Commonwealth v. Smith

OLSZEWSKI, Judge,

dissenting:

After long reflection, I regret that I must disagree with my learned colleagues’ conclusion that the case at bar requires reversal. While I agree with the majority that the case of Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), is inapplicable to the present situation, I do not agree that this fact, standing alone, warrants a new trial. I must, therefore, respectfully dissent.

As the majority correctly stated, Commonwealth v. Randall, supra, applies only to those situations where a defendant actually testifies at trial. It is clear, therefore, that the trial court should not have relied on this decision in affirming appellant’s conviction. This fact, however, does not mandate reversal as an appellate court can affirm the *618decision of a trial court on any basis even if the reasons given by the trial court for its decision are incorrect. Commonwealth v. Allem, 367 Pa.Super. 173, 532 A.2d 845 (1987). I believe just such a situation exists in the present case.

Appellant argues that the trial court erred by permitting the Commonwealth to introduce excerpts of testimony from another trial where, upon cross-examination, appellant acknowledged his prior criminal convictions. Perusal of the record, however, reveals that appellant’s counsel initiated the review of appellant’s prior testimony and even had admitted into evidence a portion of that testimony favorable to appellant. As previous panels of this Court have stated: “If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area.” Commonwealth v. McCabe, 345 Pa.Super. 495, 498 A.2d 933 (1985); Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987). In Sheaff we held that the trial court committed no error by allowing the Commonwealth to admit into evidence the remainder of a police report which contained the statement of a police officer who was not available to testify at trial, where the defendant had “opened the door” by first referring to the report and having a portion of it admitted into evidence. The analysis utilized by the Sheaff panel is equally applicable to the case at bar.

In the present case, appellant had, in effect, “opened the door” by having admitted into evidence that portion of his prior testimony that was favorable to his case. Moreover, the record indicates that before introducing this testimony, appellant was advised by the trial court that the Commonwealth would be allowed to introduce the remainder of his prior examination should he attempt to introduce only those favorable portions. Thus, appellant was by no means surprised by the Commonwealth’s attempt to introduce the remainder of the testimony and had ample opportunity to avoid the introduction of his prior crimes by not introducing any of the prior examination. Under these circumstances, *619appellant’s claim of trial court error should have been rejected. To hold otherwise would allow a non-testifying defendant to submit self-serving testimony free from attack which he would otherwise not be able to do had he taken the stand and testified.

Accordingly, I would affirm the judgment of sentence of the trial court.