No. 801 April Term, 1978, Appeal from the Judgment of Sentence entered on February 23, 1978, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at No. CC7703722A.
Patrick McFalls, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Wieand and Hoffman, JJ.
[ 273 Pa. Super. Page 390]
The only issue properly raised in this appeal is whether the trial court abused its discretion by a determination during trial that four prior robbery convictions would be received to attack appellant's credibility if he testified.*fn1 We conclude that it was an abuse of discretion and reverse.
[ 273 Pa. Super. Page 391]
At or about 1:30 o'clock, A.M., on May 17, 1977, Janet and Robert Richards had alighted from their vehicle and were standing in the driveway of their home when they were assaulted and robbed by three black men. Richards was injured while struggling with one of the robbers. Taken from him while he was held on the ground were credit cards and four hundred dollars ($400) in currency. Two rings were taken from Mrs. Richards, one of them having been chewed from her finger after she had been thrown to the ground. Mrs. Margaret Smith, a guest of the Richards, escaped and ran to the home of a neighbor. Appellant was identified by the victims from a photographic display after appellant had been arrested on other charges.
When, at trial, the Commonwealth's intention to use four prior robbery convictions to attack appellant's credibility became apparent, an evidentiary hearing was held outside the presence of the jury. It was demonstrated that four convictions had been obtained in 1970, for crimes occurring in 1967 and 1969. Appellant had been incarcerated by virtue thereof until March, 1977. He told the trial judge that he wanted to testify but would not do so if the prior convictions were held to be admissible. When asked about the nature of his testimony, appellant told the court that he would offer a general denial that he had robbed the Richards or had ever seen them. The court concluded that inasmuch as the verdict would be dependent upon the credibility of the victims and the credibility of appellant, it was important that the jury know of appellant's prior convictions in order to make an accurate assessment of his credibility.
Whether or not to admit prior convictions to impeach credibility is discretionary with the trial court. In order to provide for a meaningful exercise of that discretion, the Supreme Court in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), provided for a balancing test which gives consideration to: "the age and nature of the prior crimes; the length of the criminal record; the age and
[ 273 Pa. Super. Page 392]
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."
In Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978), these factors were refined, and trial courts were directed to consider the following: "1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecution's case and the prosecution's need to resort to this evidence as compared with the availability to the ...