Com. v. Brown

• Decision Date: 29 March 1996
• Citation: 449 Pa.Super. 346,673 A.2d 975
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Antoine BROWN, Appellant.
• Court: Pennsylvania Superior Court

Page 975

673 A.2d 975

449 Pa.Super. 346

COMMONWEALTH of Pennsylvania, Appellee, v. Antoine BROWN, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 29, 1996.

Filed March 29, 1996.

Norris E. Gelman, Philadelphia, for appellant.

Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before WIEAND and TAMILIA, JJ. and MONTEMURO, J. ^*

MONTEMURO, Judge:

This appeal comes from appellant Antoine Brown's (Brown) conviction and judgment of sentence for aggravated assault and possession of an instrument of crime. Brown was found guilty by a jury on February 23, 1994, and was sentenced by the Honorable Charles P. Mirarchi, Jr., of the Court of Common Pleas of Philadelphia County on February 8, 1995, to consecutive sentences of ten to twenty years incarceration for aggravated assault and two and one-half to five years incarceration for possession of an instrument of crime. We affirm.

Brown was convicted for stabbing a co-worker, William Rase (Rase), on December 7, 1990. At the time, both men worked at a cemetery. Sometime after 12:30 p.m., as Rase was working alone in a part of the cemetery, Brown assaulted Rase with a blow to the head, and then stabbed him in the throat. Another employee, John Fital, found Rase at approximately 1:25 p.m. As a result of the attack, Rase was in a coma for five months. After emerging from the coma, Rase was unable to speak and was confined to a wheelchair, paralyzed from the waist down. Rase underwent extensive therapy, and eventually was able to communicate "yes" or "no" by using his thumb. Ultimately, in April, 1992, Rase was able to identify Brown as the person who assaulted him.

Brown, represented by new counsel, raises three issues for our review 1. Did the trial court commit reversible error when it ruled that Brown's prior participation in an ARD program for theft could be used to impeach his credibility as a witness, and so charged the jury?

2. Was trial counsel ineffective for not preserving, through objection, the trial court's error in charging that Brown's prior theft conviction and his prior participation in the ARD program for theft may be used for impeachment?

3. Was trial counsel ineffective for failing to object to blatant misconduct in summation by the prosecutor who literally testified that Walter Tate was an unindicted co-conspirator who had a Fifth Amendment right not to incriminate himself and accordingly could not be called as a witness by the prosecution?

Brown's first claim is that the trial court erred in allowing the Commonwealth to use his prior participation in an Accelerated Rehabilitative Program (ARD) for an arrest for theft to impeach his credibility. Brown claims that because participation in ARD is not a conviction, it may not be used for impeachment purposes.

The determination of the scope and limits of cross-examination are within the discretion of the trial court, and we cannot reverse those findings absent a clear abuse of discretion or an error of law. Commonwealth v. Nolen, 535 Pa. 77, 82, 634 A.2d 192, 195 (1993). Evidence of prior convictions may 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. If a period of greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Commonwealth v. Randall, 515 Pa. 410, 415, 528 A.2d 1326, 1329 (1987). This rule applies equally to defendants who testify. See Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990). Theft is a crime involving dishonesty, and therefore is a prior conviction which may be used to impeach credibility. Commonwealth v. Ellis, 379 Pa.Super. 337, 359, 549 A.2d 1323, 1334 (1988), allocatur denied, 522 Pa. 601, 562 A.2d 824 (1989).

Before Brown testified at trial, the trial court had already ruled that if Brown were to testify, Brown's theft conviction and ARD participation could be used by the Commonwealth to impeach him. Thus, Brown's trial counsel elicited this information on direct. In its charge to the jury, the trial court stated,

In referring to defendant's prior criminal record, I indicated that the defendant had one criminal contact. Actually, there were two. But it's your recollection that counts, not the Court's recollection. But there was brought out by defendant that there were two criminal contacts, both of them for theft. One resulted in a guilty plea. One resulted in ARD, which is the accelerated rehabilitative disposition program, which is a pretrial type disposition, without verdict.

The crime of theft has inherent in it dishonesty and falsehood. So that while the defendant can't be found guilty here because of whatever took place back in 1978 or '79, which is when these matters were committed, nevertheless you may weigh his testimony with respect to the areas of credibility and believability as I've defined for you and as the crimen falsi crimes that were committed affect the believability and credibility of his testimony. I am not telling you to find the defendant guilty because of prior criminal acts. The question is, is his testimony credible and believable or not? And that you will weigh.

(N.T. 2/23/94 at 90-91.) During closing arguments, defense counsel himself referred to the thefts as "two convictions." (N.T. 2/23/94 at 29.)

The Commonwealth argues that pursuant to Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), allocatur denied, 537 Pa. 638, 644 A.2d 161 (1994), cert. denied, 513 U.S. 867, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994), evidence of participation in an ARD may be used to impeach the credibility of a witness. In holding that a witness may be cross-examined concerning admission into an ARD program, the court noted that, "While it is clear that admission into an ARD program generally is not equivalent to a conviction, it equally is clear that the successful completion of such a program is not consistent with a finding of innocence." Id. at 43, 624 A.2d at 135. Citing 75 Pa.C.S. § 3731(e)(2), the court also noted that an ARD is treated as a conviction for certain purposes. Id. The court cited DeNillo v. DeNillo, 369 Pa.Super. 363, 535 A.2d 200 (1987), a child custody case, in support of its holding. However, DeNillo did not concern whether admission into ARD can be used for impeachment purposes; it held that it may be used in determining a child's best interest in a custody dispute. Id. at 366, 535 A.2d at 202.

The court did not cite the numerous cases that have held that admission into an ARD program is not a conviction that may be used for impeachment. In Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981), the court held that admission into an ARD program is not a conviction for purposes of impeachment. The court noted that admission into an ARD program "places the criminal proceedings in abeyance" so that a defendant can rehabilitate himself "without the necessity of trial and conviction." Id. at 5, 434 A.2d at 100-01.

In Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982), the court, although recognizing that an ARD amounts to a conviction for purposes of classifying a motorist as a habitual offender, cited Krall and stated that admission to an ARD program "is not equivalent to a conviction under any circumstance...." Id. at 541, 453 A.2d at 1019. See also Commonwealth v. Ferguson, 377 Pa.Super. 246, 546 A.2d 1249 (1988) (ARD not conviction for impeachment purposes), allocatur denied, 521 Pa. 617, 557 A.2d 721 (1989); Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988) (ARD not conviction for impeachment purposes); Commonwealth v. McSorley, 335 Pa.Super. 522, 485 A.2d 15 (1984) (citing Knepp and Krall ), aff'd, 509 Pa. 621, 506 A.2d 895 (1986).

Although, as the Bowser court recognized, admission into an ARD program may be treated as a conviction for certain purposes, those purposes are narrow in scope and, before Bowser, never included impeachment. In Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987), an en banc court, in interpreting the sentencing provisions of Drunk Driving Act, 75 Pa.C.S.A. § 3731, which Bowser cites, held that acceptance of ARD is equivalent to a conviction. Id. at 65, 530 A.2d at 894. However, the court stated that,

We emphasize that our decision in the instant case is narrow in scope. We deal here only with the proper interpretation of § 3731(e)(2).... It is true that when the word 'conviction' appears in a statute it is usually taken to mean 'the ascertainment of the guilt of the accused and judgment thereon by the court[.] However, this technical definition of conviction could not be applied 'where the intention of the legislature is obviously to the contrary....'

Id. at 59, 530 A.2d at 890-91 (citations omitted).

Hence, in dealing with a statutory mandate, acceptance of ARD may be considered a conviction. Absent such a directive, however, this court has consistently held, outside of Bowser, that admission into an ARD is not a conviction for impeachment purposes. The court in Bowser did not cite, let alone provide a reason to abandon, the prior line of cases holding that admission into ARD is not a conviction for impeachment purposes. Furthermore, the authorities relied upon by Bowser do not hold that admission into ARD may be used for impeachment purposes. Because we have no reason to abandon the pre-Bowser line of established case law, we hold that the use of Brown's participation in an ARD program was not a conviction upon which his credibility could be impeached.

The Commonwealth contends that even if the trial court erred, the impeachment by use of the ARD was cumulative of other impeachment evidence and was thus harmless error. An error is deemed harmless if we are convinced beyond a reasonable doubt that...