Commonwealth v. Gordon

512 A.2d 1191, 355 Pa. Super. 25, 1986 Pa. Super. LEXIS 11259

• Court: Supreme Court of Pennsylvania
• Decided: July 2, 1986
• Docket: 03213
• Status: Published

Opinions

LIPEZ, Judge:

In a jury trial, defendant was convicted of two counts of robbery, and one count each of criminal conspiracy and prohibited offensive weapons. After denial of post-verdict motions, defendant was sentenced to concurrent terms of seven to twenty years on the robbery counts, with a concurrent one to two years for criminal conspiracy. In this appeal, defendant contends: (1) the trial judge abused his discretion under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), by allowing admission of his eight-year-old retail theft conviction and his seven-year-old robbery conviction for the purpose of impeaching his testimony; and (2) the trial judge also erred by allowing the admission of two twelve-year-old burglary convictions for the purpose of impeaching the testimony of one of defendant’s two alibi witnesses.

Defendant’s second contention can be summarily disposed of. When the Commonwealth seeks to use a prior conviction to impeach the testimony of a defense witness other than the defendant himself, the discretionary balancing test of Commonwealth v. Bighum, supra, does not apply, and the only relevant inquiry is whether the convictions were for crimes involving dishonesty or false statement. Commonwealth v. Pilosky, 239 Pa.Super.Ct. 233, 240, 362 A.2d 253, 257 (1976). Since burglary is a crime involving dishonesty or false statement, Commonwealth v. Gray, 329 Pa.Super.Ct. 347, 354, 478 A.2d 822, 825 (1984), the burglary convictions of the defense witness here were properly admitted to impeach his testimony. Commonwealth v. Pilosky, supra.

Defendant’s other claim, that the court erred in admitting his own retail theft and robbery convictions to impeach him, presents a closer question, but we agree with the Commonwealth that the trial judge’s decision to admit these convictions was within the range of his discretion as defined by the most recent case law interpreting the scope of Commonwealth v. Bighum, supra, and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).¹

Defendant relies primarily on Commonwealth v. Williams, 273 Pa.Super.Ct. 389, 417 A.2d 704 (1980), which held that it was erroneous to rule that the defendant’s four prior convictions would be admissible to impeach him in a trial for robbery, in which taking the stand himself was the defendant’s only potential means of defense. While there is some similarity to Williams in that one of defendant’s prior convictions is for the same crime (robbery) as the one for which he was being tried, we believe that defendant’s case is much more similar to Commonwealth v. Kearse, 326 Pa.Super.Ct. 1, 473 A.2d 577 (1984), which held that it was not an abuse of discretion to admit a five-year-old robbery conviction to impeach the defendant in a robbery trial, when the defendant had two alibi witnesses and the Commonwealth lacked a straightforward alternative means of attacking the defendant’s credibility.

Here, as in Kearse, the defendant presented two alibi witnesses, and only one prior robbery conviction (rather than four as in Williams) was involved. Defendant argues that his two alibi witnesses were uncertain of the date when they saw him, but this is identical to the situation in Commonwealth v. Kearse, supra, 326 Pa.Super.Ct. at 9, 473 A.2d at 581. Thus this case is unlike both Williams and Commonwealth v. Canada, 308 Pa.Super.Ct. 494, 454 A.2d 643 (1983), on which defendant also relies, because the defendants in those cases had no other means by which to defend themselves, a factor which Commonwealth v. Big-hum, supra, had characterized as “of critical importance.” Id., 452 Pa. at 567, 307 A.2d at 263.

While it is true that the seven-year-old robbery conviction here is a little older than the five-year-old conviction in Williams,² and defendant here also has an additional prior conviction for retail theft, these dissimilarities from Kearse are relatively minor, compared to the vital factors that the two cases have in common: that there was no series of prior convictions for the same type of crime, and — most important of all — that the defendant in each case had alternative means of defense through the presentation of alibi witnesses. Our review of all the Bighum factors convinces us that the court below did not abuse its discretion.

Judgment of sentence affirmed.

HESTER, J., dissents.

1 . The Commonwealth also argues that defendant’s failure to take the stand waived his Bighum claim under Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984), which held that an issue similar to a Bighum claim was waived under federal evidentiary law by failure to take the stand. Luce, however, involved only a matter of nonconstitutional federal law, and has no effect on the state evidentia-ry law formulated in Bighum. Furthermore, we cannot adopt the Luce approach as a matter of state law, for the reasons stated in Commonwealth v. Richardson, 347 Pa.Super.Ct. 564, 568-71, 500 A.2d 1200, 1203-04 (1985).

2 . See abo Commonwealth v. Dombrauskas, 274 Pa.Super.Ct. 452, 462, 418 A.2d 493, 498 (1980) (six-year-old robbery conviction not too remote in robbery trial).