Commonwealth v. Williams

McDERMOTT, Justice,

dissenting.

The majority opinion, in assessing the evidence in this case, would hold that the evidence is under shadow of disbelief simply because it was contradicted and therefore, that the Commonwealth’s error was not harmless. Evidence until solidified to fact by the triers of fact is mere allegation. However numerous the proofs, it is nothing until it is accepted as credible by those charged to examine it. When it is legally proper and accepted as credible, all contradiction falls, however persuasive it may have seemed before it was examined and rejected. It becomes nothing. The triers of fact may choose one, some or none of the evidence offered and what they say happened, happened for all legal purposes on this side of the grave. After their verdict, there is no counting except of those they believed. What others may believe is of no moment. We have no authority to supplant their view with ours. When the evidence found legally supports the charge, and the jurors in this case, found the fictitious story offered by the appellant and his serendipitous witness incredible, we have no right or reason to say what they found remains in doubt or loses its force simply because it was contested.

Neither should we dilute it or find it less compelling by counting evidence or testimony that was rejected. Neither should we diminish its force in determining whether it is sufficient, beyond a reasonable doubt, to render an error de *413minimus or irrelevant because one might have found otherwise.

In this case, two prior convictions were offered to attack credibility. One for theft, and the other for assault and resisting arrest. The assault and resisting arrest are not, under present definitions, crimen falsi, for which error the majority reverses. Given the evidence offered by the appellant, the error could hardly be determinative in this case. To believe the obvious, fabricated hoax concocted by these two cell mates is to believe a frog may be a bewitched prince. The appellant was seen by a passing police officer holding a gun on the victim. The officer jumped out of his car and pursued him, he briefly eluded the officer, but was immediately captured by another police officer. Returned to the scene, he was immediately identified by the victim, the two police officers and a passing motorist who also saw appellant holding the victim. To which the appellant offered the testimony that he, walking by, was suddenly accused by the victim and ran for fear. He offered one Gannon Haskins as a witness, a man he did not know before the robbery, but who a year later met him on the street and then in jail where they cemented their friendship, and their story. Haskins testified he was also walking near the crime scene and it was not the appellant but three other unknown men who committed the robbery. To read the evidence is not only to disbelieve, it is to be entertained by the comic hope that such a factitious scenario could be believed by anyone. The jury required no other incentive to convict.

I dissent also because I believe the present definition of crimen falsi is too narrow a tool for testing credibility. Prior to this Court’s decision in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), it was the law in Pennsylvania for decades that a witness or defendant who took the stand could be impeached by resort to his prior convictions of any felonies, or any misdemeanors involving crimen falsi. “The rule of evidence is founded on common sense and logic. If a defendant [or a witness] offers himself as a person worthy of belief, the jury has the right to know *414what kind of man he is — to aid in assessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for veracity is evidence for the jury’s consideration.” Commonwealth v. Butler, 405 Pa. 36, 47, 173 A.2d 468 (1961). As is the case in all human endeavors and relationships, the various path’s of life followed or chosen, for good or ill, leave an indelible mark upon credibility. Witnesses do not come to the stand in a vacuum, nor are they entitled to be viewed tabula rasa. The credibility of their testimony must be assessed in the bright light of all relevant factors including such things as bias and prejudice and their propensity toward truthfulness.1 For purposes of impeaching the credibility of any witness, I would re-adopt our previously long standing rule . set forth in Commonwealth v. Butler, id. permitting introduction of convictions of any prior felonies, misdemeanors in the nature of crimen falsi, with appropriate time limitations as spelled out in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987). I would also add convictions for more than one misdemeanor that require a mens rea. I would certainly add the sale of drugs as an impeachable tool. Who sells drugs steals more than money and I would hold that when they do they sell their credibility as well.2 One’s prior conduct, whether they speak for the prosecution or defense in a court of law should be no differently considered than in the universal experience that what one does in their life counts for or against their credibility. Prior offense does not prove present guilt and under a *415proper charge by the court, that fact, also of universal experience, can be made plain to the jurors. That one could risk their credibility by committing an offense is, as it always was, a sound deterrent. When fully restored as a known and usable tool to test credibility it will hopefully not only deter but will also end the practiced, brazen liars more experienced in court than the police who arrested them and many of the lawyers who defend them.

I dissent.

PAPADAKOS, J., joins this dissenting opinion.

. "The issue always is truth of the witness’ testimony. In other words, is the witness devoid of moral perception, such a person as would regard lightly the obligations of an oath to tell the truth?” Burgess v. State, 161 Md. 162, 171, 155 A. 153, 157 (1931).

. In reviewing the propriety of the introduction of a prior conviction for sale of heroin to impeach a defendant witness, the Second Circuit Court of Appeals recognized this reality. “Here, the District Judge in his discretion was entitled to recognize that a narcotics trafficker lives a life of secrecy and dissembling in the course of that activity, being prepared to say whatever is required by the demands of the moment, whether the truth or a lie. From this he could rationally conclude that such activity in a witness’ past is probative on the issue of credibility.” United States v. Ortiz, 553 F.2d 782, 784, (2nd Cir.), cert. denied, 434 U.S. 897, 98 S.Ct. 277, 54 L.Ed.2d 183 (1977).