Commonwealth v. Kearse
| Decision Date | 02 March 1984 |
| Citation | 326 Pa.Super. 1,473 A.2d 577 |
| Parties | COMMONWEALTH of Pennsylvania v. John Elwood KEARSE, Jr., Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Nov. 7, 1983.
John G. Bergdoll, III, York, for appellant.
Floyd Paul Jones, Asst. Dist. Atty., York, for Commonwealth appellee.
Before McEWEN, JOHNSON and POPOVICH, JJ.
After a jury had by verdict determined that appellant was guilty of robbery and trial counsel had filed post-verdict motions, the trial court, upon the pro se petition of appellant, appointed new counsel who filed amended motions for a new trial and in arrest of judgment which included allegations of ineffectiveness of trial counsel. Following the denial of these motions, appellant was sentenced to a term of imprisonment of from four and one-half years to nine years. This direct appeal followed. We affirm.
Appellant contends that (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred in refusing to charge the jury that they could find appellant guilty of theft only; and (3) the trial court erred in ruling that a prior conviction could be used to impeach his credibility. Appellant also contends that trial counsel was ineffective for (1) failing to file pre-trial motions to suppress identification evidence; (2) failing to request a pre-trial line-up; and (3) failing to object when an expert witness allegedly testified beyond the scope of his expertise. The distinguished Judge John F. Rauhauser, Jr., in his opinion denying the post-trial motions, has so ably discussed these claims of error that we only address the contention that the trial court erred in ruling that the prior conviction of appellant in 1976 was admissible to impeach his credibility.
Rutter's Farm Store, located in York, Pennsylvania, was robbed on the afternoon of July 13, 1981. The manager of the store testified that the robbery was perpetrated by a black male who approached the register area, placed a bag of Purina dog food on the counter and grabbed him from behind, holding what seemed to be a gun against his back. [1] When the robber ordered the manager to remove the cash from the register, he handed approximately $89.00 to his assailant, who then fled on foot. The Commonwealth produced testimony from a Pennsylvania State Police Trooper that a number of fingerprints found on the dog food bag that had been left on the counter belonged to appellant. [2] Although the store manager was unable to positively identify appellant from an array of eight photographs, he was able to identify appellant at both the preliminary hearing and at trial.
Appellant defended by the presentation of an alibi defense. Two defense witnesses, a roommate and another acquaintance of appellant testified that appellant was home sick one day in July, but neither witness was able to recall the exact date of that illness. The acquaintance, although unable to state with certainty if the afternoon he spent with appellant was July 13, 1981, testified that he had visited appellant on the day that he was ill and had spent the major portion of the afternoon with appellant. Appellant, himself, testified that he had been home sick on the afternoon of the robbery and that he had not only purchased dog food two days prior to the robbery from Rutter's Farm Store, but had also on that occasion handled a number of bags on the shelf. Appellant further stated on direct examination that he recalled the date of his illness and knew it to be July 13, 1981, the date of the robbery. It was not until after the assistant district attorney had cross examined appellant upon his alibi, his illness and his explanation of the presence of his fingerprints on the dog food bag that defense counsel requested at side bar a determination of whether the Commonwealth could on rebuttal introduce evidence of the prior conviction of appellant. After the presentation of argument by both counsel on the admissibility of the prior conviction for the limited "purpose of questioning the credibility of [appellant] as a witness", the trial judge ruled:
[I]t seems to me that the question of credibility is one of particular importance.... [T]he defendant does have witnesses and did produce them and, really, the only witness the Commonwealth has here is the identification of the eyewitness who was the victim of this particular incident and his testimony on cross examination has been attacked as to credibility and reliability.
Therefore, under all the circumstances, the court will permit the introduction of this record as has been identified for the sole purpose of questioning the credibility and we will give appropriate instructions to the jury to that effect. (N.T. 93-94).
The Commonwealth did not, however, resort to the introduction of rebuttal evidence of the prior conviction since the ruling caused defense counsel to undertake the redirect examination of appellant which included the following interrogation [3] :
Q. Back in 1976, do you remember pleading guilty to something?
A. Yes.
Q. That was robbery.
A. Yes. They had it down to theft.
Q. You pled guilty?
A. Yes.
Q. You stood in front of the Court and told them that you were wrong?
A. Yes.
Q. You served your time?
A. Yes.
Q. And, that was for burglary as well. Is that right?
A. Yes.
Q. And you admitted you were wrong at that time?
A. Yes.
(N.T. 97).
Appellant argues that the trial court committed reversible error in admitting his prior conviction for impeachment purposes since (1) he was the only witness who could provide testimony necessary to establish his alibi defense; (2) the Commonwealth could and did impeach his testimony with a prior inconsistent statement [4] ; (3) the case of the Commonwealth against appellant was substantial; and (4) the prior conviction was for the same crime and highly prejudicial.
The admissibility of evidence of prior convictions for the impeachment of a defendant-witness is within the sound discretion of the trial judge, whose decision thereon will not be reversed absent an abuse of discretion. Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Canada, 308 Pa.Super. 494, 454 A.2d 643 (1983); Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980). The exercise of this discretion requires the trial judge to determine whether the probative value of the evidence of other convictions as it bears upon the credibility of an accused as a witness outweighs the prejudicial effect that such evidence has upon the jury. Commonwealth v. Roots, supra 482 Pa. at 41, 393 A.2d at 368; Commonwealth v. Bighum, 452 Pa. 554, 565 n. 7, 307 A.2d 255, 262 n. 7 (1973); Commonwealth v. Williams, supra 273 Pa.Super. at 393, 417 A.2d at 706. When the court engages in a proper counterbalancing of the competing considerations in this determination, it is of "critical importance" that the evidence be excluded when it appears that "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." Commonwealth v. Bighum, supra 452 Pa. at 567, 307 A.2d at 263.
The eminent, now Pennsylvania Supreme Court Chief Justice Robert N.C. Nix, Jr., in Commonwealth v. Roots, supra, articulated a "balancing equation" which includes five basic considerations that should be weighed in the determination of whether to admit evidence of prior convictions for impeachment purposes:
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 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.
Id. 482 Pa. at 39-40, 393 A.2d at 367 (footnote omitted). Accord Commonwealth v. Henderson, 497 Pa. 23, 35, 438 A.2d 951, 957 (1981); Commonwealth v. Bighum, supra 452 Pa. at 557, 307 A.2d at 263; Commonwealth v. Zabala, 310 Pa.Super. 301, ----, 456 A.2d 622, 631 (1983); Commonwealth v. Williams, supra 373 Pa.Super. at 392, 417 A.2d at 705. "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." Commonwealth v. Roots, supra 482 Pa. at 39, 393 A.2d at 367. See also Commonwealth v. Canada, supra 308 Pa.Super. at 496, 454 A.2d at 644. The burden of proof, of course, is upon the Commonwealth to show that the need for this evidence overcomes its inherent potential for prejudice. Commonwealth v. Roots, supra 482 Pa. at 41, 393 A.2d at 368; Commonwealth v. Williams, supra 373 Pa.Super. at 392, 417 A.2d at 705.
The first of the Roots criteria--that the prior conviction reflect upon the veracity of appellant as a witness--is positive for admission since the conviction involved was undeniably crimen falsi. Commonwealth v. Henderson, supra 497 Pa. at 35, 438 A.2d at 957; Commonwealth v. Zabala, supra 310 Pa.Super. at ----, 456 A.2d at 632.
The nature and extent of the prior record of appellant was not such that it would have had a greater tendency to smear the character of appellant and suggest his propensity to commit the crime with which he had been charged than...
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