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filed: October 21, 1983.


No. 280 Harrisburg 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County at No. 921 C.A. 1980.


Richard Keith Renn, Assistant Public Defender, York, for appellant.

Sheryl Ann Dorney, First Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.

Wickersham, Cirillo and Watkins, JJ.

Author: Wickersham

[ 321 Pa. Super. Page 282]

A York County jury returned verdicts of guilty on charges of burglary and theft against Philip S. Toomey in a trial before the Honorable Emanuel A. Cassimatis. The principle evidence against Toomey was presented by Oscar Buckingham who had been employed as a truck driver for one Richard Kinard for approximately six years. On July 18, 1980, he arrived at his place of work at about ten minutes before 6:00 a.m. He testified:

A. I arrived and got out of the car right in front of the office door and I laid my briefcase on the hood of the car to get my keys out to open the office door. I noticed there was somebody in the office. I opened the door up and, at that time, the defendant came out of the inner office with a T-shirt in his hand. He hit the door to the garage with his right shoulder.

A. I seen the office was, there was papers on the floor and the filing cabinet drawers were out of the filing cabinet.

Q. Now, when did you first recognize this individual?

A. When he came through the office door, the inner office door into the outer office.

Record at 3-5.

Buckingham further testified that he had known Philip Toomey when Toomey had been employed for about five months as a maintenance garage worker for Kinard Trucking. Record at 11. He definitely identified the person that he observed in the office that morning as Mr. Toomey. Record at 12. He described the office area as having boxes, papers, and filing drawers on the floor. He called the police

[ 321 Pa. Super. Page 283]

    and his employer. He testified that calculators and other office equipment were missing from the various desks and later were found in a box on the floor just inside the office door. Record at 12-14.

Ray Wells testified that he is terminal manager for Richard L. Kinard and that, on July 18, 1980, he came to the office building in response to a call from Mr. Buckingham. He testified that when he came into the office area, he found "the outside door was jimmied, broke open." Record at 20. He further testified that he found three calculators, a radio, and a bag full of change that came out of the Coke machine packed in a box. There was $101 missing from the cash box. Record at 21. Wells testified that when he left the terminal the preceding evening at 5:00 p.m., everything was in order and no one had permission to be in the office area at the time indicated. Record at 21-22.

Following Toomey's jury conviction, post-verdict motions were filed, briefed, and on August 3, 1981, denied. On September 18, 1981, Judge Cassimatis sentenced Philip S. Toomey to undergo imprisonment for a period of not less than six nor more than twelve months, to pay the costs of prosecution, and to make restitution. This direct appeal followed with trial counsel appearing as appellate counsel as well. One issue has been presented for our consideration, as follows:

Did the Lower Court err when it ruled that the Commonwealth could introduce Defendant's prior record of burglaries to impeach Defendant?

Brief for Appellant at 4.

During the trial of the instant case, the Commonwealth sought to prove six burglary convictions in 1977 against the defendant. An extended colloquy took place among counsel for the Commonwealth, counsel for the defendant, and the court. Record at 36-45. Judge Cassimatis considered the test set forth in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) where our supreme court held:

[ 321 Pa. Super. Page 284]

Although the statutory law of this jurisdiction expressly prohibits a defendant in a criminal case from being cross-examined as to other crimes he may have committed with two exceptions,*fn6 our decisional law has made it clear that the Commonwealth may introduce in rebuttal evidence of prior convictions to attack the credibility of a defendant who has elected to testify in his own behalf.

While admittedly the state has a legitimate interest to serve in showing that a defendant-witness is not worthy of belief, we cannot be unmindful of the tendency of a normal juror to accept testimony of prior convictions as a basis for finding a predisposition to commit the crime charged. We attempt to avoid this prejudice first by allowing the defendant the election not to testify without adverse comment, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Commonwealth v. Davis, [452] Pa. [171], 305 A.2d 715 (1973) (decided May 23, 1973), and, in the event that he chooses to testify and such evidence is introduced, by making a cautionary instruction available to the defendant. I Wharton Criminal Evidence ยง 264 (13th Ed. 1972). However, we recognize that even with such safeguards, the possibility of unfairness in a given case may still be present and it is to that situation that we now address ourselves.

Since the avowed purpose of using prior convictions in rebuttal is to cast doubt upon the defendant's veracity generally as a witness, it ...

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