Com. v. Hernandez
Decision Date | 19 November 2004 |
Citation | 862 A.2d 647 |
Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Claudio HERNANDEZ, Appellant. |
Court | Pennsylvania Superior Court |
Richard R. Pugh, Lancaster, for appellant.
Susan E. Moyer, Asst. Dist. Atty., Lancaster, for Com., appellee.
¶ 1 Claudio Hernandez challenges his judgment of sentence for one count each of Delivery of Heroin and Possession with Intent to Deliver Heroin, see 35 Pa.C.S. § 780-113(a)(30), for which he was sentenced to two consecutive terms of two to six years' incarceration. Hernandez contends that the trial court committed reversible error when it permitted the prosecutor to question him concerning two prior convictions for possession with intent to deliver heroin. We find that Hernandez's own unsolicited testimony that he had never sold drugs constituted an assertion of good character that the prosecutor was entitled to contradict by reference to countervailing evidence of prior convictions. Consequently, we affirm.
¶ 2 A Lancaster police officer testified at Hernandez's trial that he observed Hernandez give what appeared to be a packet of heroin to another man in exchange for cash. Other officers stopped the other man, and found heroin in his possession. Soon thereafter, officers arrested Hernandez. Following his arrest, Hernandez repeatedly insisted to police officers that he needed his shoes. Prompted by these requests, an officer searched Hernandez's shoes and found three packets of heroin in a hollowed out portion of a shoe heel. Hernandez was charged with one count each of Delivery of Heroin and Possession with Intent to Deliver Heroin.
¶ 3 At trial, Hernandez took the stand. During direct examination, he testified, inter alia, to his twenty-year addiction to heroin. During cross-examination, the prosecutor sought to establish how Hernandez secured drugs, or money to purchase drugs, to sustain his habit. Hernandez testified that drug dealers sometimes used him as a test subject, by asking him to sample heroin and assess whether it was good enough to sell. The following discussion ensued:
Notes of Testimony, 6/7/03 (N.T.), at 90-92.
¶ 4 After the adverse ruling, defense counsel sought to minimize the damage by proposing to admit the prior convictions by stipulation. The prosecutor, however, declined. The prosecutor explained, N.T. at 92-93. The trial court allowed the prosecution to refuse the proposed stipulation, and cross-examination continued.
N.T. at 93-94. After a few additional questions concerning the facts of the allegations before the court, the prosecution concluded its cross-examination. Defense counsel then declined the opportunity to reexamine Hernandez.
¶ 5 In rebuttal, the prosecution called Danette Burkholder, the chief deputy in the Clerk of Courts Office, to testify as to Hernandez's prior convictions. She testified that in 1994, and again in 1998, Hernandez pleaded guilty to single counts of possession with intent to deliver nine bags of heroin. N.T. at 96-98. Defense counsel did not cross-examine Ms. Burkholder.
¶ 6 Following trial, the jury returned a verdict of guilty on both counts alleged. After procedural challenges pertinent to the sentencing proceeding held before the original trial judge, said judge recused himself from sentencing. Soon thereafter, the judge to whom sentencing had been assigned following the trial judge's recusal sentenced Hernandez to two identical consecutive sentences aggregating to four to twelve years' incarceration. Hernandez's post-sentence motion was denied, and this appeal followed.
¶ 7 Hernandez raises the following issue for our review: "WHETHER THE TRIAL COURT ERRED IN ALLOWING THE ASSISTANT DISTRICT ATTORNEY TO CROSS-EXAMINE APPELLANT ON HIS PRIOR RECORD AND TO INTRODUCE, IN REBUTTAL, THE NON-CRIMEN FALSI PRIOR RECORD OF APPELLANT." Brief for Appellant at 4. ¶ 8 "Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the court's decision on such a question absent a clear abuse of discretion." Commonwealth v. Bracey, 831 A.2d 678, 681 (Pa.Super.2003) ( ). "[A] discretionary ruling cannot be overturned simply because a reviewing court disagrees with the trial court's conclusions." See Commonwealth v. O'Brien, 836 A.2d 966, 968 (Pa.Super.2003)
(internal quotation marks omitted).
¶ 9 Pennsylvania courts go cautiously when considering whether to admit evidence of prior convictions for purposes of impeaching the credibility of a defendant testifying in his own behalf. See Commonwealth v. Garcia, 551 Pa. 616, 712 A.2d 746 (1998)
. Hernandez draws his argument principally from Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), and Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Both Garcia and Roots considered the admission of evidence of prior crimen falsi convictions under Pennsylvania Rule of Evidence 404 for purposes of impeachment. See generally Garcia, 712 A.2d at 748 ( ). In this case, however, we are not presented with crimen falsi convictions, thus another standard comes into play. See Garcia, 712 A.2d at 748-49 ( ).
¶ 10 The relevant statute, which permits a trial court to admit evidence of a defendant's non-crimen falsi prior convictions under narrow circumstances, provides as follows:
42 Pa.C.S. § 5918. We have made clear that § 5918 allows the prosecution to cross-examine a defendant concerning his past convictions to "repudiate specific evidence of good character" offered by that defendant. Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862, 869 (1984).
¶ 11 In Trignani we described the situation at trial as follows:
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... ... ¶ 19 "Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the court's decision on such a question absent a clear 875 A.2d 1186 abuse of discretion." Commonwealth v. Hernandez, 862 A.2d 647, 650 (Pa.Super.2004) (quoting Commonwealth v. Bracey, 831 A.2d 678, 681 (Pa.Super.2003), appeal denied, 577 Pa. 685, 844 A.2d 551 (2004)). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of ... ...
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Commonwealth v. Hyland, 2005 PA Super 199 (PA 5/27/2005), 912 MDA 2004.
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