Com. v. Osborn

• Decision Date: 18 June 1987
• Citation: 364 Pa.Super. 505,528 A.2d 623
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth L. OSBORN, Appellant. 144 Pitts. 1986 145 Pitts. 1986
• Court: Pennsylvania Superior Court

Page 623

528 A.2d 623

364 Pa.Super. 505

COMMONWEALTH of Pennsylvania v. Kenneth L. OSBORN, Appellant.

144 Pitts. 1986

145 Pitts. 1986

Superior Court of Pennsylvania.

Argued Oct. 7, 1986.

Filed June 18, 1987.

Leonard Ambrose, Erie, for appellant.

Douglas W. Ferguson, Asst. Dist. Atty., Meadville, for Commonwealth, appellee.

Before DEL SOLE, KELLY and POPOVICH, JJ.

KELLY, Judge:

This case involves the consolidated appeals of appellant, Kenneth Leroy Osborn, from his conviction, after a jury trial on May 14, 1985, of terroristic threats (18 Pa.C.S.A. § 2706), and his conviction, after a jury trial June 11-12, 1985, of rape (18 Pa.C.S.A. § 3121). These convictions arose from entirely separate criminal episodes. However, because both appeals involve identical questions regarding the admissibility of evidence of appellant's prior perjury conviction and the legality of the sentences imposed, they have been consolidated on appeal pursuant to Pa.R.A.P. 513.

The terroristic threats conviction arose from appellant's threat to burn down the barn of a man who had testified on behalf of a neighbor of the appellant, against whom appellant had instituted summary civil proceedings before a district justice. Appellant denied threatening the former witness. The jury, however, found the appellant guilty. Post-verdict motions and supplemental post-verdict motions were denied.

The rape conviction arose from appellant's use of a shotgun to compel his girlfriend's sister-in-law to engage in non-consensual intercourse. Appellant admitted having intercourse with the victim, but claimed it occurred earlier in the evening, at a different location, and that it was consensual. The jury, however, found the appellant guilty. Post-verdict motions and supplemental post-verdict motions were denied.

Following a sentencing hearing on December 30, 1985, appellant was sentenced to a term of imprisonment of ten (10) to twenty (20) years on the rape conviction and a concurrent term of two (2) to four (4) years on the terroristic threats conviction. A motion to modify sentence was filed and denied. These timely appeals followed.

On appeal, appellant contends that: the trial court erred (in both cases) by permitting the Commonwealth to use the appellant's prior perjury conviction for rebuttal purposes; the trial court erred (in the rape case) by permitting the victim to testify concerning statements made by the appellant after the rape regarding violent crimes appellant said that he had previously committed and others he intended to commit, and counsel was ineffective in failing to request cautionary instructions regarding these statements; counsel was ineffective (in the rape case) in failing to seek suppression of the shotgun; the trial court erred (in the rape case) by failing to declare a mistrial, and counsel was ineffective in failing to request cautionary instructions following the victim's unsolicited statement of her willingness to take a lie detector test; and the sentences imposed upon the appellant for each conviction were illegal in that the trial court failed to consider relevant sentencing factors, gave an inadequate statement of reasons for imposing sentence, and had inadequate grounds for sentencing in the aggravated minimum range for the rape conviction and for deviating from the sentencing guidelines in sentencing on the terroristic threats conviction. We cannot agree.

Upon review of the record, the briefs of the parties and the well-reasoned opinions of the Honorable Richard Thomas, President Judge, we find no merit in these appeals. Accordingly, we affirm the judgments of sentence.

I.

Under 42 Pa.C.S.A. § 5912, "[i]n a criminal proceeding, a person who has been convicted in a court of this Commonwealth of perjury, ..., shall not be a competent witness for any purpose, although his sentence may have been fully complied with, unless judgment of conviction has been judicially set aside or reversed, or unless the proceeding is one to punish or prevent injury or violence attempted, done, or threatened to his person or property, in which cases he shall be competent to testify." See Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979); Commonwealth v. Meholic, 341 Pa.Super. 342, 491 A.2d 848 (1985). Appellant in the instant case admits that he was convicted of perjury in 1967.

Prior to trial on the terroristic threats charge, the Commonwealth moved to have the appellant declared incompetent to testify pursuant to 42 Pa.C.S.A. § 5912. On May 13, 1985, the Honorable Robert L. Walker denied the motion, but ruled that, if the appellant testified at trial, evidence of his prior conviction for perjury could be used for impeachment purposes. Judge Walker reasoned that precluding a convicted perjurer from testifying on his own behalf would be unconstitutional. Trial Court Opinion (No. 1985-161, terroristic threats case) at 4. ¹

Appellant argues that not only was he competent to testify in spite of his prior perjury conviction, but that under the rules set forth in Bighum, Roots, and their progeny, ² evidence of his prior conviction for perjury was not admissible to impeach his credibility at trial. We, however, decline to construe the rules announced in Bighum and Roots so as to create the "warm comfortable refuge for seasoned liars" which appellant seeks. Cf. Commonwealth v. Alicea, 498 Pa. 575, 583, 449 A.2d 1381, 1385 (1982) (McDermott, J., dissenting).

It is a fundamental tenet of American jurisprudence that an accused has a right to testify on his own behalf. It is well-accepted, though, that the opposing party may impeach the credibility of the defendant by introducing before the trier of fact evidence of his prior convictions. See Commonwealth v. Lewis, 350 Pa.Super. 595, 597-98, 504 A.2d 1310, 1312 (1986) (en banc ). In Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), our Supreme Court explained the basis of the rule permitting the admission of prior conviction evidence as follows:

This rule of evidence is founded on common sense and logic. If a defendant offers himself as a person worthy of belief, the jury has a right to know what kind of man he is--to aid in accessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for veracity is evidence for the jury's consideration.

173 A.2d at 474. Thus, evidence of a prior conviction is properly admissible to establish that the accused is not worthy of belief.

However, it is not admissible to establish that an accused has a propensity to commit the crime or type of crime of which he is accused. Nor is it admissible to establish that the accused is a habitual lawbreaker who should be punished and confined for the good of the community regardless of whether he might be innocent of the present charge. Therein lies the potential for undue prejudice inherent in such evidence. In some cases it may be difficult or impossible for the jury to limit its consideration of the prior conviction evidence solely to the issue of credibility. See Commonwealth v. Roots, supra, 393 A.2d at 365-66; see also Commonwealth v. Johnson, 340 Pa.Super. 26, 33-34, 489 A.2d 821, 825 (1985) (Wieand, J., dissenting).

Recognizing this potential for undue prejudice, our Supreme Court in Commonwealth v. Bighum, supra, decided to limit the rule in Butler by holding that:

Since the avowed purpose of using prior convictions in rebuttal is to cast doubt upon the defendant's veracity generally as a witness, it is important to limit the convictions used to crimes involving dishonesty or false statement.

307 A.2d at 262. The court in Bighum also adopted the balancing approach espoused in United States v. Luck, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), for the determination of the admissibility of evidence of prior crimen falsi convictions.

In Commonwealth v. Roots, supra, our Supreme Court stated:

We here reiterate, and to some extent, refine the factors that should be considered in the balancing equation. It is to be stressed that the list is not to be considered exhaustive or exclusive, but rather illustrative of the type of considerations that should influence the decision.

393 A.2d at 367. The court then set forth the following factors to be considered:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) The likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; (4) the strength of the prosecution's case and the prosecution's need to resort to the evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant's credibility.

393 A.2d at 367.

"Roots, Bighum, and their progeny require that the trial court balance various factors in determining, essentially, whether the probative value of the prior conviction evidence outweighs the risk of unfair prejudice inherent in such evidence." Commonwealth v. Stinnett, 356 Pa.Super. 83, 91, 514 A.2d 154, 158 (1986). Consequently, we must reject the reasoning of the trial court that perjury convictions are admissible per se. ³ Rather, we must agree with appellant that the admissibility of evidence of appellant's prior perjury conviction must be determined under the rules set forth in Bighum, Roots, and their progeny. However, an analysis of the Roots factors establishes that the evidence was in fact admissible; thus, we may affirm despite the trial court's assignment of a wrong reason for admission. See Commonwealth v. Terry, 513 Pa. 381, 399, 521 A.2d 398, 409 (1987).

...