(concurring):
I agree with the majority’s affirmance of the conviction but I cannot accept its construction of D.C.Code 1973. § 14 — 305 (d), which was enacted as a part of the District of Columbia Court Reform and Criminal Procedure Act of 1970. Pub.L. No. 91-358, § 133(a), 84 Stat. 550.
Congress has expressly and unequivocally provided in Section 14 — 305(d) that “[t]he pendency of an appeal from a conviction does not render evidence of that conviction inadmissible . . . .” [Emphasis added.] On the date the government introduced at appellant’s trial in the instant case evidence of his prior robbery conviction, an appeal from that robbery conviction was still pending. Accordingly, the trial court’s admission of evidence of that prior conviction was in my view not error.
The majority asserts that “[w]hile we recognize that the ‘pendency’ of an appeal from a prior conviction will not render evidence of that conviction inadmissible for impeachment purposes, we hold that an appeal is not pending within the meaning of § 14 — 305(d) if the decision of the appellate court reversing the conviction has been published.” (Op. at 215). In my view this holding inserts a qualification into the statute enacted by Congress for which there is no justification.
The majority states (Op. at 215), “It would be fundamentally unfair to permit the use of such prior conviction for purposes of impeachment simply because the mandate vacating the conviction had not been issued.” But, with all deference, until the issuance of the mandate the appeal is as a matter of law still pending. It seems to me that Congress has anticipated the situation presented in this case by also providing in § 14-305 (d) that “[e]vidence of the pendency of such an appeal [from the conviction sought to be used at trial for impeachment] is admissible.” Hence, appellant had the opportunity under this statute to present to the jury at trial all the facts concerning the status of the appeal of his prior robbery conviction so that the issuance of the opinion by the three-judge panel would have been brought to the attention of the jurors.1
I would affirm for the reason that the trial court correctly permitted the prior conviction to be received.
. I note that appellant’s trial counsel was aware of the appellate status of his client’s prior robbery conviction and apparently chose as a tactical matter to say nothing at all to the jury.