Appeal from Judgment of Sentence March 11, 1983 in the Court of Common Pleas of Mercer County, Criminal No. 51 Criminal 1982.
Raymond H. Bogaty, Public Defender, Grove City, for appellant.
Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.
Spaeth, President Judge,*fn* and Brosky, Rowley, Wieand, McEwen, Cirillo, Olszewski, Montemuro and Tamilia, JJ. Spaeth, President Judge, files concurring opinion, in which Wieand and Tamilia, JJ., join. McEwen, J., files concurring and dissenting Statement.
[ 350 Pa. Super. Page 597]
This matter comes before this court en banc on appeal from a judgment of sentence for retail theft.*fn1 The relevant events occurred on January 5, 1982, at 7:11 p.m., when appellant, James Dean Lewis, was seen leaving Stambaugh's Hardware Store in Hermitage, Pennsylvania, without paying for a chain saw he had in his possession. At approximately 8:00 p.m., appellant was arrested at the scene by officers of the Hermitage Police Department, but he was not apprised of the reasons for his arrest. Soon after his arrival at police headquarters, appellant blurted out the following statement: "I didn't take no chain saw from Stambaugh's." Although appellant was in the custody of police when the statement was made, he was not, however, subjected to police interrogation at the time. Appellant was arraigned before a District Justice at 9:45 a.m. the following day.
Prior to trial, appellant filed a motion in limine requesting that the Commonwealth not be allowed to introduce his prior burglary conviction as impeachment evidence. The motion, however, was denied and he was convicted of retail theft. Following the denial of appellant's post verdict motions, he was sentenced to six months' imprisonment. Appellant was paroled on April 13, 1983.
Appellant now raises three points of error. He contends that the trial court: (1) erred in permitting the Commonwealth to use appellant's prior burglary conviction for impeachment purposes; (2) erred in failing to suppress an inculpatory statement made by appellant prior to his arraignment in violation of the Davenport rule; and (3) erred in refusing to order a new trial based on after-discovered evidence. We will address these arguments seriatim.
Although it is generally well accepted as a fundamental tenet of American jurisprudence that an accused has a right
[ 350 Pa. Super. Page 598]
to testify as a witness in his own behalf, it is also equally well established that the opposing party may impeach this witness by introducing before the trier of fact the individual's prior conviction(s). Commonwealth v. Roots, 482 Pa. 33, 35, 393 A.2d 364, 365 (1978) (Nix, J.). Whereas evidence of a prior conviction is offered so that the jurors may use it in evaluating a witness's credibility, this result does not always follow. Very often, jurors unfairly interpret this evidence as an indication of the accused's propensity to commit a crime. The likelihood of this event occurring, however, has not prevented the courts of this Commonwealth from permitting the use of such evidence, at least in a limited sense.*fn2
In the instant case, appellant argues that he was foreclosed from testifying at trial because of the lower court's decision to allow appellant's prior conviction into evidence for impeachment purposes. Appellant believed that if he had opted to testify, the jurors would have been prejudiced against him purely because of this evidence. We disagree with this position.
It has been decided by our Pennsylvania Supreme Court in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), that an accused was not denied a fair trial under the Due Process Clause of the Fourteenth Amendment merely because a prior conviction would have been used against him as rebuttal evidence if he had decided to take the stand during his trial and testify in his own defense. Notwithstanding this rule, the court, however, has been mindful of the inclinations of the average juror to associate prior convictions with an accused's ...