Com. v. Toomey

• Decision Date: 30 December 1983
• Citation: 321 Pa.Super. 281,468 A.2d 479
• Parties: COMMONWEALTH of Pennsylvania v. Philip S. TOOMEY, Appellant.
• Court: Pennsylvania Superior Court

Page 479

468 A.2d 479

321 Pa.Super. 281

COMMONWEALTH of Pennsylvania v. Philip S. TOOMEY, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 26, 1983.

Filed Oct. 21, 1983.

Reargument Denied Dec. 30, 1983.

Richard Keith Renn, Asst. Public Defender, York, for appellant.

Sheryl Ann Dorney, First Asst. Dist. Atty., York, submitted a brief on behalf of Commonwealth, appellee.

Before WICKERSHAM, CIRILLO and WATKINS, JJ.

WICKERSHAM, Judge.

A York County jury returned verdicts of guilty on charges of burglary and theft against Philip S. Toomey in a trial before the Honorable Emanuel A. Cassimatis. The principle evidence against Toomey was presented by Oscar Buckingham who had been employed as a truck driver for one Richard Kinard for approximately six years. On July 18, 1980, he arrived at his place of work at about ten minutes before 6:00 a.m. He testified:

A. I arrived and got out of the car right in front of the office door and I laid my briefcase on the hood of the car to get my keys out to open the office door. I noticed there was somebody in the office. I opened the door up and, at that time, the defendant came out of the inner office with a T-shirt in his hand. He hit the door to the garage with his right shoulder.

....

A. I seen the office was, there was papers on the floor and the filing cabinet drawers were out of the filing cabinet.

....

Q. Now, when did you first recognize this individual?

A. When he came through the office door, the inner office door into the outer office.

Record at 3-5.

Buckingham further testified that he had known Philip Toomey when Toomey had been employed for about five months as a maintenance garage worker for Kinard Trucking. Record at 11. He definitely identified the person that he observed in the office that morning as Mr. Toomey. Record at 12. He described the office area as having boxes, papers, and filing drawers on the floor. He called the police and his employer. He testified that calculators and other office equipment were missing from the various desks and later were found in a box on the floor just inside the office door. Record at 12-14.

Ray Wells testified that he is terminal manager for Richard L. Kinard and that, on July 18, 1980, he came to the office building in response to a call from Mr. Buckingham. He testified that when he came into the office area, he found "the outside door was jimmied, broke open." Record at 20. He further testified that he found three calculators, a radio, and a bag full of change that came out of the Coke machine packed in a box. There was $101 missing from the cash box. Record at 21. Wells testified that when he left the terminal the preceding evening at 5:00 p.m., everything was in order and no one had permission to be in the office area at the time indicated. Record at 21-22.

Following Toomey's jury conviction, post-verdict motions were filed, briefed, and on August 3, 1981, denied. On September 18, 1981, Judge Cassimatis sentenced Philip S. Toomey to undergo imprisonment for a period of not less than six nor more than twelve months, to pay the costs of prosecution, and to make restitution. This direct appeal followed with trial counsel appearing as appellate counsel as well. One issue has been presented for our consideration, as follows:

Did the Lower Court err when it ruled that the Commonwealth could introduce Defendant's prior record of burglaries to impeach Defendant?

Brief for Appellant at 4.

During the trial of the instant case, the Commonwealth sought to prove six burglary convictions in 1977 against the defendant. An extended colloquy took place among counsel for the Commonwealth, counsel for the defendant, and the court. Record at 36-45. Judge Cassimatis considered the test set forth in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) where our supreme court held:

Although the statutory law of this jurisdiction expressly prohibits a defendant in a criminal case from being cross-examined as to other crimes he may have committed with two exceptions, ⁶ our decisional law has made it clear that the Commonwealth may introduce in rebuttal evidence of prior convictions to attack the credibility of a defendant who has elected to testify in his own behalf.

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, Pa. , 305 A.2d 715 (1973) (decided May 23, 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 and it is to that situation that we now address ourselves.

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.

. . . .

However, there are other factors in addition to the nature of the crime involved which may bear upon the probative value of a prior conviction. In Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), the United States Court of Appeals for the District of Columbia Circuit spelled out some of these factors and permitted trial courts to exercise discretion in determining whether or not to admit prior convictions to impeach credibility. See also, Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1269 (1969) and cases cited in the Appendix thereto.

Rather than make the admissibility of such evidence turn solely on the nature of the specific conviction, we agree with the approach advocated in Luck. Some of the considerations mentioned in Luck were: 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. 348 F.2d at 769. 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.

Id. at 562-567, 307 A.2d at 260, 262-63.

At the trial, Philip S. Toomey had taken the witness stand and testified that he was at a beer party given for his sister-in-law for her birthday. He said he arrived at the party around 10:00 o'clock in the evening on July 17, 1980 and that he was "drinking pretty heavy". Record at 49. He said that he left the party with his brother, sister-in-law, and Terry Schrum. He went to his brother's house, a block away. He did not wake up until the following morning "around dinner time." Record at 51. The defense called several other witnesses, including Terry Schrum, to support Toomey's alibi testimony.

During his direct testimony in defense, Philip Toomey admitted that he had "recently been charged with" six or eight burglaries in 1977 and that he plead guilty to those crimes. Record at 53-54. As of the time that Philip Toomey took the witness stand, Judge Cassimatis had already indicated that he would permit the Commonwealth to present the prior convictions in rebuttal.

Judge Cassimatis analyzed his ruling in the following language:

THE COURT: And, they're all in 1977 when the defendant was eighteen years of age?

MR. RENN: That's correct. The defendant is now twenty-two.

THE COURT: We hold that these prior offenses do reflect upon the varacity [sic] of the defendant witness. The second consideration is 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 providing a legitimate reason for discrediting him as an untruthful person.

Now, in this case, the charge is burglary, and, so, as I consider this factor, there is a tendency that this would attack the character of the defendant and suggest a propensity to commit the crime rather than to provide a legitimate reason for discrediting him as an untruthful person. If this were the only consideration we were to consider, we would not admit the prior convictions, but, as we understand this rule or law, it's just one of the several considerations and consideration No. 1 would lead us not to permit it.

However, for reasons before and hereafter stated, we believe that it should be admissible.

The third factor is the age and circumstances of the defendant. The defendant is now twenty-two years of age and these offenses occurred when he was eighteen. We do not view these ages as being significant one way or the other in terms of indicating we should or should not admit these prior convictions.

Fourth, which is one of the two mose [sic] significant factors we are considering, is 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 offense can be presented. It is already apparent from the testimony that has been introduced that the Commonwealth's only identification of the defendant as the person who committed the burglary...