Commonwealth v. Johnson

WIEAND, Judge,

dissenting:

I respectfully dissent. In my judgment it was an abuse of discretion to permit the Commonwealth to attack appellant’s credibility by showing two prior convictions for unauthorized use of a motor vehicle. I would reverse and remand for a new trial.

Charles F. Johnson was being tried for theft and unauthorized use of a motor vehicle. He had been found behind the wheel of a stolen pickup truck at 3:30 a.m. after the truck had become “hung-up” on a guardrail. Johnson testified that the truck had been driven by a friend and that he, Johnson, had not been aware of the fact that the truck had been stolen. The Commonwealth was then permitted, over objection, to attack his credibility by showing that on two prior occasions Johnson had been convicted of unauthorized use of an automobile. Johnson’s objection, contained in a motion in limine, was based specifically on decisions of the Supreme Court in Commonwealth v. Bighum1 and Commonwealth v. Roots2 (N.T. 35, 36). After the jury had returned a verdict finding Johnson guilty of theft by unlawful taking, theft by receiving stolen property and unauthorized use of a vehicle, Johnson filed a motion for new trial in which he preserved for review the trial court’s ruling. On direct appeal from the judgment of sentence, Johnson argues, inter alia, that “the trial court erred in admitting evidence of the appellant’s prior convictions.” (Appellant’s brief, p. 3, Statement of Questions).

Prior to the Supreme Court’s decision in Commonwealth v. Bighum, supra, the law was clear that if a defendant in a criminal case took the stand in his own behalf, the *33Commonwealth could introduce rebuttal evidence of a prior conviction for a felony or a misdemeanor crimen falsi to attack the defendant’s credibility. Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), cert. denied, 368 U.S. 945, 82 S.Ct. 384, 7 L.Ed.2d 341; Commonwealth v. Kostan, 349 Pa. 560, 37 A.2d 606 (1944). The theory was that “[i]f a defendant offer[ed] himself as a person worthy of belief, the jury ha[d] the right to know what kind of man he [was] — to aid in assessing his credibility.” Commonwealth v. Butler, supra 405 Pa. at 47, 173 A.2d at 474. This imposed an almost impossible burden on the members of the jury. For a juror to limit his or her consideration of a defendant’s prior criminal convictions strictly to a determination of credibility while refusing to draw an inference of guilt from the defendant’s perceived propensity to commit crime required the juror to engage in mental gymnastics frequently beyond his or her ability.

Instructions from the court to the jury that they are to consider the evidence of prior convictions only on the question of credibility and not on the issue of guilt are unlikely to effectively mitigate the prejudicial impact of prior conviction evidence. Such instructions require the jury to walk a mental tightrope. On the one hand, the jury is told that it may infer from a past conviction that the witness has a propensity to lie. On the other hand, it is forewarned not to infer from the witness’ past conviction a propensity to engage in the kind of criminal activity for which he now stands accused. It is unlikely that jurors will be able to so compartmentalize their thought processes as to draw only inferences which go to the question of credibility.
Judge Learned Hand in Nash v. United States [54 F.2d 1006 (2 Cir. 1932)] aptly described these instructions as the “mental gymnastic which is beyond, not only their [the jury’s] powers, but anybody’s else [sic].” The Advisory Committee, which drafted the Proposed Federal Rules, also expressed misgivings. It observed that the introduction of such evidence against a criminal defend*34ant to impeach his testimony might create “such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is an habitual lawbreaker who should be punished and confined for the general good of the community.” Moreover, a study of juries undertaken by the University of Chicago showed that juries were unable to refrain from concluding on the basis of the defendant’s criminal record that he was a bad man and, hence, was more likely guilty than not guilty of the crime for which he was standing trial.
Hence, it is clear that the introduction of prior conviction evidence creates grave risks of prejudice.

Krauser, The Use Of Prior Convictions As Credibility Evidence: A Proposal For Pennsylvania, 46 Temp.L.Q. 291, 294-295 (1973).

This concern prompted a careful reconsideration of the rule by the Supreme Court in Commonwealth v. Bighum, supra. Because the only legitimate purpose for introducing evidence of prior convictions was to cast doubt upon a defendant-witness’s veracity, the Court held that a prior conviction would be admissible only if it had been for a crime which reflected upon the witness’s veracity. Thus, the Court held, “it is important to limit the convictions ... to crimes involving dishonesty or false statement.” Id. 452 Pa. at 566, 307 A.2d at 262. Moreover, the Court held, the admissibility of such evidence was to be limited to situations where its use was of essential evidentiary value to the prosecution and not unreasonably unfair to the defense. Id., 452 Pa. at 567, 307 A.2d at 263.

This balancing test was refined by the Supreme Court in Commonwealth v. Roots, supra. The Court there held that the burden was on the prosecution to show that the need for evidence of prior convictions overcame its inherent potential for prejudice. Id. 482 Pa. at 41, 393 A.2d at 368. A non-exhaustive list of factors to be considered by the trial court was held to include:

1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; *352) 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 (footnote omitted). Before these considerations enter the equation, however, a threshold determination must be made that the conviction proposed to be shown by the Commonwealth involves “dishonesty or false statement.”

When the law of Bighum and Roots is applied to the circumstances of the instant case, it becomes evident that appellant’s prior convictions for unauthorized use of motor vehicles should not have been allowed. This evidence should not have been allowed (1) because “dishonesty or false statement” was not an essential element of the offenses for which appellant had previously been convicted and (2) because the inherent potential for prejudice in the evidence outweighed by far the prosecution’s need to show the prior convictions.

The offense of unauthorized use of a motor vehicle is defined at 18 Pa.C.S. § 3928 as follows:

A person is guilty of a misdemeanor of the second degree if he operates the automobile ... or other motor-propelled vehicle of another without consent of the owner.

It has been said that “[t]his legislation is directed mainly against the phenomenon of 'joy-riding’, i.e., taking someone else’s car without permission, not meaning to keep it, but *36just for the pleasure of driving it____ The offense is typically committed by youngsters____ The prohibited activity is characterized in present laws as (1) taking without intent to deprive permanently, (2) using, or (3) driving or operating without intent to steal, or a combination of these.” Toll, Pennsylvania Crimes Code Annotated § 3928, quoting Model Penal Code Comment [T.D. No. 2, p. 89] (emphasis added). The only criminal intent required by the Pennsylvania statute is recklessness. It is enough that a defendant knows or has reason to know that he does not have the consent of the owner. A conviction can be had if the defendant consciously disregards a substantial and unjustified risk that the owner did not consent to his use of the vehicle. Commonwealth v. Hogan, 321 Pa.Super. 309, 312-315, 468 A.2d 493, 495-496 (1983). See: Commonwealth v. Utter, 279 Pa.Super. 557, 421 A.2d 339 (1980). Because a dishonest intent is not a necessary element of this offense, I would hold that a conviction for unauthorized use of a motor vehicle is not relevant to impeach the credibility of a witness in a court of law.

Moreover, even if we assume that appellant’s prior conviction for unauthorized use of a motor vehicle had some slight relevancy to attack his credibility, the prejudicial effect thereof so greatly outweighed its relevance that the evidence should not have been allowed. The arrest occurred when police, at or about 3:30 a.m., came upon a pickup truck which had collided with and was wedged against a highway guardrail. When the police approached the truck, appellant was observed sitting behind the steering wheel. He exited the truck and walked toward the police. Appellant told the police that he had come upon the truck while walking along the highway and had stopped to give “a hand” to the driver. Appellant said that the driver, whom he could not identify or describe, had left the area by walking through the woods. Appellant was thereupon arrested and charged with unauthorized use, theft by unlawful taking and theft by receiving stolen property.

*37At trial, appellant explained that he had been a passenger in the truck while it had been driven by his friend of fifteen years, Lionel Toalton. He said he did not know that the truck had been stolen. When the truck failed to function properly, appellant said, the truck had been allowed to drift down the hill. As a consequence, the truck had become “hung-up” on the guardrail. While appellant remained seated on the passenger’s side, he said, Toalton had exited the truck to ascertain whether the truck had been damaged. Instead of returning to the truck, appellant testified, Toalton left to get help. While he was absent, the police arrived.

Toalton declined to testify at the trial on grounds that his testimony might tend to incriminate him. The Commonwealth’s evidence, therefore, was circumstantial. If the permissible inference of guilt to be drawn from the circumstances was to be rebutted, it was probably necessary that appellant testify in his own behalf. Most persons in appellant’s position would find an explanation not only appropriate but absolutely essential.

To permit the Commonwealth to impeach appellant thereafter by showing prior convictions of unauthorized use of a motor vehicle was unnecessary to the Commonwealth and grossly prejudicial to the defendant. In the first place, as we have seen, the prior convictions were for offenses which had little, if any, relevancy in determining whether appellant was a truth-telling witness. Secondly, appellant’s prior criminal record consisted of offenses of the same type for which he was then being tried. Therefore, it was almost certain that his prior record would suggest a propensity to commit the very crime for which he was being tried. See: Commonwealth v. Williams, 273 Pa.Super. 389, 417 A.2d 704 (1980). Finally, the Commonwealth had alternative means available to it for attacking appellant’s credibility. It could effectively impeach his credibility as a witness by showing the prior inconsistent, if not ridiculous, statement made by appellant to the police prior to his arrest.

*38After the Commonwealth had been permitted to show appellant’s two prior convictions for unauthorized use of a motor vehicle, no reasonable expectation remained that the jury would be able to base a verdict solely on the relevant, substantive evidence. The jury was no longer impartial and objective. The Commonwealth’s evidence had established that appellant was a criminal; and, therefore, a guilty verdict on the pending charges had become a virtual certainty.

It may very well be that appellant is guilty, as the jury found him to be. I am not persuaded, however, that he received the fair trial which our law guarantees. Therefore, I would reverse the judgment of sentence and remand for a new trial.

The majority seeks to buttress its determination that appellant received a fair trial by suggesting that he has waived, at least in part, the issue of the admissibility of prior convictions because he failed to use sufficiently specific language in making his objection. This conclusion is not warranted. Appellant’s objection was based specifically upon the holdings of the Supreme Court in Bighum and Roots. The trial court’s ruling which permitted the jury to consider evidence of prior convictions to attack appellant’s credibility was thereafter preserved for review at each and every stage of the proceedings. It was not essential to a preservation of the issue that it be more particularly defined by reciting one or more specific portions of the balancing test stated in Bighum and Roots. This Court is not relieved of its duty to decide issues correctly because appellant’s counsel has made a weak argument, used the wrong words, or even overlooked established legal principles in advancing his argument. It is issues which are waived, not arguments. The law would truly be uncertain, even unpredictable, if litigated issues were decided solely on the basis of arguments advanced by counsel to the exclusion of well established principles of law.

I dissent.

. 452 Pa. 554, 307 A.2d 255 (1973).

. 482 Pa. 33, 393 A.2d 364 (1978).