, it must be admitted into evidence.

Judgment of sentence is vacated and the case is remanded for a new trial.

McDERMOTT, j., files a concurring opinion. LARSEN, J., files a dissenting opinion which PAPADAKOS, J., joins.

This case was reassigned to this writer on March 17, 1986.