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decided: January 24, 1974.


Appeal from order of Superior Court, Oct. T., 1972, No. 234, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 1410, in case of Commonwealth of Pennsylvania v. Monserate Zapata.


Donald M. Moser, for appellant.

Edmond H. Heisler and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Eagen and Mr. Justice Roberts concur in the result.

Author: Jones

[ 455 Pa. Page 206]

On April 23, 1971, appellant was convicted by a jury of aggravated assault and battery and, following the denial of post-trial motions, was sentenced to a term of imprisonment of one to three years. On appeal, the Superior Court unanimously affirmed without

[ 455 Pa. Page 207]

    opinion.*fn1 We granted allocatur and this appeal followed.

At trial, the Commonwealth produced evidence which established that around midnight on May 22, 1970, the appellant administered a severe, unprovoked beating to one Miguel Vergara.*fn2 In response, appellant's testimony indicated that Vergara had been the attacker and that he (appellant) had only struck Vergara four times in self-defense.

Appellant has raised a very interesting question regarding alleged ineffective assistance of counsel at trial. Specifically, he charges that counsel's conduct in revealing his client's two prior convictions for voluntary manslaughter on direct examination constitutes manifest ineffectiveness. Appellant argues that, because these convictions mentioned arose out of crimes committed subsequent to the instant offense and because sentence had not yet been imposed on those convictions, they were not admissible for any purpose. Consequently, it is urged that counsel had no reasonable basis for his decision to bring this evidence out on direct examination.

In order to evaluate appellant's claim of ineffective assistance of counsel, it is necessary to first examine the alternatives which were open to counsel at trial and the course chosen. If, upon such examination, we find that counsel had a "reasonable basis" for his action, we will not find ineffectiveness as a matter of law. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 603, 235 A.2d 349, 352 (1967). Conversely, if

[ 455 Pa. Page 208]

    no reasonable basis is evident, we must find that appellant was denied his constitutional right to effective assistance of counsel. 427 Pa. at 611, 235 A.2d at 356.

Even where its use is properly limited to impeaching credibility, the introduction of a defendant's criminal record possesses a potential for severe prejudicial impact on a jury. Thus, there would rarely be a time when the introduction of such evidence would produce some result favorable to the defendant. Nevertheless, there may be situations where a defense attorney is substantially certain that the prosecution will utilize a defendant's prior convictions if he decides to testify. In those situations, it may be reasonable trial strategy for the defense counsel to bring those convictions out on direct examination in order to minimize their impact, thus muting the prosecution's thunder. Before doing so, however, counsel should be convinced that such evidence is available to the prosecution, i.e., that the convictions would properly be admissible to impeach the defendant's credibility. In the absence of such certainty, counsel would be acting "ineffectively" if he introduced an aspect of his client's criminal record which was, in fact, not competent evidence. Thus, our present inquiry must focus on whether counsel for the appellant justifiably believed that the record of these convictions was admissible.

Appellant's first point -- that the convictions were inadmissible because they related to crimes committed subsequent to the charge being tried -- cannot be accepted as an absolute principle of law. He relies principally on our decision in Commonwealth v. McIntyre, 417 Pa. 415, 208 A.2d 257 (1965), wherein we held that the introduction of the defendant's convictions for crimes committed subsequent to the charge being tried was reversible error. What appellant fails to note, however, is that in McIntyre we specifically limited our holding to the "particular facts and circumstances

[ 455 Pa. Page 209]

    of [that] case." 417 Pa. at 922, 208 A.2d at 261. The factual posture therein involved included the trying of less serious but subsequently committed charges prior to the trying of the more serious offense, which in that case was murder. Thus, our concern in McIntyre was the potential danger of calendar juggling to create a record prior to trying the more serious offense. 417 Pa. at 422, 423 n. 14, 208 A. at 261 n. 14. This restricted reading of McIntyre is supported by the Superior Court's decision in Commonwealth v. Conard, 206 Pa. Superior Ct. 33, 211 A.2d 14 (1965), cited with approval by this Court in Commonwealth v. Richardson, 433 Pa. 195, 201, 249 A.2d 307, 310 (1969). In Conard, Judge Jacobs distinguished McIntyre in this manner: "This is not a capital case and there is no indication of court calendar manipulation. . . . Inasmuch as the Supreme Court, in McIntyre, did not abrogate the general rule in Pennsylvania permitting defendant's credibility to be impeached by showing prior convictions of felonies, we are of the opinion that the prior convictions admitted into evidence in this case fall under the general rule rather than the exception enunciated in the McIntyre case. The credibility of the witness is being attacked as of the time of the trial not as of the time of the commission of the offense for which he is being tried." 206 Pa. Superior Ct. at 39, 211 A.2d at 17-18. (Emphasis added.) Subsequently, in Richardson, this Court distinguished McIntyre in a similar manner: "In McIntyre, we were concerned about the possibility that the Commonwealth might arrange the order of the defendant's trials for the purpose of creating a record. In this case there is no evidence that the Commonwealth was attempting to create such a record. Appellant was indicted in Philadelphia for the felonies and in Delaware County for the murder in the same month. Trial was delayed in Delaware County because appellant moved

[ 455 Pa. Page 210]

    for a change in venue. Therefore, there does not appear to be anything sinister in the fact that appellant was tried in Philadelphia on the felony charges and then tried for murder in Delaware County. We have studied the record and do not find that appellant was denied due process by the introduction of the record of his convictions in Philadelphia at his murder trial." 433 Pa. at 201, 249 A.2d at 310. In the present case, as in Richardson, there is no indication of calendar manipulation to create a record. The more serious offenses were tried first, thus negating any attempt to "build up" a record. Hence, the appellant's prior convictions were not barred from admissibility under the McIntyre rationale and we cannot therefore characterize counsel's representation as "ineffective" on that basis.

Appellant, however, raises another problem with the criminal record involved here, namely that a sentence had not been imposed for the manslaughter offenses at the time they were introduced in this case. Appellant argues on the authority of Commonwealth v. Finklestein, 191 Pa. Superior Ct. 328, 156 A.2d 888 (1959), that such convictions are inadmissible, even for impeachment purposes. The Commonwealth does not contest appellant's reading of Finklestein, i.e., that prior convictions may be used to impeach a witness' credibility only if sentence has been imposed for those convictions. See 191 Pa. Superior Ct. at 333-34, 156 A.2d at 892. It does argue, however, that Finklestein, although not specifically overruled, has lost much of its vitality because of our decisions in Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969), and Commonwealth v. Fowler, 451 Pa. 505, 304 A.2d 124 (1973).

It is nonetheless our view that the rule of Finkelstein must apply without exception to situations where the witness whose credibility is under attack is the

[ 455 Pa. Page 211]

    criminal defendant in that particular trial. Nothing in Ross or Fowler suggests otherwise.

The Commonwealth cites Ross for the proposition that a witness under indictment for an offense which is identical or closely-related to the offense for which the accused is on trial may not be cross-examined regarding such indictment. Even if this citation did accurately reflect the holding of that case (which it does not), it is clearly inapposite to the present situation where the witness in question is the defendant himself. The rationale for permitting the interrogation of a witness regarding his indictment under such a rule is to facilitate the exposure of his potential interest in the immediate matter. Such rationale is inoperative in the present situation where the witness is the defendant himself.*fn3

The alleged relevance of the Fowler case to the instant matter is even more perplexing. Fowler dealt with "the rights of an individual convicted of first degree murder and facing a mandatory sentence of life imprisonment to bail pending the disposition of post-trial motions." 451 Pa. at 507-08, 304 A.2d at 125. Any analogy between that situation and the present case is very strained.

The potential hardship incurred by a convicted murderer in not receiving bail between the time of the jury's verdict and the disposition of post-trial motions is slight compared to the potential prejudice to a defendant in permitting the introduction into evidence of previous but non-final convictions. President Judge Rice in American Bank v. Felder, 59 Pa. Superior Ct. 166 (1915), noted this potential for prejudice in the use of guilty verdicts as impeachment evidence: "A

[ 455 Pa. Page 212]

    conviction, using the word in its legal sense, of such crime is admissible because it tends to show the defectiveness of the moral character of the witness in respect of truthfulness, which is relevant in impeachment. . . . A verdict of guilty, without more, stands on a different plane. The most it establishes is that the jury believed the accused to be guilty. But until sentence is pronounced the issue is not necessarily closed; a new trial may be granted or judgment be arrested. In either event the verdict goes for naught. It may injure the witness in the estimation of the jury, just as in a less degree the mere indictment of the witness would. But as evidence that the moral character of the witness for truth is bad it is unreliable because of its incompleteness." 59 Pa. Superior Ct. at 170-71. We conclude that the prior "convictions" which defense counsel introduced at appellant's trial were not competent evidence. Moreover, since we cannot perceive any reasonable basis for his believing them to be admissible, we also conclude that counsel was "ineffective".

The Commonwealth asserts that defense counsel probably acted reasonably on the basis of what his client told him. Even if it were established, however, that appellant had told his counsel that sentence had been imposed in the manslaughter cases, this would not have justified bringing out the convictions on direct examination without first verifying their finality, either by checking with appellant's counsel at the earlier trial or by checking the court records. Thus, counsel's action at trial can most easily be explained by a lack of preparation. Such "explanation" does not constitute a "reasonable basis". See Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 610-11, 235 A.2d at 356.

Appellant's case rested squarely on the strength of his own testimony. Accordingly, his counsel's action

[ 455 Pa. Page 213]

    in bringing out the incompetent impeachment evidence was clearly prejudicial. As we have already concluded that this action constituted ineffectiveness, appellant is entitled to a new trial.

Judgment reversed and a new trial granted.


Judgment reversed and new trial granted.

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