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filed: July 25, 1980.


No. 1688 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Nos. 528-29, July Term, 1977.


John W. Packel, Chief, Appeals, Assistant Public Defender, Leonard Sosnov, Assistant Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ. Spaeth, J., filed a dissenting opinion.

Author: Price

[ 280 Pa. Super. Page 4]

On February 24, 1978, a jury found appellant guilty of rape*fn1 and aggravated assault.*fn2 Post-trial motions were denied, and appellant received a sentence of four to fifteen years imprisonment for the rape conviction and a suspended sentence for the aggravated assault conviction. He brings this appeal alleging errors by the trial judge in conducting the voir dire, admitting evidence, instructing the jury, and overruling his objection to the prosecutor's closing argument. We find these contentions lack merit, and therefore, we affirm the judgment of sentence.

[ 280 Pa. Super. Page 5]

Briefly stated, the testimony at trial revealed the following facts. At approximately 2:00 a. m. on the morning of May 22, 1977, the victim was walking home from a local bar when she was approached from behind by a man who grabbed her, punched her almost knocking her unconscious, and forced her to walk to a nearby vacant garage. Although it was dark and the victim could not see, she felt a sharp instrument pressed to her throat. The man forced her to have intercourse with him and then left the garage. As he was standing outside the garage in the illumination from nearby street lights, he turned to face the victim, who was also leaving the garage, and told her he was sorry, at which point she saw his face for the first time. She recognized him from having seen him once or twice in a nearby bar. After the attack, the victim walked to a nearby gas station from which she summoned the police and gave them a description of her assailant.

On June 26, 1977, while the victim was outside the bar in which she had previously seen her attacker, she spotted appellant and began shouting that he was the one who had raped her. The police arrived at the scene, and Officer William Sammons placed appellant under arrest. Upon searching him, the officer recovered an eight inch folding pocket-type knife.

Appellant's first complaint concerns the admission of testimony of Officer Sammons regarding his discovery of the knife in appellant's pocket and the display of the knife to the jury during the Commonwealth's closing argument. He objects that this evidence was irrelevant and prejudicial because the circumstances were insufficient to justify an inference that the knife taken from him at the time of arrest was the same weapon that had been used in the commission of the crime. We disagree.

It is well established in Pennsylvania that all that is demanded before a weapon may be introduced into evidence is a sufficient foundation revealing circumstances justifying an inference of the likelihood that the weapon was used in

[ 280 Pa. Super. Page 6]

    the course of the crime charged. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973); Commonwealth v. Mangus, 229 Pa. Super. 29, 323 A.2d 398 (1974). The Commonwealth is not required to establish before introduction that the particular instrument was the weapon actually used in the attack. Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976). Appellant argues that the likelihood of the use of the knife, and hence its relevance, was not established because it was seized five weeks after the crime occurred and the victim was unable to testify that the instrument used to force her submission had been a knife.

In testing the relevance of evidence, the courts of this Commonwealth have cited with approval the following definition: "Relevant evidence then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible." Commonwealth v. Shoatz, 469 Pa. 545, 564, 366 A.2d 1216, 1225 (1976); Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976) (both quoting C. McCormick, Evidence § 185 at 437-38 (2d ed. 1972)). The accused's possession of an implement or weapon giving him the means to carry out the crime constitutes some evidence of the probability that he committed the crime and is a relevant part of the Commonwealth's case. Commonwealth v. Bederka, 459 Pa. 653, 331 A.2d 181 (1975); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974) (citing with approval, 1 Wharton's Criminal Evidence § 157 at 289-90 (13th ed. C. Torcia 1972)). As the interval of time between the possession of the instrument of crime and the criminal event lengthens, the probative value of the evidence may become more tenuous, but that consideration is one for the jury to resolve in evaluating the weight of the evidence; the competency of the evidence is not affected. Commonwealth v. Tallon, 478 Pa. 468, 387 A.2d 77 (1978); Commonwealth v. Shoatz, supra. The lack of positive identification that the knife was the actual weapon used likewise affects the weight of the evidence and not its admissibility. Commonwealth v. Ford, supra. A pocketknife is of such a size and character that one may carry it as a matter of

[ 280 Pa. Super. Page 7]

    course. This strengthens the likelihood that appellant would have been carrying the knife at the time of the crime five weeks earlier and supports its relevance.

Of course, the prejudicial impact of the evidence may outweigh its probative value, and the court may be moved to exclude the evidence on this basis. Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); Commonwealth v. Quarles, 230 Pa. Super. 231, 326 A.2d 640 (1974). In determining whether evidence is so remote that the prejudicial effect outweighs the probative value, the court has no fixed standard on which to rely, but must instead consider the nature of the crime, the evidence being offered, and all attendant circumstances. Commonwealth v. Kinnard, 230 Pa. Super. 134, 326 A.2d 541 (1974). The trial judge's determination that evidence is not too remote to be admissible is within his sound discretion and will not be overturned absent an abuse. Id.

Possession of a pocketknife is not such an unusual or damning circumstance that the jury is likely to be inflamed and prejudiced by its proof. It is apparent that many people carry such knives and that appellant's possession, of itself, was not any direct evidence of his guilt. Furthermore, testimony concerning the knife was not emphasized during the course of the four day trial and the knife itself was not even formally introduced into evidence.*fn3 We decline to find that the possible prejudice so outweighed the probative value of this evidence that its exclusion was mandated. No abuse of the trial judge's discretion is indicated on this record.

[ 280 Pa. Super. Page 8]

Appellant's second assignment of error concerns the admission, for impeachment purposes, of his prior conviction for burglary. He claims that the trial judge refused to consider all the factors enunciated in Commonwealth v. Page 8} Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and, thus, employed an improper standard in admitting this testimony. This contention is refuted by the record.

Admitting testimony of a prior conviction for the purpose of impeachment is a matter within the sound discretion of the trial judge. Commonwealth v. Cobb, 258 Pa. Super. 91, 392 A.2d 698 (1978); Commonwealth v. Flores, 247 Pa. Super. 140, 371 A.2d 1366 (1977). Our supreme court set forth guidelines for the exercise of that discretion in Commonwealth v. Bighum, supra, and recently clarified them in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).*fn4 In Bighum, the court stated the considerations as follows:

"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." Commonwealth v. Bighum, supra, 452 Pa. at 567, 307 A.2d at 263.

In Roots, the court explained that these factors are to be used in an attempt to strike a balance between the competing interests of the Commonwealth in showing the defendant-witness' veracity, and of the defendant in avoiding prejudice that may result from jurors assuming that testimony of prior convictions demonstrates predisposition to commit the crime charged. Moreover, the court explicitly stated that the list was not exhaustive or exclusive, but merely illustrative of considerations that should influence the decision.

The instant record reflects that the trial judge was aware of the factors set forth in Bighum. He had a copy of the

[ 280 Pa. Super. Page 9]

    entirely deprived of a defense, and in the instant circumstances, ...

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