Commonwealth v. Smith

552 A.2d 710, 380 Pa. Super. 611, 1989 Pa. Super. LEXIS 31
CourtSuperior Court of Pennsylvania
DecidedJanuary 13, 1989
DocketNo. 00653
StatusPublished

This text of 552 A.2d 710 (Commonwealth v. Smith) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Smith, 552 A.2d 710, 380 Pa. Super. 611, 1989 Pa. Super. LEXIS 31 (Pa. Ct. App. 1989).

Opinions

PER CURIAM:

This is a direct appeal from the judgment of sentence imposed upon the appellant after he was found guilty by a jury of perjury. Timely filed post-verdict motions were denied by the trial court and the appellant was sentenced to a term of imprisonment of two to four years and fined one hundred dollars. This appeal followed. For the reasons which follow, we are constrained to vacate the judgment of sentence and remand the matter for a new trial.

Before reaching the appellant’s argument, a review of the pertinent facts is necessary. The appellant and Leslie Neely, together with a third individual named Leonard Miller, hired a taxi on November 12, 1985. After the driver had taken them to their desired location, the driver was assaulted and robbed. An investigation, which included the appellant’s statement to the police identifying Miller as the robber, ultimately led to Miller being charged, tried, and convicted of the robbery. At the Miller trial, the appellant testified as a Commonwealth witness. In contradiction to his earlier statement, the appellant testified that Leslie Neely had committed the robbery. Subsequently, the appellant was arrested and charged with one count of penury in connection with his testimony at the Miller trial. It is the conviction of that charge which gives rise to the instant appeal.

At the appellant’s trial, the Commonwealth produced the testimony of the victim of the original robbery, George Masterson. He testified that while driving his taxi, he was hired by two black males and one black female. He drove the fares to an alley in the City of Harrisburg. There, as he was bending over to remove a package from the hatchback of the cab, he was struck on the back of the head by one of the passengers and robbed. The victim also testified [613]*613that both Leslie Neely and the appellant were considerably further away from him than was Miller at the time he was assaulted. Leslie Neely testified as to the commission of the robbery by Miller.

Also testifying at the appellant’s trial was the investigating officer. He testified that he interviewed the appellant in the course of his investigation and that the appellant stated that Miller had robbed the cab driver. The officer recounted the appellant’s testimony from the Miller trial, the basis for the perjury charge, by reading the pertinent portion of the transcript. On cross-examination, the officer read additional excerpts from the appellant’s testimony at the Miller trial. These excerpts included statements offered by the appellant to explain the difference between his testimony and the statement he had earlier provided to the police. The appellant maintained that his statement to the investigating officer was false because he did not want his child, then being carried by Leslie Neely, to be born in jail Thus, by implicating Leonard Miller, Neely was apparently able to retain her freedom and give birth. On redirect examination, and over defense counsel’s objection, the Commonwealth had the officer read those excerpts from the appellant’s testimony at the Miller trial wherein he acknowledged his prior criminal convictions of offenses in the nature of crimen falsi.1 This, he argues, was error.

The trial court reasoned that it approved the Commonwealth’s actions only after it had given permission for the appellant to have the officer read the excerpts wherein the appellant attempted to explain the contradiction. The trial court noted that before permitting the defense to introduce the excerpts of the appellant's attempted explanations, it cautioned the appellant that by doing so the Commonwealth would then have the right to introduce the excerpts of the transcript concerning the appellant’s prior convictions. The trial court wrote:

[614]*614The Court decided to permit the [testimony concerning the] prior convictions only after it had decided, over the Commonwealth’s objection, to admit defendant’s self serving testimony from the Leonard Miller trial____ To have permitted the introduction of defendant’s prior testimony under the assumption that the Commonwealth had an ample opportunity to cross examine that , testimony at a prior proceeding, but foreclose introduction of the primary cross examination of that prior proceeding would have denied the Commonwealth its right of cross examination.
Defendant was advised that the Court would allow the evidence of [his] prior convictions if he chose to place his credibility directly in issue by introducing his prior testimony from the Miller trial. Thus, he had the opportunity to avoid the introduction of the prior crimes evidenced by not introducing his own prior testimony.

Trial court opinion, at 14-15.

The trial court concluded that when a defendant places his credibility directly in issue through the introduction of his prior testimony from a former trial, the reasons for allowing evidence of prior crimes involving dishonesty are identical to those present in the situation where the defendant actually takes the stand and testifies. The trial court relied on the recent Supreme Court decision in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987) for support of its position.

There are two factors which negate the reasoning of the trial court and the applicability of Commonwealth v. Randall. First, the appellant was a witness, and not a criminal defendant, at the Miller trial; second, he did not testify at his own trial. In Commonwealth v. Randall, supra, the Supreme Court modified the rule governing the admissibility of a testifying defendant’s prior criminal history for the purpose of impeaching the defendant’s credibility. The thrust of the decision was to permit such evidence “if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of [615]*615confinement is within ten years of the trial date.” Id., 515 Pa. at 415, 528 A.2d at 1329. We do not read Commonwealth v. Randall, supra, as permitting the use of evidence of prior convictions as was done in this case. See, Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).

The importance of the distinction between the appellant’s status as a witness at the prior proceeding, and his status as a defendant in his own trial, cannot be understated. “If a witness is also the defendant in a criminal trial, additional protections attach when evidence of prior convictions is offered to impeach.” L. Packel & A. Poulin, Pennsylvania Evidence § 609.1 (1987). Generally, the credibility of any witness, other than an accused criminal defendant, is subject to being impeached either by cross-examination or introduction of competent evidence, of their prior convictions for crimes in the nature of crimen falsi. Commonwealth v. Eubanks, 511 Pa. 201, 512 A.2d 619 (1986); Commonwealth v. Gordon, 355 Pa.Super. 25, 512 A.2d 1191 (1986). The Supreme Court wrote:

Considerations which require that prior convictions be excluded from evidence

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Related

Commonwealth v. Sheaff
530 A.2d 480 (Supreme Court of Pennsylvania, 1987)
Commonwealth v. Bighum
307 A.2d 255 (Supreme Court of Pennsylvania, 1973)
Commonwealth v. Roots
393 A.2d 364 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Williams
538 A.2d 557 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Eubanks
512 A.2d 619 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Gordon
512 A.2d 1191 (Supreme Court of Pennsylvania, 1986)
Commonwealth v. Boyle
447 A.2d 250 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. McCabe
498 A.2d 933 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Randall
528 A.2d 1326 (Supreme Court of Pennsylvania, 1987)
Commonwealth v. Candia
428 A.2d 993 (Superior Court of Pennsylvania, 1981)
Commonwealth v. Allem
532 A.2d 845 (Supreme Court of Pennsylvania, 1987)

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Bluebook (online)
552 A.2d 710, 380 Pa. Super. 611, 1989 Pa. Super. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-smith-pasuperct-1989.