No. 3023 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County at No. 2231-2235 April Term, 1978
William Lee Akers, Philadelphia, for appellant.
Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files a dissenting opinion.
[ 274 Pa. Super. Page 562]
This is an appeal by Joseph Washington following conviction of two counts of robbery, two counts of simple assault and criminal conspiracy. His post trial motions were denied. Washington alleges six errors on appeal. We find no error and affirm the judgment of sentence.
The Commonwealth's version of the escapade which resulted in the charges against the defendant begins after midnight on June 23, 1978. Appellant Washington and Walter Goodman rang the doorbell at 1721 Bainbridge Street, Philadelphia. Reginald Brown responded, and knowing Washington and Goodman, let them in. Brown resided in the premises with his girlfriend, Kim Tate, and his younger brother Darryl. After some brief conversation in
[ 274 Pa. Super. Page 563]
the living room Brown was suddenly faced with three pistols, two in the hands of Goodman and one held by appellant, and told "this is a robbery". A search of the house was begun and the following incidents occurred at various places on the first and second floor of the premises: Reginald Brown was forced to lie on the floor; he was locked in a closet; he was struck in the face with a pistol; his stereo, two televisions and some of his clothing were taken; his car keys were taken and his personal goods were loaded in his car by defendant and Walter Goodman who sought to take the vehicle. Darryl Brown was struck in the face with a pistol and tied to Kim Tate with a telephone cord. Kim Tate, in addition, was taken into a separate room where she was touched on the breasts and vagina by Joseph Goodman. With the exception of the last incident, all events took place with appellant and his confederate working in close concert. The episode ended in the arrest of Goodman and appellant when the police came upon them during their efforts to get Reginald Brown's car started.
Error is claimed in the court's permitting police officer Freeman to respond to a question by the district attorney which asked if he had "heard about" a silver plated pistol involved in the robbery before the weapon came into his possession six days after the arrest. Argument is made that the purpose of this question and answer was to show that the pistol (C-2) was in fact used in the robbery, and that it linked the defendant to the firearm.
However, the witness simply stated "yes, I did," that is, that he did hear about a silver plated pistol being used in the robbery without identifying the source or what was said.
The record contains independent proof concerning the pistol and its discovery as follows:
(1) That Officer Freeman received the revolver from Reginald Brown on January 29th (testimony of Officer Freeman).
[ 274 Pa. Super. Page 564]
(2) That the revolver was used during the course of the robbery (testimony of Reginald Brown).
(3) That the revolver was used during the course of the robbery and it was later found in the house underneath the sofa, and given to Reginald Brown, who gave it to the police (testimony of Kim Tate).
The witness' statement merely confirmed what was shown by independent evidence and was harmless beyond a reasonable doubt.
Contrary to appellant's claim we find no error in the trial court's decision to permit the Commonwealth to show defendant's prior conviction in order to attack his credibility. Com. v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), instructs us as to some of the factors which the trial court should consider in making the determination as to the admissability of a prior conviction for the purpose of impeachment. One of the considerations, crucial here, is whether the prosecution had a "legitimate reason for discrediting [the defendant] as an untruthful person."*fn1 Here, the defense in the course of cross-examining the chief prosecution witness sought to suggest that he had been engaged in criminal activity by asking if he had sold Walter Goodman some marijuana. He was further asked whether Goodman claimed that the witness "swindled" him. Further, during the Bighum*fn2 discussion, prior to defendant's testimony, counsel for the defendant stated to the court in summarizing the defense:
Basically, his defense is that this was a disagreement between all of the parties arising out of a business transaction which had gone astray, to which they felt that Mr. Brown had defrauded them. They were there to get ...