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COMMONWEALTH PENNSYLVANIA v. HOWARD L. COBB (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
HOWARD L. COBB, APPELLANT



No. 254 March Term, 1977, Appeal from the Judgment of Sentence imposed November 4, 1976, of the Court of Common Pleas, Criminal Division, Dauphin County, at Nos. 622, 623 of 1975.

COUNSEL

Frederic G. Antoun, Jr., Assistant Public Defender, Harrisburg, for appellant.

LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Price, J., joins. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 258 Pa. Super. Page 93]

This is an appeal from the judgment of sentence imposed following appellant's conviction of robbery*fn1 and simple assault.*fn2 Appellant contends, inter alia, that the trial court erred in permitting the Commonwealth to introduce appellant's prior convictions for impeachment purposes.*fn3 We agree and reverse.

The incident giving rise to the charges took place in Harrisburg on December 30, 1974. At that time an undercover narcotics agent, Frank Brinser, was driving around Harrisburg attempting to make buys of controlled substances. Outside of the "Three Lucky Dots" bar, a contact was made with one Michael Johnston. Johnston and Brinser entered the bar where Brinser was to purchase drugs from one Jeffrey Clark. Brinser and Johnston proceeded back to the restroom, where Clark was to join them. At this point the testimony is conflicting, but the Commonwealth's evidence showed the following sequence of events. After Clark, Johnston, and Brinser all met in the restroom, Johnston left. Appellant then entered the room and confronted Brinser. Clark remained in the rear of the room. Appellant allegedly demanded money from Brinser. Appellant grabbed $150 from Brinser and began hitting Brinser in the face. Brinser stated that he could see two men blocking the exit from the restroom. He also testified that as the severe beating continued with blows to his head, he feared for his life. He then pulled a revolver and shot Appellant Cobb twice in the midsection at point blank range, thus terminating the confrontation.

[ 258 Pa. Super. Page 94]

As a result of this incident, Clark and Johnston were tried together and convicted of robbery, aggravated assault, and conspiracy. Appellant was tried separately.

Appellant took the stand in his own behalf and presented a report of the incident which differed significantly from that of Officer Brinser. In rebuttal, the Commonwealth was permitted, over objection, to introduce the prior convictions in order to impeach appellant's credibility. This constituted error.

The determination of whether or not to permit impeachment in this manner rests within the sound discretion of the trial court. Commonwealth v. Smith, 240 Pa. Super. 212, 361 A.2d 862 (1976). Guidelines for the exercise of that discretion are laid out in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). A threshold determination must be made with respect to whether or not the prior conviction was for a crime involving dishonesty or false statement. If it does, the trial judge should then consider the following factors as enunciated by the Supreme Court in Bighum :

"the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction. This last factor is of critical importance. 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." Id., 452 Pa. at 567, 307 A.2d at 263 (emphasis added) (citation omitted).

We have since reiterated the position that the most important factors to be weighed are the potential prejudice of introducing the convictions and the necessity of the defendant taking the stand in order to defend himself. Commonwealth v. Flores, 247 Pa. Super. 140, 371 A.2d 1366 (1977). ...


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