[J-88-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 18 WAP 2014
:
Appellant : Appeal from the Order of the Superior
: Court dated December 13, 2013 at No. 55
: WDA 2013, vacating the judgment of
v. : sentence of the Court of Common Pleas of
: Clearfield County dated December 4,
: 2012 at CP-17-CR-0000541-2012, and
JASON LEE HOOVER, : remanding.
:
Appellee :
: ARGUED: October 7, 2014
OPINION
MR. CHIEF JUSTICE CASTILLE DECIDED: DECEMBER 30, 2014
The Commonwealth appeals from a Superior Court Order vacating appellee’s
judgment of sentence for theft by unlawful taking, receiving stolen property, criminal
conspiracy, and corruption of minors,1 and remanding for a new trial. The Superior
Court panel concluded that the trial court abused its discretion in determining that the
probative value of appellee’s prior crime of dishonesty (crimen falsi) substantially
outweighed its prejudicial effect. For the following reasons, we reverse the order below
and remand for the Superior Court to consider appellee’s remaining claim regarding
appellee’s proposed alibi testimony.
1
18 Pa.C.S. §§ 3921(a), 3925(a), 903(a)(1), and 6301(a)(1)(i), respectively.
I.
On April 20, 2012, the Commonwealth filed a criminal complaint against appellee
alleging that on April 4, 2012, appellee and two co-conspirators, Barry Martell and D.M.,
a juvenile, stole parts and equipment from RES Coal Company in Goshen Township,
Clearfield County, and later sold the stolen parts to a local salvage yard. On October 4,
2012, appellee filed a motion in limine seeking to preclude the Commonwealth from
impeaching him with evidence of his 1998 crimen falsi conviction which resulted from
appellee’s guilty plea, at twenty-two years of age, to a single third-degree felony count
of receiving stolen property. Acknowledging the specific list of five factors reiterated by
this Court in Commonwealth v. Randall, 528 A.2d 1326 (Pa. 1987), to be considered in
determining whether remote crimen falsi adjudications -- i.e., those that are more than
ten years old -- are admissible as more probative than prejudicial, the trial court found
that the balance of those factors weighed in favor of admitting appellee’s single crimen
falsi conviction for impeachment purposes. Specifically, the trial court considered:
(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. at 1328 (quoting Commonwealth v. Roots, 393 A.2d 364, 367 (Pa. 1978), abrogated
in part as stated in Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009)). The trial court
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determined that factors one, three, four, and five weighed in favor of the
Commonwealth, enhancing the probative value of appellee’s crimen falsi conviction,
while only the second factor weighed in appellee’s favor, increasing the potential
improper prejudicial impact of appellee’s prior conviction. With this analysis, the trial
court denied appellee’s motion in limine.
At trial, D.M., testifying for the Commonwealth, stated that appellee was involved
in the theft and that D.M., Martell and appellee had all agreed to steal the items and sell
them for cash. Appellee then took the stand in his own defense in support of a claim of
total innocence, stating that he was unaware of the theft, and that Martell and D.M. stole
the items without his knowledge or participation. At the close of his testimony, and in
the presence of the jury, the prosecutor asked the trial court to take judicial notice of
appellee’s prior crimen falsi conviction. N.T., 10/22/12, at 201.2
Thereafter, the parties proceeded immediately to closing arguments. Appellee’s
counsel did not address appellee’s prior crimen falsi conviction during his closing, but
instead, counsel vigorously attacked D.M.’s credibility, employing no unusual points of
impeachment. Thus, counsel argued that D.M. was not telling the truth, that his
testimony was from a corrupt and polluted source, and that it should be received with
great caution because D.M. had an interest in the outcome of the case, having admitted
to being a thief and being involved in the crime at issue. Id. at 206, 210. In a similar
attempt to persuade the jury not to accept appellee’s testimony, the prosecutor made
use of appellee’s prior conviction in his closing argument as follows:
I argue to you that, you know, who’s telling the truth
and who’s being factually correct and honest with you people
2
There is no issue before the Court respecting the manner by which the prior conviction
was introduced.
[J-88-2014] - 3
is an issue for [you to] decide, but after the [C]ommonwealth
-- or, after the defendant testified, the [C]ommonwealth
introduced a prior conviction of the defendant for a crime
called receiving stolen property.
And I offered that, or am allowed to offer that, to you
because receiving stolen property’s called a crimen falsi, a
crime of dishonesty. So I don’t say, hey, the defendant was
convicted of receiving stolen property in the past; therefore,
he must have done it this time. I say to you that the
defendant was convicted in the past of a crime of dishonesty
so, therefore, you can consider that when you decide who’s
telling the truth, who’s being honest or dishonest.
Id. at 232. Appellee lodged no objection to the prosecutor’s argument.
Immediately following closing arguments, the court issued its jury instructions,
which included its instruction regarding the treatment of appellee’s prior crimen falsi
conviction. The court stated:
Now, there was evidence here tending to show that
the defendant has a prior criminal conviction. And I'm talking
about the record introduced by the [C]ommonwealth as to
his prior conviction of receiving stolen property, all right.
Note that this evidence about that prior conviction
from 1998 is not evidence of the defendant’s guilt. You must
not infer guilt from the evidence of that prior conviction. This
evidence may be considered by you for one purpose only.
That is, to help you judge the credibility and weight of the
testimony given by the defendant as a witness in this trial.
So in considering the evidence of that prior conviction,
you may consider the type of crime committed and how long
ago it was committed, and how it may affect the likelihood
that the defendant has testified truthfully in this case.
Id. at 246-47. Neither party objected to this instruction.
Following trial, the jury found appellee guilty of theft by unlawful taking, receiving
stolen property, criminal conspiracy and corruption of minors. The trial court later
[J-88-2014] - 4
sentenced appellee to an aggregate term of twenty-one to sixty months of
imprisonment, and appellee appealed to the Superior Court.
On appeal, appellee raised two evidentiary issues: he claimed that the trial court
abused its discretion in admitting his prior crimen falsi conviction, and in prohibiting the
testimony of appellee’s alibi witness. Addressing the crimen falsi issue, the Superior
Court panel, in an unpublished decision, reweighed the five factors addressed in
Randall, and vacated the judgment of sentence and remanded the matter for a new trial.
Given its disposition, the panel did not reach the issue of appellee’s alibi witness. On
the Randall question, the panel agreed with the trial court that factors one, four and five
weighed in favor of the Commonwealth, i.e., in favor of admissibility, but took issue with
the trial court’s weighing of factors two and three. Regarding the third factor -- the
defendant’s age and circumstances -- the panel found that commission of a crimen falsi
at the age of twenty-two could not be held against appellee, and therefore this factor
was neutral, instead of weighing in favor of the Commonwealth as the trial court had
concluded. And finally, with respect to the second factor -- the likelihood of the
defendant’s record having a greater tendency to prejudice the defendant by showing a
criminal propensity rather than to discredit -- the panel disagreed that this factor merely
weighed in favor of appellee, but insisted instead that it weighed heavily in appellee’s
favor, indeed to the extent of “extreme prejudice.” Super. Ct. Slip Op. at 14. Based on
the panel’s disagreement with the trial court regarding these two out of the five relevant
factors, the panel concluded that the trial court abused its discretion in admitting
evidence of appellee’s prior crimen falsi conviction. We granted the Commonwealth’s
petition for allowance of appeal.
[J-88-2014] - 5
II.
In support of the trial court’s discretionary evidentiary ruling, the Commonwealth
argues that the admission of appellee’s prior conviction was proper according to the
relevant five-factor analysis set forth by this Court in Randall. The Commonwealth
contends that the sole purpose of admitting the prior conviction was to impeach
appellee’s credibility since he took the stand as a witness in his own defense, and his
testimony, claiming non-involvement, was the only direct evidence of such non-
involvement, and the testimony of the lone eyewitness presented by the Commonwealth
directly contradicted appellee’s account. While the parties and the lower courts agree
that the first Randall factor -- the degree to which the prior conviction reflects on veracity
-- favors admissibility since the prior offense was crimen falsi in nature, the
Commonwealth argues that the second factor -- the likelihood of a greater tendency that
the criminal record will prejudice the defendant by showing criminal propensity -- should
not weigh as heavily as the Superior Court panel weighed it in favor of appellee. The
Commonwealth does not contest that there was a potential for prejudice to appellee, but
maintains that the test is whether the prejudice is outweighed by probative value, and in
the Commonwealth’s view, the remaining factors reveal the probative value of the prior
offense in the instant matter.
Moreover, the Commonwealth insists that the likelihood of improper prejudice
was low in this case because the prosecutor’s references to the prior offense were few
and brief, and because the prosecutor specifically argued to the jury that the crime was
relevant only to assess appellee’s truthfulness on the stand, and not to show his
criminal propensity. The Commonwealth further notes that the single prior offense at
issue would have less of a tendency to cause an unfair prejudicial effect than was
present in several other Pennsylvania reported decisions where multiple prior offenses
[J-88-2014] - 6
were deemed admissible for purposes of impeachment, despite the potential to suggest
criminal propensity. See, e.g., Rivera, 983 A.2d at 1228 (“we conclude that the trial
court acted within its discretion in determining that Appellant’s [five] previous crimen
falsi adjudications were more probative than prejudicial.”).
Further addressing the third factor, the Commonwealth argues that a twenty-two-
year old individual should be regarded as responsible and accountable for his actions,
and that appellee’s age at the time of his prior crime should not be regarded as lowering
the probative value of the evidence in this case, but should actually weigh in favor of
admissibility. In support of this argument, the Commonwealth again cites Rivera, where
this Court concluded that the trial court acted within its discretion in determining that
juvenile adjudications involving crimen falsi were more probative than prejudicial. And,
with regard to factors four (strength of case) and five (existence of alternate means of
impeachment), the Commonwealth explains that this case came down to a credibility
determination between appellee and the Commonwealth’s chief witness -- two accused
criminal confederates -- who had starkly different versions of the events, and therefore
appellee’s prior conviction was essential to the Commonwealth’s case. Along these
lines, the Commonwealth notes that there was no other direct impeachment evidence
available to the government. Thus, the Commonwealth maintains that the trial court did
not abuse its discretion in allowing the Commonwealth to introduce, and then make
reference to, the single prior crimen falsi for impeachment purposes only.
In response, rather than make a specific argument as to how the trial court might
have abused its discretion, appellee insists that:
[T]he only issue before this Honorable Court is whether the
probative value of [appellee’s] 1998 Receiving Stolen
Property conviction substantially outweighs the prejudicial
effect after [appellee] testified he did not steal, did not
[J-88-2014] - 7
receive stolen property and did not conspire with others to
steal property.
Appellee’s Brief at 4. According to this framing of the issue before this Court, the bulk of
appellee’s argument concerns the proper weighing of the prejudicial effect and
probative value of his prior crimen falsi conviction. Appellee thus focuses his attention
on the second factor of the five-factor analysis -- the likelihood of a greater tendency of
the defendant’s criminal record to smear him by showing his criminal propensity.
Appellee then attempts to support the panel’s reweighing of this factor by looking
primarily to caselaw from outside of this Commonwealth and other Superior Court
precedent to make the point that evidence of a prior conviction for the very same crime
for which a defendant is being tried contains an inherent suggestion of criminal
propensity. Appellee maintains that since the evidence against him was not
overwhelming, the admission of the prior offense in this instance was particularly
damaging and prejudicial. Appellee concedes that the credibility determination was the
central issue at trial. Nonetheless, appellee discounts precedent relied upon by the trial
court for the proposition that the need to introduce evidence of prior crimen falsi
convictions is high where the jury must decide whether to believe a single
Commonwealth witness or a single defense witness in order to reach a verdict.
Appellee’s Brief at 8 (citing Commonwealth v. Palo, 24 A.3d 1050 (Pa. Super. 2011)).
Appellee makes no attempt to support the panel’s holding regarding the third
factor, i.e., that a crime by a twenty-two year old ought not to be used against him
thereafter because of his age. Notwithstanding, appellee insists that the Superior
Court’s ruling should be affirmed because the probative value of his prior crimen falsi
conviction did not substantially outweigh its potential prejudicial effect.
[J-88-2014] - 8
III.
We hold that the Superior Court panel’s decision cannot stand, because the
panel paid insufficient deference to the discretionary decision of the trial court, and is
not otherwise supported by Pennsylvania law. “When reviewing the denial of a motion
in limine, this Court applies an evidentiary abuse of discretion standard of review. . . . It
is well-established that the admissibility of evidence is within the discretion of the trial
court, and such rulings will not form the basis for appellate relief absent an abuse of
discretion.” Rivera, 983 A.2d at 1228 (citation and quotation marks omitted). Thus, the
Superior Court may reverse an evidentiary ruling only upon a showing that the trial court
abused that discretion. Commonwealth v. Laird, 988 A.2d 618, 636 (Pa. 2010). A
determination that a trial court abused its discretion in making an evidentiary ruling “may
not be made ‘merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly erroneous.’” Id. (quoting
Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)). Further, discretion is
abused when the law is either overridden or misapplied. Commonwealth v. Randolph,
873 A.2d 1277, 1281 (Pa. 2005).
Our review of the Superior Court’s assessment of the trial court’s discretionary
decision, of course, is not deferential, but plenary and de novo. This Court is in the
same position as the Superior Court when reviewing discretionary trial level
determinations. Moreover, we are mindful that the question is not how we might have
balanced the Randall factors had we been presiding over the trial. The question is
whether the trial court’s balancing fell within its discretionary authority.
Here, the Superior Court panel recognized that the trial court correctly identified
and considered the governing substantive law: the Randall line of cases setting forth the
[J-88-2014] - 9
requisite factors governing the admission of remote crimen falsi convictions. Nor did the
panel, or appellee for that matter, suggest that the trial court’s judgment was manifestly
unreasonable, the product of partiality, prejudice or ill-will, clearly erroneous, or
represented a misapplication, or overriding of, Pennsylvania law. Rather, in overturning
the trial court, the panel appears to have reweighed the probative value of appellee’s
prior crimen falsi offense and its potential prejudicial effect by reapplying the requisite
five-factor analysis on its own assessment, and then determined that the trial court
abused its discretion because the panel, analyzing a cold record, reached a different
conclusion. The panel’s approach and determination cannot stand.
The difference between the trial court’s analysis and that of the Superior Court
fundamentally is not a matter of legal error on the part of the trial court, but a reflection
of differences in judgment in weighing and reweighing the same identified factors, yet
reaching different conclusions. On the record here, where the trial court considered all
factors in light of the case that unfolded before it, and where measures were taken, both
by the trial court and the prosecutor, to ensure that the crimen falsi evidence was not
misunderstood or misused, it cannot be said that the trial court’s decision suffers from
such a lack of support that it is clearly erroneous. This is particularly so where there is
no real dispute that of the five enumerated considerations in Randall, only one, a factor
which was addressed and weighed by the trial court, has been argued to counsel
against the trial court’s discretionary decision. At least three of the remaining four
factors counsel in support of the trial court’s discretionary ruling.
But, it is not a matter of merely counting up factors. The vesting of discretion
allows for flexibility in balancing factors, according to the circumstances. Thus, for
example, there is certainly some force in appellee’s argument that, when the prior crime
involves the same basic offense currently being tried, there is a greater likelihood that a
[J-88-2014] - 10
juror might lapse into viewing the prior crime as indicating a propensity for that particular
type of crime. But, on the other hand, here, there was but one prior offense; obviously,
the greater the number of prior crimen falsi convictions, the greater the danger of
assuming propensity. And, the trial court took specific measures to deter the jury from
considering the crimen falsi as establishing propensity. Appellee’s argument that
admission of his crimen falsi could have been particularly harmful because the case
came down to the credibility of two witnesses and the evidence thus was not
overwhelming misses the complexity of the trial court’s discretionary task. If the crimen
falsi undermined appellee’s case because the jury used it as a basis to discredit his
testimony -- which is how the evidence was posed to the jury by both the prosecutor
and the judge -- that was a proper use, properly “prejudicial” to appellee’s case, and not
a basis for exclusion. Moreover, in understanding the totality of the circumstances
affecting the trial court’s decision, it should be remembered that the Commonwealth’s
prime witness was subject to impeachment as well, on multiple grounds, which
obviously increases the importance, to the Commonwealth, of a similarly well-
established form of impeachment. The point, we reiterate, is not how an appellate court
might balance all of these factors, but rather, whether the trial court’s balancing so
departs from what is reasonable that it can be set aside.
Beyond the panel’s failure to observe the jurisprudential limitations of the abuse
of discretion standard of review, the Superior Court approach and decision are
inconsistent with Pennsylvania law. Evidence to impeach the credibility of a witness is
admissible so long as it is relevant to that purpose and not otherwise barred. Pa.R.E.
607(b). Under settled law, evidence that a witness has been convicted of crimen falsi is
generally admissible, unless the conviction (or release from confinement, whichever is
later) is more than ten years old. Pa.R.E. 609(a), (b). It is only when the crimen falsi
[J-88-2014] - 11
conviction is more than ten years old, as it is here, that evidence of the conviction
becomes conditioned on the probative value of the evidence substantially outweighing
its potential prejudicial effect. Pa.R.E. 609(b)(1). The five Randall factors then guide
that discretionary determination.
Here, the trial court concluded that evidence of appellee’s prior crime was
admissible because, although the prior conviction might suggest criminal propensity to
the jury, each of the other relevant factors weighed in favor of the Commonwealth. The
court found that the prior conviction reflected on appellee’s veracity and that appellee
was old enough at the time of the conviction to have appreciated the consequences of
his actions. Further, the court found that the Commonwealth’s case relied on D.M.’s
testimony of the events, which conflicted with appellee’s account. Therefore, the court
concluded, the Commonwealth’s need to use the prior conviction as impeachment
evidence was high because alternative means of attacking appellee’s veracity were
minimal. As noted, the court instructed the jury to limit its consideration of appellee’s
prior crimen falsi offense to the sole purpose of assessing the credibility and weight of
his testimony, and the Commonwealth specifically argued that the evidence was offered
only to impeach appellee’s credibility.
The Superior Court panel agreed that the conviction reflected upon appellee’s
veracity and that the Commonwealth needed the evidence to attack appellee’s
credibility. Nevertheless, the panel disagreed, apparently as a matter of law, with the
weight that the trial court afforded to appellee’s age at the time of the prior conviction
and the weight afforded to the similarity between the prior and instant crimes in
determining prejudice, again apparently as a matter of law. Notably, the panel cited
former Chief Justice Nix’s dissenting opinion in Randall when it stated, without
underlying support, that “the probative value of a conviction when an individual is in his
[J-88-2014] - 12
early twenties is small” and, as a result, held that its value in the five-factor analysis was
“neutral and neither weigh[ed] in favor nor against introduction of the prior conviction.”
Super. Ct. Slip Op. at 10-11 (citing Randall, 528 A.2d at 1331 (Nix, C.J., dissenting);
United States v. Norton, 26 F.3d 240, 244-45 (1st Cir. 1994); and United States v.
Williams-Ogletree, No. 11 CR 203-3, 2013 WL 66207, at *7 (N.D. III. Jan. 4, 2013)).
Additionally, the panel held that the trial court “understated” the “extreme” prejudicial
effect of appellee’s single 1998 conviction in light of the similarities with the charges that
appellee was facing. According to the panel, “[i]t [wa]s hard to imagine how the jury
would not have inferred that [appellee] had a propensity to commit the instant offenses
because of his prior conviction.” Super. Ct. Op. at 14. So then, because, in the panel’s
view, this “extreme” prejudicial effect outweighed the probative value of the prior crimen
falsi, the panel concluded that its admission was an abuse of the trial court’s discretion.
The panel’s idiosyncratic approach is not supported by Pennsylvania law. The
prejudicial effect of a prior conviction is not assessed in a vacuum; an appellate court
should not only consider the purpose for which the evidence is introduced, but the
actual use made of the evidence and also the jury instructions that accompany the
admission of evidence. See Commonwealth v. LaCava, 666 A.2d 221, 229 (Pa. 1995).
Here, the jury was specifically instructed that the prior conviction was not evidence of
appellee’s guilt and that the jury was required to consider it for the limited purpose of
judging the credibility and weight of the testimony given by appellee as a witness in this
trial. There is no reason to believe that the jury did not follow the trial court’s instruction.
See id. at 228 (jury presumed to follow trial court’s instruction regarding limited purpose
of evidence).
Furthermore, the panel appears to have created a new standard for admitting
evidence of a prior conviction for impeachment purposes with respect to the youth of the
[J-88-2014] - 13
defendant, which is at odds with the controlling rule of evidence. Under Evidence Rule
609(d), in a criminal case, even evidence of an adjudication of juvenile delinquency
“may be used to impeach the credibility of a witness if conviction of the offense would
be admissible to attack the credibility of an adult.” Consistently, there is no support in
Pennsylvania law for the proposition that the probative value of a young adult offender’s
conviction “is small.” Indeed, former Chief Justice Nix did not comment about the
intrinsic probative value of a youthful conviction in his Randall dissent, but rather, what
he believed was the arbitrary nature of the Randall majority’s per se rule of admissibility
with a 10-year cutoff; the dissent’s examples spoke about the relevance of the prior
conviction in several different scenarios. 528 A.2d at 1330-31. The remaining cases
cited by the Superior Court panel are from other jurisdictions, as the Commonwealth
accurately notes. The Superior Court’s decision on this point appears to reflect -- and to
greatly expand upon -- the U.S. Supreme Court’s recent focus on youth as an element
diminishing culpability in criminal matters. See, e.g., Miller v. Alabama, 132 S. Ct. 2455
(2012) (Eighth Amendment prohibits mandatory sentence of life without parole for
juvenile murderers); and Graham v. Florida, 560 U.S. 48 (2010) (Eighth Amendment
prohibits sentence of life without possibility of parole for juvenile convicted of non-
homicide offense).
This appeal, however, poses a non-constitutional issue involving settled
principles of Pennsylvania evidentiary law, and a trial court’s exercise of discretion
under those principles. There was no need, or warrant, for the Superior Court to seek
to innovate a novel standard for admitting a prior conviction for impeachment purposes,
particularly one based on federal sources, since the applicable Pennsylvania Rule of
Evidence and the corresponding federal rule, F.R.E. Rule 609, are quite distinct. Thus,
while subsection (d)(2) of the corresponding federal rule limits the admissibility of
[J-88-2014] - 14
juvenile adjudications to those of witnesses other than the defendant, subsection (d) of
the Pennsylvania rule, as stated, contains no such limitation, but specifically allows the
use of juvenile adjudications for impeachment purposes. Thus under Pennsylvania law,
prior adult convictions of crimes of dishonesty remain fair game for impeachment in
appropriate circumstances.
The Superior Court’s decision is reversed and the case is remanded to that court
to decide appellee’s remaining evidentiary issue. Jurisdiction is relinquished.
Former Justice McCaffery did not participate in the decision of this case.
Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens
join the opinion.
Mr. Justice Saylor files a dissenting opinion.
[J-88-2014] - 15
Commonwealth, Aplt. v. Hoover, J.
Court: Supreme Court of Pennsylvania
Date filed: 2014-12-30
Citations: 107 A.3d 723, 630 Pa. 599, 2014 Pa. LEXIS 3487
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