Appeal from the Judgment of Sentence of May 11, 1988, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 87-04-1049-1050.
George H. Newman, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Beck and Kelly, JJ. Kelly, J., files a concurring statement.
[ 385 Pa. Super. Page 405]
The principal issue is whether a defendant may be impeached with a prior criminal conviction where the defendant was originally sentenced, imprisoned, and paroled over ten years before trial, but where the defendant later violated parole and was recommitted to serve the remainder of his original sentence within ten years of trial. The trial court held that under Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), the prior criminal conviction could be admitted to impeach the defendant if he testified on his own behalf. We agree with the conclusion of the trial court.
The relevant facts are not in dispute. In January, 1974, Lawrence Jackson was sentenced to four to ten years imprisonment for a robbery he had committed the year before. In June, 1976, he was placed on parole. In 1981, he violated parole by committing auto theft. As a result of this violation, the Pennsylvania Board of Probation and Parole ordered Jackson recommitted for his robbery offense. In 1983 and 1984, he served an additional fifteen months in prison for the robbery.
On June 28, 1986, Jackson and a number of other men were involved in an altercation during which one Ronald Collins was fatally stabbed. Jackson was charged with murder, conspiracy, and possessing an instrument of crime. Prior to trial, Jackson sought a court order prohibiting the prosecution from impeaching his credibility with the robbery conviction when he testified at trial. The trial court denied this request, and Jackson then decided not to take the witness stand. On February 8, 1988, a jury convicted Jackson of conspiracy and possessing an instrument of crime and acquitted Jackson of murder. Post-verdict motions were denied, and on May 11, 1988, Jackson was sentenced to five to ten years imprisonment.
[ 385 Pa. Super. Page 406]
On appeal from his judgment of sentence, Jackson raises five issues. He claims: 1) the trial court erred by ruling that he could be impeached with the robbery conviction; 2) there was insufficient evidence of conspiracy and possessing an instrument of crime; 3) the trial court erred by grading the conspiracy court as a felony rather than as a misdemeanor; 4) the trial court gave an inaccurate jury charge on accomplice liability; and 5) the trial court erred by denying a motion for mistrial based upon the prosecutor's racially discriminatory exercise of peremptory challenges. We find that each of these claims is without merit.
We shall first review the trial court's ruling that appellant could be impeached with his prior conviction for robbery. Robbery is deemed to be a crime that involves dishonesty. Commonwealth v. Kyle, 367 Pa. Super. 484, 489, 533 A.2d 120, 123 (1987); Commonwealth v. Dombrauskas, 274 Pa. Super. 452, 461, 418 A.2d 493, 498 (1980). For many years, the courts of this Commonwealth applied a five part test in order to determine whether crimes involving dishonesty or false statement could be used for impeachment purposes. This test was derived from the the Pennsylvania Supreme Court's decisions in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). Under the Bighum/Roots doctrine, the trial court was directed to consider the following factors when determining the admissibility of a prior conviction:
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 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
[ 385 Pa. Super. Page 407]
defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative ...