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filed: June 14, 1985.


Appeal from the Order August 24, 1983 in the Court of Common Pleas of Lawrence County, Civil No. 896 of 1976.


Charles W. Garbett, Ellwood City, for appellant.

John M. Silvestri, Pittsburgh, for appellees.

Olszewski, Hester and Shiomos,*fn* JJ.

Author: Olszewski

[ 343 Pa. Super. Page 366]

In this case, Carlson Mining Company, appellant-plaintiff below, appeals the grant of a new trial to Charles Barletto, appellee-defendant below. Appellant argues that the court improperly based its grant of a new trial on grounds not preserved by objection and brief; that the grounds are improper for the granting of a new trial; and that the trial court's original error, if any, was rendered harmless.

The facts are these. Appellant agreed to sell coal on credit to Robert Todd, one of the defendants in the original action.*fn1 Appellant was not paid and subsequently, sued Appellee Charles Barletto, among others, claiming that his misrepresentations induced Appellant to extend credit when he knew or should have known that the purchaser would not pay.*fn2

At trial, counsel for Appellant asked Appellee Barletto whether he had ever been convicted of a crime. After objection and sidebar, the court allowed the question; the answer was that Barletto had been convicted two years

[ 343 Pa. Super. Page 367]

    earlier of conspiracy to transport stolen goods in interstate commerce. Subsequently the president of Appellant, when cross-examined, admitted to a conviction for armed robbery in 1963. The court cautioned the jury that these convictions could be considered only on the issue of witness credibility. The jury returned a verdict for Appellant for $68,000; Appellant had demanded $135,000 in its complaint.

On Appellee's motion, the court granted a new trial, stating that allowing cross-examination of Barletto as to his conviction was error.*fn3 There were no other reasons given for the grant.

Our standard of review for the grant of a new trial requires us to examine the reasoning of the court: absent manifest abuse of discretion or an error of law, we will not disturb the decision of the lower court. Giambra v. Aetna Casualty and Surety Co., 315 Pa. Super. 231, 461 A.2d 1256 (1983). Finding no manifest abuse of discretion, we turn to whether the court below committed an error of law.

An examination of the record shows counsel for Appellee did not properly preserve, on the record, any objection to the question other than that of prejudice. Therefore, if the court relied on a reason other than prejudice in awarding a new trial, it erred, since a court may only rule on questions preserved and presented to it by a litigant. Carnicelli v. Bartram, 289 Pa. Super. 424, 433 A.2d 878 (1981). The court relied on two reasons: failure of Appellant to document the finality of the conviction, and prejudice to Appellee exceeding probative value of the evidence. The court could not properly hold on the first issue. Our decision thus turns on whether the court's decision that the evidence should have been excluded, based on prejudice to Appellee, is correct as a matter of law.

[ 343 Pa. Super. Page 368]

    is a subset of character evidence generally, we see no reason under our cases why prior convictions may not be used in civil cases to impeach witness credibility.*fn7

The question remains as to when we should allow the use of convictions to impeach. The major concern in using criminal convictions to impeach credibility is that the jury will misapprehend the use for which such evidence is advanced. There is prejudice inherent in permitting prior convictions to be used to impeach the credibility of the criminal defendant:

The most troublesome aspect of impeachment by evidence of conviction if presented when the witness is himself the accused in a criminal case . . . . There is apparent a growing uneasiness that impeachment in this form not only casts doubt upon his credibility "but may also result in casting such an atmosphere of aspersion and disrepute about the defendant as to convince the jury that he is a habitual lawbreaker who should be punished and confined for the general good of the community." Richards v. United States, 89 U.S.App.D.C. 354, 357, 192 F.2d 602, 605 (1951).

[ 343 Pa. Super. Page 370]

Advisory Committee's Note to 1971 Draft of the Federal Rules of Evidence, 10 Moore's Federal Practice Sec. 609.01 (1982).

Our Supreme Court has laid down guidelines for criminal proceedings, but has never addressed the issue in a civil case. However, the federal courts have.*fn8

The federal courts apparently use the same standard in civil cases as they do in criminal cases. For example, in United States v. Mahone, 537 F.2d 922 (7th Cir. 1976), the Court of Appeals for the Seventh Circuit stated the rules for admitting prior convictions in a criminal case were:

[ 343 Pa. Super. Page 371]

(1) The impeachment value of the prior crime.

(2) The point in time of the conviction and the witness' subsequent history.

(3) The similarity between the past crime and the charged crime.

(4) The importance of the defendant's testimony.

(5) The centrality of the credibility issue.

The Court of Appeals for the Fifth Circuit, in United States v. Preston, 608 F.2d 626 (5th Cir. 1979), cited the Mahone factors and added, "The danger that a jury will think, 'once a criminal, always a criminal' makes it important that the Trial Judge focus on prejudice as well as probative value." 608 F.2d at 639.

The latest civil case in the federal courts setting forth the standards to be used is Lenard v. Argento, 699 F.2d 874 (7th Cir. 1983). In this civil rights case, the Court of Appeals for the Seventh Circuit cited Mahone and stated, "The determination whether the evidence of a prior conviction is more probative than prejudicial is within the trial court's discretion." 699 F.2d at 895. The court disallowed the use of a conviction to impeach the plaintiff-witness, because the conviction was 24 years old, occurred when the witness was a juvenile, and was unrelated to his truth-telling capabilities or the events in the action. Id. at 895.

Drawing from the federal cases, we conclude that the same standard should be used in a civil action to determine whether a conviction should be used to impeach as in a criminal action. Accordingly, the court below correctly used the test enunciated in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). We will not disturb its determination that, under the Bighum-Roots factors, the evidence was more prejudicial than probative.*fn9

*fn* Judge Thomas N. Shiomos, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

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