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COMMONWEALTH PENNSYLVANIA v. JOHN ELWOOD KEARSE (03/02/84)

filed: March 2, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN ELWOOD KEARSE, JR., APPELLANT



NO. 300 Harrisburg, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, Criminal, at No. 1277 CA 1981.

COUNSEL

John G. Bergdoll, III, York, for appellant.

Floyd Paul Jones, Assistant District Attorney, York, for Commonwealth, appellee.

McEwen, Johnson and Popovich, JJ. Popovich, J., files a dissenting statement.

Author: Mcewen

[ 326 Pa. Super. Page 3]

After a jury had by verdict determined that appellant was guilty of robbery and trial counsel had filed post-verdict motions, the trial court, upon the pro se petition of appellant, appointed new counsel who filed amended motions for a new trial and in arrest of judgment which included allegations of ineffectiveness of trial counsel. Following the denial of these motions, appellant was sentenced to a term of imprisonment of from four and one-half years to nine years. This direct appeal followed. We affirm.

Appellant contends that (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred in refusing to charge the jury that they could find appellant guilty of theft only; and (3) the trial court erred in ruling that a prior conviction could be used to impeach his credibility. Appellant also contends that trial counsel was ineffective for (1) failing to file pre-trial motions to suppress identification evidence; (2) failing to request a pre-trial line-up; and (3) failing to object when an expert witness allegedly testified beyond the scope of his expertise. The distinguished Judge John F. Rauhauser, Jr., in his opinion denying the post-trial motions, has so ably discussed these claims of error that we only address the contention that the trial court erred in ruling that the prior conviction of appellant in 1976 was admissible to impeach his credibility.

Rutter's Farm Store, located in York, Pennsylvania, was robbed on the afternoon of July 13, 1981. The manager of the store testified that the robbery was perpetrated by a black male who approached the register area, placed a bag of Purina dog food on the counter and grabbed him from behind, holding what seemed to be a gun against his back.*fn1 When the robber ordered the manager to remove the cash from the register, he handed approximately $89.00 to his assailant, who then fled on foot. The Commonwealth produced testimony from a Pennsylvania State Police Trooper that a number of fingerprints found on the dog food bag

[ 326 Pa. Super. Page 4]

    that had been left on the counter belonged to appellant.*fn2 Although the store manager was unable to positively identify appellant from an array of eight photographs, he was able to identify appellant at both the preliminary hearing and at trial.

Appellant defended by the presentation of an alibi defense. Two defense witnesses, a roommate and another acquaintance of appellant, testified that appellant was home sick one day in July, but neither witness was able to recall the exact date of that illness. The acquaintance, although unable to state with certainty if the afternoon he spent with appellant was July 13, 1981, testified that he had visited appellant on the day that he was ill and had spent the major portion of the afternoon with appellant. Appellant, himself, testified that he had been home sick on the afternoon of the robbery and that he had not only purchased dog food two days prior to the robbery from Rutter's Farm Store, but had also on that occasion handled a number of bags on the shelf. Appellant further stated on direct examination that he recalled the date of his illness and knew it to be July 13, 1981, the date of the robbery. It was not until after the assistant district attorney had cross examined appellant upon his alibi, his illness and his explanation of the presence of his fingerprints on the dog food bag that defense counsel requested at side bar a determination of whether the Commonwealth could on rebuttal introduce evidence of the prior conviction of appellant. After the presentation of argument by both counsel on the admissibility of the prior conviction for the limited "purpose of questioning the credibility of [appellant] as a witness", the trial judge ruled:

[I]t seems to me that the question of credibility is one of particular importance . . . . [T]he defendant does have witnesses and did produce them and, really, the only witness the Commonwealth has here is the identification of the eyewitness who was the victim of this particular

[ 326 Pa. Super. Page 5]

    incident and his testimony on cross examination has been attacked as to credibility and reliability.

Therefore, under all the circumstances, the court will permit the introduction of this record as has been identified for the sole purpose of questioning the credibility and we will give appropriate instructions to the jury to that effect. (N.T. 93-94).

The Commonwealth did not, however, resort to the introduction of rebuttal evidence of the prior conviction since the ruling caused defense counsel to undertake the redirect examination of appellant which included the following interrogation:*fn3

Q. Back in 1976, do you remember pleading guilty to something?

A. Yes.

Q. That was ...


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