Com. v. Zapata

• Decision Date: 24 January 1974
• Parties: COMMONWEALTH of Pennsylvania v. Monserrate ZAPATA, Appellant.
• Court: Pennsylvania Supreme Court

Page 299

314 A.2d 299

455 Pa. 205

COMMONWEALTH of Pennsylvania v. Monserrate ZAPATA, Appellant.

Supreme Court of Pennsylvania.

Jan. 24, 1974.

[455 Pa. 206] Donald M. Moser, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

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

OPINION

JONES, Chief Justice.

On April 23, 1971, appellant was convicted by a jury of aggravated assault and battery and, following the denial of post-trial motions, was sentenced to a term of imprisonment of one to three years. On appeal, the Superior Court unanimously affirmed without opinion. ¹ We granted allocatur and this appeal followed.

At trial, the Commonwealth produced evidence which established that around midnight on May 22, 1970, the appellant administered a severe, unprovoked beating to one Miguel Vergara. ² In response, appellant's testimony indicated that Vergara had been the attacker and that he (appellant) had only struck Vergara four times in self-defense.

Appellant has raised a very interesting question regarding alleged ineffective assistance of counsel at trial. Specifically, he charges that counsel's conduct in revealing his client's two prior convictions for voluntary manslaughter on direct examination constitutes manifest ineffectiveness. Appellant argues that, because these convictions mentioned arose out of crimes committed Subsequent to the instant offense and because sentence had not yet been imposed on those convictions, they were not admissible for any purpose. Consequently, it is urged that counsel had no reasonable basis for his decision to bring this evidence out on direct examination.

In order to evaluate appellant's claim of ineffective assistance of counsel, it is necessary to first examine the alternatives which were open to counsel at trial and the course chosen. If, upon such examination, we find that counsel had a 'reasonable basis' for his action, we will not find ineffectiveness as a matter of law. Com. ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 352 (1967). Conversely, if no reasonable basis is evident, we must find that appellant was denied his constitutional right to effective assistance of counsel. 427 Pa. at 611, 235 A.2d at 356.

Even where its use is properly limited to impeaching credibility, the introduction of a defendant's criminal record possesses a potential for severe prejudicial impact on a jury. Thus, there would rarely be a time when the introduction of such evidence would produce some result favorable to the defendant. Nevertheless, there may be situations where a defense attorney is substantially certain that the prosecution will utilize a defendant's prior convictions if he decides to testify. In those situations, it may be reasonable trial strategy for the defense counsel to bring those convictions out on direct examination in order to minimize their impact, thus muting the prosecution's thunder. Before doing so, however, counsel should be convinced that such evidence is available to the prosecution, I.e., that the convictions would properly be admissible to impeach the defendant's credibility. In the absence of such certainty, counsel would be acting 'ineffectively' if he introduced an aspect of his client's criminal record which was, in fact, not competent evidence. Thus, our present inquiry must focus on whether counsel for the appellant justifiably believed that the record of these convictions was admissible.

Appellant's first point-that the convictions were inadmissible because they related to crimes committed subsequent to the charge being tried-cannot be accepted as an absolute principle of law. He relies principally on our decision in Commonwealth v. McIntyre, 417 Pa. 415, 208 A.2d 257 (1965), wherein we held that the introduction of the defendant's convictions for crimes committed subsequent to the charge being tried was reversible error. What appellant fails to note, however, is that in McIntyre we Specifically limited our holding to the 'particular . . . facts and circumstances of (that) case.' 417 Pa. at 922, 208 A.2d at 261. The factual posture therein involved included the trying of Less serious but subsequently committed charges prior to the trying of the More serious offense, which in that case was murder. Thus, our concern in McIntyre was the potential danger of calendar juggling to create a record prior to trying the more serious offense. 417 Pa. at 422, 423 n. 14, 208 A.2d at 261 n. 14. This restricted reading of McIntyre is supported by the Superior Court's decision in Commonwealth v. Conard, 206 Pa.Super. 33, 211 A.2d 14 (1965) cited with approval by this Court in Commonwealth v. Richardson, 433 Pa. 195, 201, 249 A.2d 307, 310 (1969). In Conard, Judge Jacobs distinguished McIntyre in this manner:

'This is not a capital case and there is no indication of court calendar manipulation. . . . Inasmuch as the Supreme Court, in McIntyre, did not abrogate the general rule in Pennsylvania permitting defendant's testimony to be impeached by showing prior convictions of felonies, we are of the opinion that the prior convictions admitted into evidence in this case fall under the general rule rather than the exception enunciated in the McIntyre case. The credibility of the witness is being attacked as of the time of the trial not as of the time of the commission of the offense for which he is being tried.' 206 Pa.Super. at 39, 211 A.2d at 17--18. (Emphasis added.)

Subsequently, in Richardson, this Court distinguished McIntyre in a similar manner:

'In McIntyre, we were concerned about the possibility that the Commonwealth might arrange the order of the defendant's trials for the purpose of creating a record. In this case there is no evidence that the Commonwealth was attempting to create such a record. Appellant was indicted in Philadelphia for the felonies and in Delaware County for the murder in the same month. Trial was delayed in Delaware County because appellant moved for a change in venue. Therefore, there does not appear to be anything sinister in the fact that appellant was tried in Philadelphia on the felony charges and then tried for murder in Delaware County. We have studied the record and do not find that appellant was denied dur process by the introduction of the record of his convictions in Philadelphia at his murder trial.'

433 Pa. at 201, 249 A.2d at 310. In the present case, as in Richardson, there is no indication of calendar manipulation to create a record. The more serious offenses were tried first, thus negating any attempt to 'build up' a record. Hence, the appellant's prior convictions were not barred from admissibility under the McIntyre rationale and we cannot therefore characterize counsel's representation as 'ineffective' on That basis.

Appellant, however, raises another problem with the criminal record involved here, namely that a sentence had not been imposed for the manslaughter offenses at the time they were introduced in this case. Appellant argues on the authority of Commonwealth v. Finkelstein, 191 Pa.Super. 328, 156 A.2d 888 (1959), that such convictions are inadmissible, even for impeachment purposes. The Commonwealth does not contest appellant's...