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COMMONWEALTH PENNSYLVANIA v. KENNETH L. OSBORN (06/18/87)

filed: June 18, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH L. OSBORN, APPELLANT



Consolidated appeals from judgments of sentence entered December 30, 1985 in the Court of Common Pleas of Crawford County, Pennsylvania Nos. 1985-106 and 1985-161

COUNSEL

Leonard Ambrose, Erie, for appellant.

Douglas W. Ferguson, Assistant District Attorney, Meadville, for Commonwealth, appellee.

Del Sole, Kelly and Popovich, JJ.

Author: Kelly

[ 364 Pa. Super. Page 507]

This case involves the consolidated appeals of appellant, Kenneth Leroy Osborn, from his conviction, after a jury trial on May 14, 1985, of terroristic threats (18 Pa.C.S.A. § 2706), and his conviction, after a jury trial June 11-12, 1985, of rape (18 Pa.C.S.A. § 3121). These convictions arose from entirely separate criminal episodes. However, because both appeals involve identical questions regarding the admissibility of evidence of appellant's prior perjury

[ 364 Pa. Super. Page 508]

    conviction and the legality of the sentences imposed, they have been consolidated on appeal pursuant to Pa.R.A.P. 513.

The terroristic threats conviction arose from appellant's threat to burn down the barn of a man who had testified on behalf of a neighbor of the appellant, against whom appellant had instituted summary civil proceedings before a district justice. Appellant denied threatening the former witness. The jury, however, found the appellant guilty. Post-verdict motions and supplemental post-verdict motions were denied.

The rape conviction arose from appellant's use of a shotgun to compel his girlfriend's sister-in-law to engage in non-consensual intercourse. Appellant admitted having intercourse with the victim, but claimed it occurred earlier in the evening, at a different location, and that it was consensual. The jury, however, found the appellant guilty. Post-verdict motions and supplemental post-verdict motions were denied.

Following a sentencing hearing on December 30, 1985, appellant was sentenced to a term of imprisonment of ten (10) to twenty (20) years on the rape conviction and a concurrent term of two (2) to four (4) years on the terroristic threats conviction. A motion to modify sentence was filed and denied. These timely appeals followed.

On appeal, appellant contends that: the trial court erred (in both cases) by permitting the Commonwealth to use the appellant's prior perjury conviction for rebuttal purposes; the trial court erred (in the rape case) by permitting the victim to testify concerning statements made by the appellant after the rape regarding violent crimes appellant said that he had previously committed and others he intended to commit, and counsel was ineffective in failing to request cautionary instructions regarding these statements; counsel was ineffective (in the rape case) in failing to seek suppression of the shotgun; the trial court erred (in the rape case) by failing to declare a mistrial, and counsel was ineffective in failing to request cautionary instructions following

[ 364 Pa. Super. Page 509]

    the victim's unsolicited statement of her willingness to take a lie detector test; and the sentences imposed upon the appellant for each conviction were illegal in that the trial court failed to consider relevant sentencing factors, gave an inadequate statement of reasons for imposing sentence, and had inadequate grounds for sentencing in the aggravated minimum range for the rape conviction and for deviating from the sentencing guidelines in sentencing on the terroristic threats conviction. We cannot agree.

Upon review of the record, the briefs of the parties and the well-reasoned opinions of the Honorable Richard Thomas, President Judge, we find no merit in these appeals. Accordingly, we affirm the judgments of sentence.

I.

Under 42 Pa.C.S.A. § 5912, "[i]n a criminal proceeding, a person who has been convicted in a court of this Commonwealth of perjury, . . ., shall not be a competent witness for any purpose, although his sentence may have been fully complied with, unless judgment of conviction has been judicially set aside or reversed, or unless the proceeding is one to punish or prevent injury or violence attempted, done, or threatened to his person or property, in which cases he shall be competent to testify." See Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979); Commonwealth v. Meholic, 341 Pa. Super. 342, 491 A.2d 848 (1985). Appellant in the instant case admits that he was convicted of perjury in 1967.

Prior to trial on the terroristic threats charge, the Commonwealth moved to have the appellant declared incompetent to testify pursuant to 42 Pa.C.S.A. § 5912. On May 13, 1985, the Honorable Robert L. Walker denied the motion, but ruled that, if the appellant testified at trial, evidence of his prior conviction for perjury could be used for impeachment purposes. Judge Walker reasoned that precluding a convicted perjurer from testifying on his own behalf would

[ 364 Pa. Super. Page 510]

    be unconstitutional. Trial Court Opinion (No. 1985-161, terroristic threats case) at 4.*fn1

Appellant argues that not only was he competent to testify in spite of his prior perjury conviction, but that under the rules set forth in Bighum, Roots, and their progeny,*fn2 evidence of his prior conviction for perjury was not admissible to impeach his credibility at trial. We, however, decline to construe the rules announced in Bighum and Roots so as to create the "warm comfortable refuge for seasoned liars" which appellant seeks. Cf. Commonwealth v. Alicea, 498 Pa. 575, 583, 449 A.2d 1381, 1385 (1982) (McDermott, J., dissenting).

It is a fundamental tenet of American jurisprudence that an accused has a right to testify on his own behalf. It is well-accepted, though, that the opposing party may impeach the credibility of the defendant by introducing before the trier of fact evidence of his prior convictions. See Commonwealth v. Lewis, 350 Pa. Super. 595, 597-98, 504 A.2d 1310, 1312 (1986) (en banc). In Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961), our Supreme Court explained the basis of the rule permitting the admission of prior conviction evidence as follows:

This rule of evidence is founded on common sense and logic. If a defendant offers himself as a person worthy of belief, the jury has a right to know what kind of man he is -- to aid in accessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for veracity is evidence for the jury's consideration.

[ 364 Pa. Super. Page 511173]

A.2d at 474. Thus, evidence of a prior conviction is properly admissible to establish that the ...


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