Com. v. Coleman

• Decision Date: 18 September 1995
• Citation: 445 Pa.Super. 199,664 A.2d 1381
• Parties: COMMONWEALTH of Pennsylvania v. Alfonzo COLEMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 1381

664 A.2d 1381

445 Pa.Super. 199

COMMONWEALTH of Pennsylvania v. Alfonzo COLEMAN, Appellant.

Superior Court of Pennsylvania.

Submitted July 17, 1995.

Filed Sept. 18, 1995.

David N. Wecht, Pittsburgh, for appellant.

Scott A. Bradley, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Before KELLY, JOHNSON and CERCONE, JJ.

CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered following a jury trial. We affirm.

The Honorable Jeffrey A. Manning has explained the events underlying this appeal in the following manner:

During the early morning hours of December 2, 1992, the victim, Marvin Barksdale, was on his way home when the defendant approached and asked him whether he had the defendant's money. The victim replied that he did not have the money, whereupon the defendant reached into his coat, pulled out a sawed-off shotgun, shot the victim in his left thigh and took money from him. (N.T. 3/23-24/94 at 18-20; 44-46.)

Trial Court Opinion dated December 12, 1994, filed April 27, 1995, at 1. In March of 1994, a jury found appellant guilty of one count each of robbery ¹ and aggravated assault. ² The trial court imposed an aggregate sentence of fifteen (15) to thirty (30) years imprisonment. Court appointed counsel was permitted to withdraw from the case and appellant filed a pro se notice of appeal. The trial judge subsequently appointed new counsel to represent appellant.

The instant timely appeal presents the following issues for our consideration:

A. THE TRIAL COURT ERRED IN BARRING THE DEFENDANT FROM IMPEACHING BARKSDALE ON THE BASIS OF BARKSDALE'S CRIMINAL RECORD.

1. The Trial Court should have balanced the probative value of the impeachment against the danger of prejudice rather than barring the questions on the assumption that the conviction was not a crimen falsi.

2. The crimen falsi requirement should apply only to defendant witnesses.

3. Possession of drugs with intent to deliver should be considered a crime of dishonesty or false statement.

B. COLEMAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND SUFFERED DEPRIVATION OF CONSTITUTIONAL RIGHTS WHEN HIS TRIAL ATTORNEY FAILED TO OBJECT TO THE SHOWING OF THE PLAINTIFF'S [sic] SCAR TO THE JURY, PRESENTED NO OPENING STATEMENT, AND INTRODUCED NO EVIDENCE OR WITNESS TESTIMONY.

We shall consider these claims in order.

Appellant first contends that the trial court erred in barring him from impeaching the complaining witness on the basis of the witness' criminal record. In Pennsylvania, "evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date." Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). However, our law prohibits impeaching a witness with prior arrests and prior convictions for crimes not involving crimen falsi. Commonwealth v. Stokes, 532 Pa. 242, 256, 615 A.2d 704, 711 (1992) (citing Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154 (1982), cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982) and Commonwealth v. Randall, supra ). ³ Unfortunately, "it is not always apparent which crimes fall within the ambit of crimen falsi." Commonwealth v. Harris, 442 Pa.Super. 116, 119, 658 A.2d 811, 812 (1995).

As Justice Zappala explained in a concurring opinion in Commonwealth v. Williams, 524 Pa. 404, 411-12, 573 A.2d 536, 540 (1990), there is an inherent ambiguity involved when working with the concept of crimen falsi in the absence of a meaningful guideline clarifying the crimes which fall within this category. In calling for the creation of a bright line definition for crimen falsi, Justice Zappala stated the following:

[D]etermining what crimes involve crimen falsi based solely upon the statutory title of the offense or the Clerk of Courts' verification that a defendant was convicted of a crime does not place that event in proper perspective in terms of meaningfulness and as an aid to the trier of fact.

Id. Mindful of Justice Zappala's caveat, this court has held that when deciding whether a particular offense is crimen falsi, one must address both the elemental aspects of that offense and the conduct of the defendant which forms the basis of the anticipated impeachment. Commonwealth v. Harris, 442 Pa.Super. at 118, 658 A.2d at 813.

In this case, the complaining witness was convicted of possession with intent to deliver. Our research has failed to uncover Pennsylvania precedent which addresses whether this offense is crimen falsi. However, in Commonwealth v. Correa, 423 Pa.Super. 57, 620 A.2d 497, appeal denied, 536 Pa. 638, 639 A.2d 24 (1993), this court agreed with the defense contention that simple possession of a controlled substance was not evidence of crimen falsi which could be employed for impeachment purposes. ⁴ See also Commonwealth v. Candia, 286 Pa.Super. 282, 428 A.2d 993 (1981) (possession of marijuana is not crimen falsi (per Brosky, J. with one judge concurring and one judge dissenting)). Our Legislature has defined "possession of a controlled substance" in the following manner:

Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16). By way of comparison, the crime of "possession with intent to deliver a controlled substance" comprises the following forbidden conduct:

Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

Id. at § 780-113(a)(30). We find no meaningful distinction between these two definitions which implicates dishonesty or false statement as an element for the crime of possession with intent to deliver. Thus, based solely on the statutory definitions, we cannot conclude that possession with intent to deliver is crimen falsi.

We do not say that this offense could never be crimen falsi. However, in the instant case, appellant has not provided any information concerning the conduct which led to the witness' conviction. This lack of factual detail prevents us from fully applying the Harris test. Both the elements of the crime and the accused's conduct must be scrutinized in concert to assess whether an offense should be deemed crimen falsi. Commonwealth v. Harris, 442 Pa.Super. at 118, 658 A.2d 811. There is simply no basis in the record before us for concluding that in this case, the complaining witness' prior criminal conviction was premised on conduct displaying dishonesty or false statement which would indicate the commission of crimen falsi.

We are cognizant of appellant's contention that the trial court should have balanced the probative value of the proposed impeachment evidence against the danger of prejudice to appellant's case through the exclusion of such evidence. However, we find this argument irrelevant to the instant case. Our law is settled that the discretionary-balancing test does not apply when the Commonwealth seeks to use a prior conviction to impeach the testimony of a defense witness other than the defendant himself. Commonwealth v. Gordon, 355 Pa.Super. 25, 27, 512 A.2d 1191, 1192 (1986). When the witness is not the defendant, the only relevant inquiry is whether the convictions were for crimes involving dishonesty or false statement. Id. We see no compelling reason to apply a different standard when it is the defense rather than the Commonwealth who seeks to impeach a witness with a prior conviction.

Appellant next contends that prior counsel was ineffective on the following bases: (1) failing to object when the Commonwealth caused the victim to display his scar to the jury; (2) failing to give an opening statement; and (3) failing to introduce evidence and/or present witnesses to testify on appellant's behalf. With respect to this type of claim, our Supreme Court has explained the following:

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client's interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceeding.

Commonwealth v. Jermyn, 533 Pa. 194, 198, 620 A.2d 1128, 1130 (1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994) (quoting Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988)). An allegation of ineffectiveness of counsel cannot be established without a finding of prejudice. Commonwealth v. March, 528 Pa. 412, 415, 598 A.2d 961, 963 (1991). Prejudice in this context is determined by an evaluation of whether "but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different." Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987).

Appellant was accused of committing aggravated assault. Under the relevant subsections of the aggravated assault statute, the Commonwealth was required to demonstrate either that: (1) appellant attempted to cause...