NO. 1669 PHILADELPHIA 1983, Appeal of the Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal, at No. 81075401 & A.
Scott D. Keller, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
McEwen, Del Sole and Popovich, JJ.
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Appellant was convicted of third degree murder and possessing instruments of crime. Following the denial of post-verdict motions, Appellant was sentenced to eight to eighteen years imprisonment and a consecutive term of five years probation. Appellant raises several issues of ineffective assistance of counsel in the instant appeal. Appellant also contends that the trial court erred in allowing the Commonwealth, on rebuttal, to impeach him through use of a prior burglary conviction. After a thorough review of the record, we find that we need not consider the ineffective assistance of counsel issues since we find that the trial court erred in admitting Appellant's prior conviction for purposes of impeachment. Accordingly, the judgment of sentence is reversed and the case is remanded for a new trial.
At trial, the Commonwealth's case in chief primarily consisted of the testimony of two eyewitnesses who stated that Appellant and the victim had an argument at a social club. The witnesses testified that Appellant left the club's premises after the argument but later returned at which time the Appellant and victim again argued resulting in the shooting of the victim by Appellant. The remainder of the Commonwealth's case in chief was comprised of the testimony
[ 337 Pa. Super. Page 37]
of police officers, doctors and other persons involved in the investigation of the shooting.
The sole evidence offered by Appellant was his own testimony. Appellant testified that the shooting was justified because the victim was armed at the time and because the victim had threatened Appellant with a gun during their first argument at the social club. Also, Appellant testified that the butt of a gun was sticking out of the victim's jacket pocket immediately prior to the shooting. The Commonwealth presented the testimony of a witness on rebuttal who was present at the social club at the time of the shooting but was not an eyewitness. That witness stated that he had seen no guns at the social club prior to the shooting. The Commonwealth also introduced Appellant's prior burglary conviction which was admitted for impeachment purposes, over objection, by the trial court.
In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), the Supreme Court ruled that a defendant's prior conviction could only be used by the Commonwealth on rebuttal solely to attack the credibility of a defendant who has elected to testify in his own behalf. The court found that only crimes involving dishonesty and false statements could be used for impeachment. In addition, the Bighum Court noted that there are certain considerations a trial court must apply in determining the admissibility of a prior conviction. Specifically, the trial court must consider the age and nature of prior crimes, the length of the criminal record, the age and circumstances of the defendant and the extent to which it is more important to search for the truth in a particular case for the jury to hear the defendant's testimony than to know of prior convictions. As to the latter consideration, the Bighum Court stated:
This last factor is of critical importance. Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to prior convictions. Or, where the prior conviction is not so critically important to the Commonwealth's ...