Argued October 7, 2014
Appeal from the Order of the Superior Court dated December 13, 2013 at No. 55 WDA 2013, vacating the judgment of sentence of the Court of Common Pleas of Clearfield County entered December 4, 2012 at CP-17-CR-0000541-2012, and remanding. Appeal allowed at 610 WAL 2013. Trial Court Judge: Fredric J. Ammerman, President Judge. Intermediate Court Judges: Jack A. Panella, Judith F. Olson, John L. Musmanno, JJ.
For Commonwealth of Pennsylvania, APPELLANT: Trudy Gale Lumadue, Esq. Cleartield County District Attorney's Office.
For Jason Lee Hoover, APPELLEE: Lance T. Marshall, Esq. Masorti & Sullivan, P.C.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS JJ. MR. CHIEF JUSTICE CASTILLE. Former Justice McCaffery did not participate in the decision of this case. Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Saylor files a dissenting opinion.
MR. CASTILLE, CHIEF
The Commonwealth appeals from a Superior Court Order vacating appellee's judgment of sentence for theft by unlawful taking, receiving stolen property, criminal conspiracy, and corruption of minors, and remanding for a new trial. The Superior Court panel concluded that the trial court abused its discretion in determining that the probative value of appellee's prior crime of dishonesty ( crimen falsi ) substantially outweighed its prejudicial effect. For the following reasons, we reverse the order below and remand for the Superior Court to consider appellee's remaining claim regarding appellee's proposed alibi testimony.
On April 20, 2012, the Commonwealth filed a criminal complaint against appellee alleging that on April 4, 2012, appellee and two co-conspirators, Barry Martell and D.M., a juvenile, stole parts and equipment from RES Coal Company in Goshen Township, Clearfield County, and later sold the stolen parts to a local salvage yard. On October 4, 2012, appellee filed a motion in limine seeking to preclude the Commonwealth from impeaching him with evidence of his 1998 crimen falsi conviction which resulted from appellee's guilty plea, at twenty-two years of age, to a single third-degree felony count of receiving stolen property. Acknowledging the specific list of five factors reiterated by this Court in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (Pa. 1987), to be considered in determining whether remote crimen falsi adjudications -- i.e., those that are more than ten years old -- are admissible as more probative than prejudicial, the trial court found that the balance of those factors weighed in favor of admitting appellee's single crimen falsi conviction for impeachment purposes. Specifically, the trial court considered:
(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 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.
Id. at 1328 (quoting Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364, 367 (Pa. 1978), abrogated in part as stated in Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211 (Pa. 2009)). The trial court determined that factors one, three, four, and five weighed in favor of the Commonwealth,
enhancing the probative value of appellee's crimen falsi conviction, while only the second factor weighed in appellee's favor, increasing the potential improper prejudicial impact of appellee's prior conviction. With this analysis, the trial court denied appellee's motion in limine.
At trial, D.M., testifying for the Commonwealth, stated that appellee was involved in the theft and that D.M., Martell and appellee had all agreed to steal the items and sell them for cash. Appellee then took the stand in his own defense in support of a claim of total innocence, stating that he was unaware of the theft, and that Martell and D.M. stole the items without his knowledge or participation. At the close of his testimony, and in the presence of the jury, the prosecutor asked the trial court to take judicial notice of appellee's prior crimen falsi conviction. N.T., 10/22/12, at 201.
Thereafter, the parties proceeded immediately to closing arguments. Appellee's counsel did not address appellee's prior crimen falsi conviction during his closing, but instead, counsel vigorously attacked D.M.'s credibility, employing no unusual points of impeachment. Thus, counsel argued that D.M. was not telling the truth, that his testimony was from a corrupt and polluted source, and that it should be received with great caution because D.M. had an interest in the outcome of the case, having admitted to being a thief and being involved in the crime at issue. Id. at 206, 210. In a similar attempt to persuade the jury not to accept appellee's testimony, the prosecutor made use of appellee's prior conviction in his closing argument as follows:
I argue to you that, you know, who's telling the truth and who's being factually correct and honest with you people is an issue for [you to] decide, but after the [C]ommonwealth -- or, after the defendant testified, the [C]ommonwealth introduced a prior conviction of the defendant for a crime called receiving stolen property.
And I offered that, or am allowed to offer that, to you because receiving stolen property's called a crimen falsi, a crime of dishonesty. So I don't say, hey, the defendant was convicted of receiving stolen property in the past; therefore, he must have done it this time. I say to you that the defendant was convicted in the past of a crime of dishonesty so, therefore, you can consider that when you decide who's telling the truth, who's being honest or dishonest.
Id. at 232. Appellee lodged no objection to the prosecutor's argument.
Immediately following closing arguments, the court issued its jury instructions, which included its instruction regarding the treatment of appellee's prior crimen falsi conviction. The court stated:
Now, there was evidence here tending to show that the defendant has a prior criminal conviction. And I'm talking about the record introduced by the [C]ommonwealth as to his prior conviction of receiving stolen property, all right.
Note that this evidence about that prior conviction from 1998 is not evidence of the defendant's guilt. You must not infer guilt from the evidence of that prior conviction. This evidence may be considered by you for one purpose only. That is, to help you judge the credibility and weight of the testimony
given by the defendant as a witness in ...