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COMMONWEALTH PENNSYLVANIA v. JOSEPH GORDON (07/02/86)

filed: July 2, 1986.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOSEPH GORDON, APPELLANT



Appeal from the Judgment of Sentence of November 13, 1984, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 83-11-0606, 654, 661 and 668. Before:

COUNSEL

Daniel-Paul Alva, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Rowley, Hester and Lipez, JJ. Hester, J., dissents.

Author: Lipez

[ 355 Pa. Super. Page 27]

In a jury trial, defendant was convicted of two counts of robbery, and one count each of criminal conspiracy and prohibited offensive weapons. After denial of post-verdict motions, defendant was sentenced to concurrent terms of seven to twenty years on the robbery counts, with a concurrent one to two years for criminal conspiracy. In this appeal, defendant contends: (1) the trial judge abused his discretion under Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), by allowing admission of his eight-year-old retail theft conviction and his seven-year-old robbery conviction for the purpose of impeaching his testimony; and (2) the trial judge also erred by allowing the admission of two twelve-year-old burglary convictions for the purpose of impeaching the testimony of one of defendant's two alibi witnesses.

Defendant's second contention can be summarily disposed of. When the Commonwealth seeks to use a prior conviction to impeach the testimony of a defense witness other than the defendant himself, the discretionary balancing test of Commonwealth v. Bighum, supra, does not apply, and the only relevant inquiry is whether the convictions were for crimes involving dishonesty or false statement. Commonwealth v. Pilosky, 239 Pa. Super.Ct. 233, 240, 362 A.2d 253, 257 (1976). Since burglary is a crime involving dishonesty or false statement, Commonwealth v. Gray, 329 Pa. Super.Ct. 347, 354, 478 A.2d 822, 825 (1984), the burglary convictions of the defense witness here were properly admitted to impeach his testimony. Commonwealth v. Pilosky, supra.

Defendant's other claim, that the court erred in admitting his own retail theft and robbery convictions to impeach him, presents a closer question, but we agree with the Commonwealth that the trial judge's decision to admit these convictions was within the range of his discretion as defined by the most recent case law interpreting the scope

[ 355 Pa. Super. Page 28]

    of Commonwealth v. Bighum, supra, and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).*fn1

Defendant relies primarily on Commonwealth v. Williams, 273 Pa. Super.Ct. 389, 417 A.2d 704 (1980), which held that it was erroneous to rule that the defendant's four prior convictions would be admissible to impeach him in a trial for robbery, in which taking the stand himself was the defendant's only potential means of defense. While there is some similarity to Williams in that one of defendant's prior convictions is for the same crime (robbery) as the one for which he was being tried, we believe that defendant's case is much more similar to Commonwealth v. Kearse, 326 Pa. Super.Ct. 1, 473 A.2d 577 (1984), which held that it was not an abuse of discretion to admit a five-year-old robbery conviction to impeach the defendant in a robbery trial, when the defendant had two alibi witnesses and the Commonwealth lacked a straightforward alternative means of attacking the defendant's credibility.

[ 355 Pa. Super. Page 29]

Here, as in Kearse, the defendant presented two alibi witnesses, and only one prior robbery conviction (rather than four as in Williams) was involved. Defendant argues that his two alibi witnesses were uncertain of the date when they saw him, but this is identical to the situation in Commonwealth v. Kearse, supra, 326 Pa. Super.Ct. at 9, 473 A.2d at 581. Thus this case is unlike both Williams and Commonwealth v. Canada, 308 Pa. Super.Ct. 494, 454 A.2d 643 (1983), on which defendant also relies, because the defendants in those cases had no other means by which to defend ...


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