Commonwealth v. Pettiford

385 A.2d 452, 253 Pa. Super. 503, 1978 Pa. Super. LEXIS 2652
Superior Court of Pennsylvania·Decided April 13, 1978·No. Nos. 130 and 136·Published·Cited by 2 cases

Opinions

VAN der VOORT, Judge:

Appellants Paul Pettiford and Ronald J. Hooven were passing through Steelton on September 24, 1975, Mr. Pettiford driving his red Toyota with Mr. Hooven in the passenger seat, when the two men were stopped by a Steelton police officer, Robert E. McCaleb. The Pettiford car was traveling 40 miles per hour in a 25 mile an hour zone during a very heavy rain, and Officer McCaleb stopped the Toyota to issue a citation to the driver. While the police officer was sitting in his patrol car writing the citation, Hooven entered the back seat of the patrol car and began to verbally harass Officer McCaleb. Hooven left the patrol and returned twice. The final time, Officer McCaleb got out of the car, told Hooven he was under arrest and ordered him to get into the back of the police car. When Hooven resisted, the police officer attempted to put handcuffs on him. A pitched battle resulted, with Pettiford joining in to help his companion. The three men thrashed around in the pouring rain for 15 to 20 minutes, with McCaleb trying to put the handcuffs on Hooven. Pettiford literally had his shirt torn off and Hooven nearly lost his pants. Pettiford received several scalp wounds and Hooven a bruised eye; Officer McCaleb received numerous abrasions on his head. Additional police help finally arrived, and Hooven and Pettiford were handcuffed and taken away with little further resistance. Officer McCaleb later went to a hospital where he received 25 stitches for his head wounds and stayed overnight for observation. As a result of the incident, the officer suffered a hearing impairment.

Appellant Pettiford was charged with aggravated assault, hindering apprehension, and speeding. Appellant Hooven [507] was charged with aggravated assault, resisting arrest, and disorderly conduct. The two men were tried together before a jury on February 3-5, 1976, with the same attorney representing both men. Both defendants were found guilty and on April 22, 1976, were sentenced to pay $10 fines and serve 1V2 to 4 years imprisonment. Appeal was taken to our Court from the judgment of sentence.

Appellant Pettiford argues that the trial court erred in refusing to admit testimony concerning the reputation of police officer McCaleb, which testimony, it is argued, would have corroborated appellant’s contention that the police officer was the aggressor in the fracas. The basis for the trial court’s refusal to allow the testimony into evidence was the fact that neither defendant was aware of the police officer’s reputation. In Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), our Supreme Court stated:

“Appellant submits that the victim’s record is admissible on either or both of two grounds: (1) to corroborate defendant’s alleged knowledge of the victim’s quarrelsome and violent character in an effort to show that defendant reasonably believed that his life was in danger; (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor. This Court has recognized this first ground at least since Abernethy v. Commonwealth, 101 Pa. 322, 329 (1882). In Abernethy, we said (at page 329) that evidence that the victim was a man of quarrelsome disposition was admissible to show that the defendant believed himself to be in danger when it had been shown that ‘the defendant and the deceased were on terms of intimacy.’ And this Court has recognized the second ground at least since Alexander v. Commonwealth, 105 Pa. 1, 9 (1884). There, evidence of the deceased’s propensity for hostility, vindictiveness and violence was held admissible on the issue of whether or not the victim was the aggressor. The Court imposed no requirement that defendant have had knowledge of the alleged propensity.” 445 Pa. at 302, 284 A.2d 748, 750.

[508] Amos supports appellant Pettiford’s argument that there is no requirement that the defendant have knowledge of the victim’s reputation for violence and aggressiveness. We find, however, that appellant failed to properly preserve this issue for review.

Appellant’s attorney called to the stand a witness, John Albert Poligone, who testified to appellant Pettiford’s good reputation in the community. The following then occurred:

“Q Mr. Poligone, how long have you been a resident in this area?
A Twenty-five years.
Q How long have you been a resident of Highspire? A Six months.
Q Now have you had occasion to know Officer McCaleb?
A Not personally but I know him through different instances that I have run into. I attended — like I spend most of my time in Steelton—
MR. DISSINGER: Your Honor, I am going to object to this going any further. I am going to object to the questioning, especially the follow-up.
THE COURT: Yes, I find the line of inquiry inadmissible. Objection sustained.
MR. TARMAN: It is laying a foundation for the reputation of the officer.
MR. DISSINGER: That’s what I would object to. THE COURT: I don’t think you can go into that, Mr. Tarman.
MR. TARMAN: Thank you very much, Mr. Poligone.”

Later in the trial, the following occurred at side bar:

THE COURT: I would like the record to show that earlier in the trial the defense offered Mr. Poligone for the purpose of going into the purported or alleged reputation of Officer McCaleb, although we did not get very far into that question. An objection was sustained and the [509] matter was not pursued because the jury was in the box. I have conferred with counsel and explained that the reason that the objection was sustained was because no foundation was established to show that either Mr. Hooven or Mr. Pettiford had knowledge of whatever the reputation was that the defense was wanting to produce. I have discussed this with Mr. Tarman and after hearing Mr. Hooven’s and Mr. Pettiford’s testimony Pm satisfied that neither of them knew the officer or knew anything about him. Therefore while I would permit the evidence that was offered if they did know about him, since it is admitted, that they did not know him or anything about any reputation such evidence is not admissible. Would that be a fair statement?
MR. TARMAN: I think that would be a fair statement.”

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Commonwealth v. Pettiford, 385 A.2d 452, 253 Pa. Super. 503, 1978 Pa. Super. LEXIS 2652 (Pa. Ct. App. 1978).

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