Commonwealth of Pa. v. Hoover

• Decision Date: 07 March 2011
• Citation: 16 A.3d 1148,2011 PA Super 42
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.John HOOVER, Appellant.
• Court: Pennsylvania Superior Court

16 A.3d 1148

2011 PA Super 42

COMMONWEALTH of Pennsylvania, Appellee

v.John HOOVER, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 26, 2011.Filed March 7, 2011.

Michael R. Hadley, Oil City, for appellant.BEFORE: ALLEN, OLSON and COLVILLE ^*, JJ.OPINION BY COLVILLE, J.:

This case is a direct appeal from the judgment of sentence imposed after Appellant's conviction for, inter alia, driving under the influence of alcohol (“DUI”). The issue is whether the trial court erred when it ruled the Commonwealth would be allowed to cross examine Appellant's character witnesses by questioning them as to their knowledge of his prior DUI arrest and/or his participation in an Accelerated Rehabilitative Disposition (“ARD”) program with respect to the prior DUI case. We vacate the judgment of sentence, reverse the court's aforesaid ruling, and remand this case for proceedings consistent herewith.

Appellant was charged with DUI and related offenses. As part of his defense, he intended to call character witnesses to testify to his reputation for being law abiding. Prior to trial, he filed a motion in limine to preclude the Commonwealth from asking those witnesses about their knowledge of his previous DUI arrest and/or his ARD participation. The trial court denied the motion. As a result of this ruling, Appellant decided not to present the character witnesses.

At trial, the Commonwealth adduced testimony that police followed Appellant for some distance along a road as he drove at thirty to forty-five miles per hour. Appellant crossed the center line of the road three or four times, doing so on each occasion to a distance of approximately one foot. He similarly crossed the fog line four times. Eventually, police activated their overhead lights. Appellant pulled his vehicle off the road, stopping in the lot of a gas station.

When police approached the vehicle and requested Appellant's license, he exhibited signs of intoxication, including slurred speech, bloodshot eyes and the smell of alcohol. He fumbled with his license but apparently did provide it. Upon being asked, he indicated he had been drinking and had come from a certain tavern. Thereafter, he engaged in one or more field sobriety tests but failed that testing. Appellant was arrested. Lab tests would later reveal his blood alcohol content (“BAC”) was 0.382%. Appellant was eventually convicted by a jury of two DUI counts—general impairment under 75 Pa.C.S.A. § 3802(a)(1) and having a BAC equal to or greater than 0.16% under 75 Pa.C.S.A. § 3802(c). The court convicted Appellant of summary vehicle offenses. Appellant was sentenced and then filed this appeal. He challenges the trial court's pretrial order denying his aforesaid motion in limine.

In a criminal case, the accused may offer witnesses to testify to the accused's relevant character traits. Pa.R.E. 404(a)(1). The Commonwealth may, of course, attempt to impeach those witnesses. Commonwealth v. Morgan, 559 Pa. 248, 739 A.2d 1033, 1035 (1999). For example, when cross examining character witnesses offered by the accused, the Commonwealth may test the witnesses' knowledge about specific instances of conduct of the accused where those instances are probative of the traits in question. Pa.R.E. 405(a). However, the Commonwealth may not question the witnesses about allegations of other criminal misconduct by the accused where those allegations did not result in a conviction. Morgan, 739 A.2d at 1035–36 (holding it is improper to cross examine character witnesses with respect to their knowledge of uncharged criminal allegations against defendant); Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607, 611–12 (1981) (holding it is improper to cross examine character witnesses with respect to their knowledge of defendant's arrests not leading to convictions); Pa.R.E. 405(a). Participation in an ARD program is not a conviction for impeachment purposes. Commonwealth v. Brown, 449 Pa.Super. 346, 673 A.2d 975, 978–79 (1996).

The scope of cross examination is a matter within the trial court's discretion and will not be disturbed by this Court absent an abuse of that discretion. Morgan, 739 A.2d at 1035. An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law. Commonwealth v. Bradford, 2 A.3d 628, 632–33 (Pa.Super.2010).

Appellant's participation in an ARD program was not a conviction for impeachment purposes. Thus, the trial court erred when it ruled the Commonwealth would be permitted to cross examine Appellant's character witnesses by questioning them as to their knowledge of his prior DUI arrest and/or his ARD participation relating thereto.

We understand the trial court relied on Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), a case in which a panel of this Court allowed the defendant's participation in an ARD program to be used for impeachment purposes. However, as this Court made clear in 1996, the Bowser opinion overlooked numerous cases holding that ARD participation is not a conviction and may not be used to impeach witnesses. Brown, 673 A.2d at 979. Thus, in Brown, we reiterated the well-established prohibition against using a defendant's admission into an ARD program to attack the credibility of witnesses. Id. at 978–79.

In sum, then, the trial court's order denying Appellant's pretrial motion in limine was legally erroneous and, as such, constituted an abuse of discretion. Moreover, we cannot call this error harmless. An error is harmless where the uncontradicted evidence of guilt is so overwhelming that, by comparison, the error is insignificant. Commonwealth v. Schoff, 911 A.2d 147, 157 (Pa.Super.2006). When discussing harmless error, we have also stated that the Commonwealth can meet its burden of showing harmlessness by persuading us the error did not prejudice the appellant or did so to a de minimis extent, and/or by persuading us the properly admitted and...