No. 511 October Term, 1975 Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 947-948, April Session, 1974.
John W. Packel, Asst. Defender, and Vincent J. Ziccardi, Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Asst. Dist. Atty., and F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion. Spaeth, J., files a dissenting opinion.
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This is an appeal from the judgment of sentence in the Court of Common Pleas of Philadelphia County, Criminal
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Division, by the defendant-appellant, Charles Campbell, after conviction by a jury of terroristic threats and rape; and from the denial of post-trial motions.
During the trial the prosecutrix testified that she met the defendant on the street on March 14, 1974, and proceeded to a party with him in a private residence. After the party the prosecutrix, another woman, the owner of the residence at which the party was held (a male individual known as "Tiny"), Tiny's male cousin, and the defendant entered an automobile operated by Tiny's cousin. The prosecutrix testified that she entered the vehicle because she thought she was going to be transported to her home. Contrary to her wishes, the male occupants of the vehicle purchased some beer and proceeded to a park where the occupants of the vehicle talked and drank beer. After the prosecutrix made known her wish to return home, the vehicle was driven from the park and the other female taken home. In so doing the driver of the vehicle passed the home of the prosecutrix. Sensing that she might be in danger the prosecutrix attempted to jump from the vehicle but was prevented from doing so by the male occupants of the car. The car then proceeded to a taxi cab lot where the defendant informed the prosecutrix that he desired to have sexual relations with her. The defendant then placed a dog chain around her left hand and dragged her from the vehicle. The other occupants of the vehicle were directed by the defendant to drive away and to return to the place later. After the vehicle departed the defendant produced a knife and threatened to kill the prosecutrix if she failed to co-operate with him. He then pushed her to the ground and forced her to have intercourse with him. Later the vehicle returned and the prosecutrix was taken home.
The defendant's trial began on July 15, 1974. On July 22, 1974, he was convicted by a jury of rape and terroristic threats. He now contests the conviction on two grounds, claiming that the trial judge erred in ruling
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that the Commonwealth could impeach any testimony given by the defendant, if he took the stand, by introducing a prior conviction for aggravated robbery and in permitting a medical records librarian from Philadelphia General Hospital to testify as to a finding of spermatozoa in the prosecutrix' vagina after the incident. The defendant presented a defense through various acquaintances of defendant who testified to the prosecutrix' bad reputation and also presented "Tiny" who testified that the prosecutrix voluntarily left the vehicle at the scene of the alleged crime. The defendant did not testify himself.
The general rule is that the Commonwealth may introduce into the record evidence of prior convictions to attack the credibility of a defendant who testifies in his own behalf. Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), cert. denied, 368 U.S. 945, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961). However, in the case of Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), the Supreme Court held that this rule is not absolute and that under the proper circumstances a trial court could refuse to allow the Commonwealth to impeach a defendant's testimony by introducing the record of his prior convictions. In that case the Court states that:
"Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to the introduction of prior convictions . . ."
Pursuant to this reasoning the Court held that a trial court had discretion as to whether or not to allow the Commonwealth to impeach a defendant's testimony by use of prior convictions. The salient factors to be considered in exercising this discretion are the criminal record, his age and circumstances, and the extent to which it is more important to the search for truth in a particular case for the ...