Com. v. Harris

• Decision Date: 09 May 1995
• Citation: 442 Pa.Super. 116,658 A.2d 811
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert James HARRIS, Appellant.

Page 811

658 A.2d 811

442 Pa.Super. 116

COMMONWEALTH of Pennsylvania, Appellee v. Robert James HARRIS, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 13, 1995.

Filed May 9, 1995.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.

Before McEWEN, POPOVICH and CERCONE, JJ.

POPOVICH, Judge:

This case concerns the appeal of the judgment of sentence (5-10 years imprisonment) for aggravated assault by the appellant, Robert James Harris. We reverse.

Viewing the evidence in a light most favorable to the verdict-winner, and drawing all reasonable inferences therefrom, the record reveals that at approximately 9:30-10:00 p.m. on the 10th of January, 1992, Donald Morris had exited his home in search of his 13-year-old daughter. As Mr. Morris walked along Cornwall Avenue, he was approached by an unidentified male and propositioned to purchase crack cocaine. Mr. Morris declined the offer, but before he could leave the area he observed the appellant, at a distance of 5-7 feet, with a screwdriver in hand. Morris accelerated his pace, and, as he recalled:

Mr. Harris grabbed my right sleeve[, but before doing so Harris asked: "Where is the money?" Then,] ... six to nine unidentified black males were running up the street towards us. I proceeded to deal with Mr. Harris swinging him around and I was jumped by [sic ] the back.

N.T. 29, 39. The victim was assaulted a second time as he lifted himself from the pavement. Also, the appellant grabbed the victim's face and swung at it with his fist but missed. The two stood one foot apart during this encounter.

With regard to the question of identification, Mr. Morris stated that, during the assault, he:

... touched th[e appellant's] head. His head was platted all up in plats. [The victim] rubbed th[e appellant's] head. [He] kn[e]w it was Mr. Haris. That's what was in front of [the victim] when he lifted [the victim's] head up from the ground and tried to sucker punch [the victim].

Id. at 33. (Emphasis added). Additionally, during the course of the assault, the victim had $80 stolen from his person, his jaw was broken (and wired for 6 months) and his ribs were fractured.

Thereafter, the police were notified of the assault and the victim selected the appellant out of a photo-array as one of his assailants. The appellant was charged with Robbery, Aggravated Assault and Criminal Conspiracy. Following a jury trial, the appellant was found guilty of Aggravated Assault and sentenced. This appeal ensued and raises two issues for our review.

The first issue posed is whether the trial court erred in ruling that the appellant could be impeached with a prior conviction for Hindering Apprehension if he testified.

In this jurisdiction, "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 statements...." Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326, 1329 (1987). This "rule of evidence is founded upon common sense and logic. If a defendant offers himself as a person worthy of belief, the jury has the right to know what kind of man he is--to aid in assessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for veracity as evidence for the jury's consideration." Commonwealth v. Butler, 405 Pa. 36, 47, 173 A.2d 468 (1961).

However, it is not always apparent which crimes fall within the ambit of crimen falsi. See Commonwealth v. Jackson, 526 Pa. 294, 585 A.2d 1001 (1991) (robbery); Commonwealth v. Walker, 384 Pa.Super. 562, 559 A.2d 579 (1989) (criminal trespass); Commonwealth v. Gordon, 355 Pa.Super. 25, 512 A.2d 1191 (1986) (burglary); Commonwealth v. Gallagher, 341 Pa.Super. 152, 491 A.2d 196 (1985) (possession of instrument of crime and sexual offenses charged would permit impeachment for impersonating public officials and theft of services); Commonwealth v. Jones, 250 Pa.Super. 98, 378 A.2d 471 (1977) (aggravated robbery is a crime involving serious moral turpitude and indicates propensity for dishonesty on defendant's part); see also Commonwealth v. Weiss, 530 Pa. 1, 606 A.2d 439, 442 n. 5 (1992) (unauthorized use of credit card conviction admissible to impeach credibility as a crime of dishonesty or false statement), and contrast with Commonwealth v. Levene, 492 Pa. 287, 424 A.2d 865 (1980) (reversible error to impeach defendant by prior arrests for alcohol related conduct); Commonwealth v. Kilgore, 437 Pa.Super. 491, 650 A.2d 462 (1994) (record was not complete to assess the appellant's claim that trial court erred in prohibiting impeachment of prosecution witness with introduction of conviction for arson); Commonwealth v. Correa, 423 Pa.Super. 57, 620 A.2d 497 (1993) (arrest and conviction for possession of a controlled substance was not evidence of crimen falsi to impeach the appellant's character witness, but it was admissible to show witness' bias against police and that a bench warrant had been issued for his arrest); Commonwealth v. Bowman, 400 Pa.Super. 525, 583 A.2d 1239 (1990) (suspension of driver's license not crimen falsi ); Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985) (convictions for prostitution not admissible as crimen falsi for impeachment purposes); Commonwealth v. Phillips, 272 Pa.Super. 16, 414 A.2d 646 (1979) (error to allow evidence of theft conviction to impeach defendant where record failed to establish that theft accomplished by deceit); Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 404 A.2d 697 (1978) (prior conviction for fornication and corrupting the morals of minor could not be used to impeach defendant); Commonwealth v. Benefiel, 254 Pa.Super. 248, 385 A.2d 1003 (1978) (rape is not crimen falsi for impeachment use); Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977) (statutory rape cannot be used to impeach).

It is the contention of the Commonwealth that because Hindering Apprehension "is placed in the Crimes Code in Chapter 51, entitled "Obstructing Governmental Operations[,]" ... it would have been proper impeachment under Commonwealth v. Randall. Thus, the trial court's ruling was correct and appellant is not entitled to a new trial." Commonwealth's Brief at 5. We disagree and take exception to the trial court's ruling under the particular facts of this case.

We begin with Justice Zappala's Concurring Opinion in Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536, 540 (1990) which cautioned that:

... determining 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 even in proper perspective in terms of meaningfulness and as an aid to the trier of fact. Commonwealth v. Strong, 522 Pa. 445, 468, 563 A.2d 479, 490 (1989, Zappala, dissenting).

To the preceding caveat, we would add that the elemental aspects of the offense and the conduct engaged in by a defendant, which forms the basis of the anticipated impeachable offense, are to be scrutinized in concert to assess the crimen falsi nature of the offense.

Instantly, it is true that the statutory posture of Hindering Apprehension appears under Chapter 51's legend: "Obstructing Governmental Operations." However, so does Resisting Arrest (at 18 Pa.C.S.A. § 5104), which the Williams Court held did not involve dishonesty or false statements. More specifically, Williams held that it was error for the trial court to allow the prosecution to impeach the defendant on cross-examination with the disclosure of such offense to the jury.

Likewise, we do not attribute a crimen falsi status to a Hindering Apprehension conviction under Subparagraph (4) of Section 5105(a), which reads:

A person commits an offense [of Hindering Apprehension] if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:

(1) ...

(2) ...

(3) ...

(4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law enforcement; or

(5) ... ¹

Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 5105.

We refer to Subparagraph (4) of Section 5105(a) because of the trial court's acknowledgement that the appellant pleaded guilty to "warn[ing] a friend of his[,] who the police were seeking to apprehend, of the police coming." The trial court took the position that a conviction for such conduct rose to the level of crimen falsi usable as an impeachment tool should the appellant elect to take the stand. We disagree.

If Resisting Arrest, which admittedly involves interaction between a defendant and the police, was held by the Supreme Court in Williams not to reflect upon one's propensity to lie, how more attenuated is the appellant's behavior here with no evidence of interaction with police in advising a friend of an impending arrest to escape apprehension.

It is evident from a reading of Subparagraphs (1)-(3) and (5) of Section 5105(a), had the appellant engaged in some form of "concealment," "disguise," or providing the authorities with "false" information, he was guilty of crimen falsi behavior triggering the prosecution's entitlement under Randall, supra, 515 Pa. 410, 528 A.2d 1326, to impeach the witness guilty of such misconduct. Instantly, however, we are not advised of any false statements attributable to the appellant regarding the whereabouts of the at-large friend, nor do we equate dishonesty with his failure to volunteer the location of the wanted man. The trial court's reference to such (in)action as indicative of crimen falsi behavior rings hollow.

The trial court admitted that it is what the appellant should have done (inform police of friend's location) and not what he did do (told friend of...