Commonwealth v. Phillips

WIEAND, Judge,

dissenting:

I respectfully dissent. The admissibility of prior convictions involving dishonesty for purposes of impeaching a criminal defendant’s credibility rests in the sound discretion of the trial court after balancing the factors which bear upon the competing interests involved. Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). In order that there be a meaningful exercise of that discretion, a trial court must consider the following factors: “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.” Commonwealth v. Roots, 482 Pa. 33, 39, 393 A.2d 364, 367 (1978).

*22In the instant case, the trial court considered these factors and ruled that a one-year old conviction for theft would be admissible to impeach the credibility of a nineteen year old defendant charged with the stabbing death of a woman as she walked along the streets of Philadelphia. Appellant did not testify. He now contends that the court’s ruling deprived him of the right to give effective testimony which would have denied guilt and challenged the voluntariness of his confession. The majority finds that the trial court abused its discretion and awards appellant a new trial. I find ho abuse of discretion and no basis for granting a new trial. Therefore, I must dissent.

A balancing of the factors to be considered discloses that appellant’s conviction, which had occurred one year earlier when appellant was eighteen, was for theft, a crime of dishonesty. Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979). Such a conviction does tend to discredit a witness as being untruthful. However, it does not in any way suggest a propensity to commit murder, the crime with which appellant was charged in this case. Thus, the majority concedes that the conviction would satisfy the first three prongs of the Roots test.

The majority concludes, however, that these factors are outweighed because appellant could only attack his confession and deny guilt by taking the stand himself. I am unable to find support for this conclusion. In the first place, appellant could — and did — file a pretrial application to suppress his confession. At the pretrial hearing, appellant took the stand and testified, but did not then contend that he had been “beaten and tortured” before giving a confession. Although defense counsel now suggests that defendant was beaten by the police, the argument which he made to the jury at trial was that the confession had been fabricated by the police.

Moreover, appellant was not deprived of an opportunity to presént a defense. Two alibi witnesses testified that appellant had been elsewhere at the time of the killing; and an eyewitness testified that appellant was not the killer. *23Clearly, this case is factually distinguishable from Commonwealth v. Roots, supra, where the defendant had no available means, other than taking the stand, to present his version of the facts. Here, the Commonwealth’s case depended largely upon appellant’s confession and the testimony of a witness who observed him running from the scene of the crime. Evidence of a prior conviction of a crime of dishonesty to attack appellant’s credibility if he had testified, therefore, would have been more necessary than in Roots, where the “defendant was apprehended virtually ‘red-handed’ ”. Commonwealth v. Roots, supra, 482 Pa. at 42, 393 A.2d at 368.

The final factor to be considered is whether there were alternative means of impeachment available to the Commonwealth. The majority suggests that the Commonwealth might have relied on the testimony of appellant’s mother that when she saw appellant after his confession he did not appear to be bruised. The ruling of the trial judge was made at the beginning of the trial. Reliance upon the testimony of defendant’s mother at this point was tenuous at best. She was a defense alibi witness, not a Commonwealth witness. Furthermore, this is merely one of several factors which must be considered in determining admissibility under Roots.

After carefully weighing and considering all factors, it appears that the trial judge was well within the proper exercise of his discretion when, on balance, he found that the prejudicial effect of appellant’s prior conviction would have been outweighed by its value in permitting the jury to make a more accurate assessment of appellant’s credibility. See: Commonwealth v. Perrin, supra. Indeed, if the facts of this case demonstrate an abuse of discretion, I can imagine very few instances in which a prior conviction will properly be received to attack the credibility of a defendant in a criminal case. If prior convictions are no longer to be admissible to attack the credibility of a defendant, then we should say so. On the other hand, if the rule is to be that admissibility is determined in the exercise of a sound discretion by the trial judge, then we should not be too quick to reverse.

*24Having examined appellant’s remaining arguments and finding them to be without merit, I would affirm the judgment of sentence.