the witness stand on his own behalf and asserted his innocence of the crime. In response to the ruling of the trial court, the defendant Dixon testified on direct examination about a 1967 conviction for larceny, apparently in an effort to minimize its prejudicial impact on the jury. Defendant now contends that the trial court's decision to allow testimony concerning the prior conviction forced him to disclose the larceny conviction and that he should not have been compelled to make such an election.
It is well-settled law in this Circuit that a conviction of a crime which is a felony or a misdemeanor involving crimen falsi may be used to impeach a defendant. United States v. Gray, 468 F.2d 257, 262 (3rd Cir. 1972); United States v. Mitchell, 427 F.2d 644, 646 (3rd Cir. 1970). The crime of larceny is a felony involving moral turpitude and, as such, is relevant to the question of defendant's honesty and truth-telling capacity. When a defendant is on trial for robbery and takes the witness stand to assert his innocence, the jury is entitled to be apprised of a defendant's prior dishonest conduct. The trial court properly exercised its discretion in permitting the Government to introduce Dixon's prior conviction.
All of the defendants contend that there was insufficient evidence adduced at trial to sustain a conviction of the offense charged. The Court is fully cognizant of the firmly established legal precept that evidence of mere presence at the scene of a crime is insufficient to prove guilty participation. Hendrix v. United States, 327 F.2d 971 (5th Cir. 1964); United States v. Minieri, 303 F.2d 550 (2nd Cir. 1962). However, the evidence introduced by the Government at trial established more than mere presence of the defendants at the scene of the crime. The evidence revealed that Reginald Ackridge and Donald Ackridge produced guns as they accosted Officer Gilmore and the informant, Eugene Alexander. Officer Gilmore testified that Donald Ackridge struck Alexander in the face with a gun and that Demetrius Greenhawe reached in his pocket (Gilmore's), pulled out the $150 in official Government money and then kicked him in the back. The victims of the armed robbery testified that they were surrounded by the six individuals; all of the defendants were hurling insults and threats; and, by virtue of the number of the group, the two were unable to defend themselves or escape the intimidating actions of the defendants. All of the defendants were apprehended while in flight from the scene of the crime. While evidence of flight is not in and of itself sufficient to constitute guilt, the fact of flight, when viewed in conjunction with the evidence of intimidation and verbal abuse, establishes the guilt of each defendant. When Officer Bruno finally caught up to and apprehended Zachary Scott, the afore-described.22 caliber pistol was found on his person.
The Government introduced evidence from which the jury could find beyond a reasonable doubt that the defendants willingly associated themselves with this criminal enterprise and participated in it as something that they all wished and intended to bring about. United States v. Barber, 429 F.2d 1394 (3rd Cir. 1970). The jury so found.
Defendant Demetrius Greenhawe has petitioned the Court to grant a new trial on the basis of evidence discovered after the completion of the trial. During the trial of the matter in question, Eugene Alexander testified that he had not used heroin since May 20, 1973.
On or about July 25, 1973, Mr. Alexander testified in a criminal trial before the Honorable Clifford Scott Green, United States District Judge. At that proceeding, Mr. Alexander testified that in June of 1973 he entered Einstein Hospital, Southern Division, for drug treatment and that he had used narcotics three weeks prior to his admission into Einstein Hospital. Defendant Greenhawe now argues that the fact of Alexander's heroin addiction should be presented to be considered in weighing the credibility of the witness.
The general rule is that newly discovered evidence merely impeaching the credibility of a Government witness is insufficient to justify a new trial. United States v. Kozak, 438 F.2d 1062, 1067 (3rd Cir. 1971); United States v. Odom, 348 F. Supp. 889, 893 (M.D. Pa. 1972). Evidence that the informant Alexander had in fact used narcotics after May 20, 1973, would be introduced by the defense solely to impeach the credibility of the witness. In this case, Alexander was subjected to vigorous and exhaustive cross-examination in connection with his drug problems and prior criminal record. The jury was fully aware of the witness' addiction and propensity toward criminal conduct.
Furthermore, a new trial should be granted when the trial judge determines that the "newly discovered evidence would probably lead to an acquittal on retrial." United States v. Cousins, 429 F.2d 1271, 1272 (9th Cir. 1970); United States v. Odom, supra, at p. 893. Although Alexander was a victim of the armed robbery and identified the defendants at trial, the Court does not believe that the introduction of the newly discovered evidence would lead to an acquittal on retrial.
Accordingly, the motions for a new trial and judgment of acquittal must be denied.