Com. v. Roots

• Decision Date: 05 October 1978
• Docket Number: No. 216,216
• Citation: 482 Pa. 33,393 A.2d 364
• Parties: COMMONWEALTH of Pennsylvania v. Richard ROOTS a/k/a Eugene Walker, Appellant.
• Court: Pennsylvania Supreme Court

Page 364

393 A.2d 364

482 Pa. 33

COMMONWEALTH of Pennsylvania v. Richard ROOTS a/k/a Eugene Walker, Appellant.

No. 216.

Supreme Court of Pennsylvania.

Submitted April 17, 1978.

Decided Oct. 5, 1978.

[482 Pa. 34] Ronald Schulman, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Gaile McLaughlin, Barthold, Asst. Dist. Attys., Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

NIX, Justice.

Appellant was arrested on a Sunday afternoon when he was found alone in the basement of a pawnshop by two Philadelphia police officers responding to a radio call. Hinges on the door to the basement had been broken and eleven bicycles had been moved approximately sixty feet from an opposite wall to a point nearer the door. No burglary tools were found and no vehicle was seen in the vicinity. Following a jury trial, appellant was convicted of burglary and sentenced to eight to twenty years imprisonment. The conviction was affirmed by the Superior Court, without an opinion, and this Court granted review.

Defense trial counsel sought to have the court disallow the introduction of a prior conviction for aggravated robbery. Counsel argued that the five-year-old prior conviction was relatively remote, that appellant had no other available means of defense, and that his credibility could be impeached by less prejudicial means, in the form of allegedly inculpatory statements made to the owner of the premises in question. The application was denied and as a result, appellant did not testify in his own behalf at trial.

The single question to be considered in this appeal is whether the trial court abused its discretion in refusing the application. The right of an accused to testify as a witness in his own behalf is a fundamental tenet of American jurisprudence. It is equally established that witnesses may be impeached by an opposing party. The introduction before the trier of fact of a prior conviction of the witness has long been recognized as an approved method of challenging credibility. Finally, all of our legal principles must conform to our evolving concept of fairness. These precepts are beyond dispute and do not require the citation of authority. The difficulty arises when we are called upon to accommodate the sometimes competing interests sought to be accomplished by these various principles.

It would be naive to conclude that a lay finder of fact is capable of eradicating the prejudice which results from the knowledge of a witness's prior criminal record. ¹ Even the most conscientious and dedicated juror's objectivity will be, at least unconsciously, colored by such knowledge. Furthermore, there is serious question as to the true probative value of a prior conviction on the veracity of a witness. It has also been suggested that the rule is based more on tradition than tested behavioral analysis. ² These concerns are magnified where the question is whether the accused who seeks to testify on his own behalf may properly have his credibility attacked because of a prior conviction. Knowledge that his past convictions will be revealed to the jury, if he testifies, may well foreclose his only opportunity to present his version of the occurrence. In any event the serious potential of this evidence for unfairly influencing the jury on the issue of guilt is inescapable.

In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), this Court endeavored to fashion a rule whereby these competing interests could be accommodated in a manner which was fair to both the accused and the prosecution. In Bighum, after rejecting the argument that the Due Process Clause of the Fourteenth Amendment was not offended because a defendant may elect not to testify in his own behalf because of his wish to keep from the jury knowledge of his prior criminal record, we then focused upon the question of when it is appropriate to admit such testimony.

"While admittedly the state has a legitimate interest to serve in showing that a defendant-witness is not worthy of belief, we cannot be unmindful of the tendency of a normal juror to accept testimony of prior convictions as a basis for finding a predisposition to commit the crime charged. We attempt to avoid this prejudice first by allowing the defendant the election not to testify without adverse comment, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973), and, in the event that he chooses to testify and such evidence is introduced, by making a cautionary instruction available to the defendant. I Wharton Criminal Evidence § 264 (13th Ed. 1972). However, we recognize that even with such safeguards, the possibility of unfairness in a given case may still be present . . ."

Id. at 566, 307 A.2d at 262.

Since the only legitimate purpose for the introduction of such testimony is to cast doubt upon the defendant-witness's veracity we held that the prior conviction must be for a crime that reflects upon the perpetrator's veracity. In so doing we rejected the simplistic view that one who possessed the mens rea to commit a felony was necessarily an unreliable witness:

"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 so used to crimes involving dishonesty or false statement."

Commonwealth v. Bighum, supra, at 566, 307 A.2d at 262.

Under the Bighum test, having once determined that the prior offense is one involving dishonesty, we are called upon to consider other factors before determining whether the evidence should be admitted in a given case for impeachment purposes.

". . . the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction. This last factor is of critical importance. Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions. Or, where the prior conviction is not critically important to the Commonwealth's case e. g., where other adequate means of attacking the defendant's credibility are available exclusion of prior convictions is strongly indicated." (citations omitted)

Id. at 567, 307 A.2d at 263.

Thus the Bighum rule represented a significant change in the former practice as to the admission of prior convictions for impeachment purposes. First, it restricted the offenses which could be used for impeachment to crimes involving dishonesty or false statement. Equally as important, Bighum rejected a per se rule of admissibility even where the prior crime involved dishonesty or false statement. ³ This was a clear departure from the prior practice that permitted the introduction of a Prior conviction for Any felony and embraced a per se rule of admissibility.

These changes reflected a realization that the right of the prosecution to confront a defendant-witness does not reach such a priority that the inherent unfairness in this type of impeachment should be ignored. In Bighum after rejecting a request that we abrogate the practice of using prior convictions for impeachment of defendant-witnesses we endeavored to strike a balance between the competing interests by charging the trial court to weigh certain enumerated factors. These factors were designed to limit the admission of this type of evidence to situations where its introduction was of essential evidentiary value to the prosecution and not unreasonably unfair to the defense. 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. Most importantly we stress that there must be a meaningful exercise of discretion in these cases and that the former per se rule of admissibility has been expressly repudiated. In making the determination as to the admissibility of a prior conviction for impeachment purposes, the trial court should consider: 1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; ⁴ 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 this 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.

The trial judge expressed the view that "the underlying assumption is that prior convictions would ordinarily be admissible." Thus the trial judge placed the burden upon the defendant to persuade the court that " the prejudicial effect of impeachment "far outweigh(ed)" the relevance of the prior conviction on the issue of credibility. ⁵ We are constrained to express our disagreement with this initial premise. We do not assume the admissibility of this impeachment evidence absent a substantial showing of prejudice by the defendant. Rather, the burden is upon the prosecution to show that the need for this evidence overcomes its inherent potential for prejudice. See Commonwealth v. Bobko, 453...