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COMMONWEALTH PENNSYLVANIA v. LESTER ROY NENNINGER (12/19/86)

filed: December 19, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
LESTER ROY NENNINGER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Cumberland County, Criminal Division, at No. 774 Criminal, 1984.

COUNSEL

Gary Lysaght, Lemoyne, for appellant.

Merle L. Ebert, Jr., Harrisburg, for appellee.

Wickersham, Brosky and Watkins, JJ.

Author: Brosky

[ 359 Pa. Super. Page 447]

This is an appeal from the judgment of sentence*fn1 entered pursuant to a jury trial in which appellant was found guilty of rape*fn2 and involuntary deviate sexual intercourse.*fn3

[ 359 Pa. Super. Page 448]

Four issues are presented for our review: (1) whether the trial court properly allowed the admission of impeaching evidence consisting of two of appellant's past crimen falsi crimes; (2) whether the trial court properly excluded evidence relating to the victim's past sexual conduct under the Rape Shield Law; (3) whether the closing remarks of the District Attorney were a proper discussion of the evidence and the reasonable inferences to be drawn therefrom; and (4) whether the mandatory sentencing guidelines relating to the instant case are constitutionally valid. Upon consideration of the trial court opinion and briefs by counsel, we affirm the decision of the trial court.

Appellant's first contention is that the trial court should not have permitted the prosecutor to introduce testimony of appellant's convictions for burglary in 1979 and 1982. The Pennsylvania Supreme Court, in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), held that it is within the discretion of the trial court to decide whether crimes involving dishonesty or false statement may be used in a particular case to cast doubt upon the defendant's veracity generally as a witness. In Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978), the Supreme Court set out the considerations governing the admissibility of prior convictions for impeachment purposes. These are: (1) the degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; (2) the likelihood, in view of the nature and extent

[ 359 Pa. Super. Page 449]

    of the prior record, that it would have a greater tendency to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; (3) the age and circumstances of the defendant; (4) the strength of the prosecution's case and the prosecution's need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and (5) the existence of alternative means of attacking the defendant's credibility. Appellant claims that the prosecution failed to satisfy points 4 and 5, because appellant had no means, other than his own testimony, to defend himself, and the Commonwealth had a strong case and numerous witnesses to testify on the victim's behalf. We disagree.

It is true that the Commonwealth had several medical personnel along with technical evidence to testify on behalf of the victim. In the instant case, though, appellant's defense rested upon the theories that the victim consented to having sexual relations with him and appellant's perception as to the victim's age, not a denial that the parties engaged in sexual relations at all. Additionally, both sides presented witnesses; however none was an eyewitness to the incident. Thus, we had a "one on one" situation where it became a matter of the victim's credibility versus that of the accused. Appellant brought forth witnesses to impeach the victim's credibility. Therefore, it was crucial to the Commonwealth's case to be permitted to impeach the credibility of appellant. Courts are more prone to find an abuse of discretion where the crime used for impeachment is the same crime which forms the basis for the present charge. Commonwealth v. Claypool, 317 Pa. Super. 320, 464 A.2d 341 (1983).

In the instant case, the prior convictions were for burglary, a crime involving dishonesty, Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), which were used to discredit ...


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