Commonwealth v. Randall

528 A.2d 1326, 515 Pa. 410, 1987 Pa. LEXIS 755

Opinions

OPINION

Footnotes

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McDERMOTT, Justice.

This appeal is from the order of the Superior Court reversing the judgment of sentence entered by the Court of Common Pleas of Berks County, and awarding appellee a new trial. The basic facts of this case are not disputed.

Appellee, Edward Charles Randall, Sr., was tried for murder and possession of an instrument of crime as a result of a 1981 shooting at a Reading social club. At trial the Commonwealth’s case-in-chief depended upon two eyewitnesses to the shooting. They testified that appellee and the victim had an argument, that after this argument appellee left the club only to return, at which time another argument took place culminating in the shooting of the victim.

In his defense appellee did not deny the shooting, but contended that the shooting was justified because he believed the victim was armed, and because the victim had threatened him with a gun during their first argument.

On rebuttal the Commonwealth introduced the evidence which is the subject of the present appeal, i.e., testimony attesting to appellee’s prior conviction for burglary which had occurred six years before the present offense. The purpose of this rebuttal evidence was to call into question appellee’s credibility.

This evidence was objected to by trial counsel, but the trial judge, after duly considering the required factors, admitted the evidence. The jury returned a verdict of guilty as to third degree murder, and guilty of possession of an instrument of crime. On appeal the Superior Court reversed, and remanded the case for a new trial.

In reversing, the Superior Court held that the trial court erred in admitting the rebuttal testimony. The Commonwealth sought allowance of appeal which was granted. We now reverse.

As is obvious from the above history the issue in this case concerns the use of prior convictions for the purpose of impeaching a defendant who testifies on his own behalf. We have addressed this issue a number of times before, most notably in the cases of Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).

In Commonwealth v. Bighum, supra, this court limited the admissibility of prior convictions to “crimes involving dishonesty or false statement.” Id., 452 Pa. at 566, 307 A.2d at 262. Then, in reliance upon a federal circuit court decision,¹ the Court declared that certain “considerations” should be taken into account before admitting evidence of prior convictions. Those considerations 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.

Id., 452 Pa. at 567, 307 A.2d at 263 (citations omitted).

Later, in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), this Court expanded upon Bighum. The Court stated:

In making the determination as to the admissibility of a prior conviction for impeachment purposes, the trial court should consider: (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.

Although this Court in Roots mandated that the Bighum factors were to be considered, the Court left the ultimate decision as to admissibility within the discretion of the trial judge. Unfortunately, the grant of that decision making ability has proven illusory, for we continually have cases like the present where an appellate court acting on a cold record concludes that the trial judge’s on-the-spot judgment was wrong. See Commonwealth v. Tangle, 349 Pa.Super. 574, 504 A.2d 193 (1986) allocatur granted 511 Pa. 364, 513 A.2d 1381 (1986). Commonwealth v. Canada, 308 Pa.Super. 494, 454 A.2d 643 (1983); Commonwealth v. Williams, 286 Pa.Super. 444, 429 A.2d 22 (1981); Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980); Commonwealth v. Phillips, 272 Pa.Super. 16, 414 A.2d 646 (1979); Commonwealth v. Cobb, 258 Pa.Super. 91, 392 A.2d 698 (1978); Commonwealth v. Sampson, 250 Pa.Super. 157, 378 A.2d 874 (1977). Thus we think some re-evaluation is necessary.

In Bighum and Roots this Court attempted to accommodate the needs of the Commonwealth to fully expose witnesses to the view of the jury, while at the same time protecting the defendant from a finding of guilt based solely on a prior history. It was the obvious desire of the Court to provide some objective criteria for determining the admissibility of prior convictions. However, that criteria has proven less than exact, and has done more to engender appeals than to guide courts and litigants. Therefore, the time has come to revise Bighum and Roots in favor of more concrete guidelines for the admission of prior conviction evidence.

Under the Federal Rules of Evidence a prior conviction is per se admissible for the purpose of attacking credibility if the conviction “involved dishonesty or false statement.” F.R.E. 609(a)(1)(2). The only exception to this rule is where “a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect.” F.R.E. 609(b).

We believe that by adopting this rule we can still accommodate the competing interests of full disclosure and fairness to the defendant, while at the same time affording more certainty to the litigants and courts below. In addition we note that the vitality of Bighum and Roots will not be totally extinguished, as the considerations therein will be relevant in determining whether convictions which fall in the exception category are admissible.

Therefore, while we do not adopt the federal rule per se we do modify our current rule to the following extent: evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Applying that rule to the case at hand, the evidence of Mr. Randall’s prior conviction is clearly admissible.

Hence, the order of the Superior Court is reversed.

NIX, C.J., files a dissenting opinion in which ZAPPALA, J., joins. ZAPPALA, J., files a dissenting opinion in which NIX, C.J., joins.

This opinion was assigned to this author on January 28, 1987.

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. Luck v. United States, 348 F.2d 763 (D.C.Cir.1965).