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COMMONWEALTH PENNSYLVANIA v. DONALD WILLIAMS (02/29/88)

filed: February 29, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD WILLIAMS, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 439, 441 Feb. 1984.

COUNSEL

Norris E. Gelman, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Tamilia, Popovich and Cercone, JJ.

Author: Popovich

[ 371 Pa. Super. Page 511]

Appellant, Donald Williams, was tried before a jury and found guilty of robbery and possession of an instrument of crime. Post-trial motions were denied. Appellant was sentenced to eight (8) to twenty (20) years imprisonment on the robbery charge and a concurrent term of two and one-half (2 1/2) to five (5) years on the possession of an instrument of crime charge. This appeal followed, and we affirm.

Appellant presents two issues for our review on appeal: (1) whether reversible error was committed when the trial court permitted the Commonwealth to impeach the most critical defense witness with his convictions for crimes which were not crimen falsi; and, whether trial counsel was ineffective for failing to object to the charge of the trial court which failed to define the elements of robbery to the jury.

First, appellant contends that reversible error was committed when the trial court permitted the Commonwealth to impeach the defense's chief witness, Gannon Haskins, with his convictions for resisting arrest and assault, neither of which could be considered crimen falsi. Appellant further contends and the record shows that defense counsel immediately objected to such impeachment of Mr. Haskins by the Commonwealth. An in camera proceeding was held, and the trial court overruled defense counsel's objection based on the Commonwealth's argument that there is a difference between impeaching a defendant and impeaching a witness:

MR. CAYER: Again, I am moving for a mistrial. I think he can clearly ask a witness where he is entitled to impeach, he can ask him about crimes that he had been convicted of, crimen falsi. But assault is certainly not crimen falsi. The reason he is doing it and the reason he

[ 371 Pa. Super. Page 512]

    is pursuing it as he has the whole line of questioning, is to discredit the character of the witness by improper impeachment. There is no way this jury can hear this fairly now because of the obvious prejudice which he has engendered by his questions.

MR. SILVERSTEIN: Your Honor, this is not the defendant that is being cross-examined. And I am entitled to impeach him by any convictions.

MR. CAYER: I disagree. I think the law is very clear on it, that it is also crimen falsi as to any witness.

MR. SILVERSTEIN: Only as to defendants.

THE COURT: With defendants, if it is crimen falsi. And character witnesses, you can only ask them about those convictions that he knows about. But a witness can be impeached and I am so ruling.

MR. SILVERSTEIN: That is the point, this is a witness.

MR. CAYER: By convictions of crimen falsi.

MR. SILVERSTEIN: By anything.

THE COURT: I am ruling that way. It is on the record. Your rights are protected.

(N.T. May 5, 1986, pp. 111-12).

In Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d 1154, 1160 (1982) cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982), the Pennsylvania Supreme Court held:

It is well settled that a witness may be impeached on the basis of a prior conviction only if the crime involves dishonesty or false statement. Commonwealth v. Burton, 491 ...


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