No. 216 January Term, 1977, Appeal from the Order of the Superior Court affirming the Judgment of sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, as of December Sessions, 1974, No. 180.
Ronald Schulman, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Gaile McLaughlin, Barthold, Asst. Dist. Attys., Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a concurring opinion. Larsen, J., filed a dissenting opinion.
Appellant was arrested on a Sunday afternoon when he was found alone in the basement of a pawnshop by two Philadelphia police officers responding to a radio call. Hinges on the door to the basement had been broken and eleven bicycles had been moved approximately sixty feet from an opposite wall to a point nearer the door. No burglary tools were found and no vehicle was seen in the vicinity. Following a jury trial, appellant was convicted of burglary and sentenced to eight to twenty years imprisonment. The conviction was affirmed by the Superior Court, without an opinion, and this Court granted review.
Defense trial counsel sought to have the court disallow the introduction of a prior conviction for aggravated robbery. Counsel argued that the five-year-old prior conviction was relatively remote, that appellant had no other available means of defense, and that his credibility could be impeached by less prejudicial means, in the form of allegedly inculpatory statements made to the owner of the premises in question. The application was denied and as a result, appellant did not testify in his own behalf at trial.
The single question to be considered in this appeal is whether the trial court abused its discretion in refusing the application. The right of an accused to testify as a witness in his own behalf is a fundamental tenet of American jurisprudence. It is equally established that witnesses may be impeached by an opposing party. The introduction before the trier of fact of a prior conviction of the witness has long been recognized as an approved method of challenging credibility. Finally, all of our legal principles must conform to our evolving concept of fairness. These precepts are beyond dispute and do not require the citation of authority. The difficulty arises when we are called upon to accommodate
the sometimes competing interests sought to be accomplished by these various principles.
It would be naive to conclude that a lay finder of fact is capable of eradicating the prejudice which results from the knowledge of a witness's prior criminal record.*fn1 Even the most conscientious and dedicated juror's objectivity will be, at least unconsciously, colored by such knowledge. Furthermore, there is serious question as to the true probative value of a prior conviction on the veracity of a witness. It has also been suggested that the rule is based more on tradition than tested behavioral analysis.*fn2 These concerns are magnified where the question is whether the accused who seeks to testify on his own behalf may properly have his credibility attacked because of a prior conviction. Knowledge that his past convictions will be revealed to the jury, if he testifies, may well foreclose his only opportunity to present his version of the occurrence. In any event the serious potential of this evidence for unfairly influencing the jury on the issue of guilt is inescapable.
In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), this Court endeavored to fashion a rule whereby these competing interests could be accommodated in a manner which was fair to both the accused and the prosecution. In Bighum, after rejecting the argument that the Due Process Clause of the Fourteenth Amendment was not offended because a ...