Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1967, No. 2451, in case of Commonwealth of Pennsylvania v. Michael Connolly.
Alfred P. Filippone and Girone & Filippone, for appellant.
James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., and Watkins, J., would affirm on the opinion of Judge Barbieri.
[ 217 Pa. Super. Page 202]
In the course of his trial for blackmail, appellant took the stand to testify in his own defense. For the purpose of impeaching his credibility, the Commonwealth proved that appellant had once been convicted of robbery by calling a clerk of court, who indicated that appellant had pleaded guilty to an indictment charging him with robbery.
Following this testimony, the following events occurred, as related in the opinion of the court below: "At this juncture in the trial, the Commonwealth called the Honorable Vincent A. Carroll to the witness stand for the purpose of identifying Connolly as the same person who had entered a plea of guilty before him to the indictment about which the court clerk had previously testified. . . . Previously, in chambers, Connolly's attorney had objected to Judge Carroll's testimony as unnecessary because Connolly was willing to stipulate that he was the same person whose plea Judge Carroll
[ 217 Pa. Super. Page 203]
accepted. Upon the insistence of the Assistant District Attorney that the jury had a right to see the witness and judge his credibility, the objection was overruled and Judge Carroll was permitted to testify."
After identifying appellant, Judge Carroll stated: "I tried Connolly and sentenced him and I remember very well, because the case had been a nuisance to me ever since." Appellant's counsel then moved for the withdrawal of a juror. When Judge Carroll started to speak again, counsel interrupted: "Just a moment Judge Carroll." The Judge responded: "You just a moment." Counsel replied: "Please, you are a witness, please, please."
After being asked to verify his signature, Judge Carroll added: "I remember the case very well." Upon cross-examination, when asked if he remembered the case, he replied: "I certainly do. I recall the trial. I recall the post trial atmosphere." When this was objected to, he stated: "I recall the trial, then, period."
The jury convicted appellant of blackmail. From judgment of sentence, he now brings this appeal.
The law is clear that "[w]here a defendant in a criminal case takes the stand in his own defense he occupies the same status as any other witness and his credibility is in issue. The Commonwealth may therefore, by way of rebuttal evidence, introduce testimony as to his prior record of conviction of felonies or of misdemeanors in the nature of crimen falsi for the purpose of affecting his credibility." Commonwealth v. Scoleri, 432 Pa. 571, 579-580, 248 A.2d 295, 299 (1968). "Although severely criticized, the rule in Pennsylvania still permits the prior conviction of robbery to be introduced with the ...