Judges： Brosky, Eakin, McEwen
Filed Date： 10/16/2001
Status： Precedential
Modified Date： 10/26/2024
¶ 1 Appellant, Kevin Days, appeals from the judgment of sentence following his conviction by a jury for possession, possession with intent to deliver and delivery of a controlled substance.
¶ 2 The conviction involves the March 1, 1999 delivery of crack cocaine to an undercover police officer at the home of appellant’s former girlfriend, at 1031 Highland Manor, Monesson, Pennsylvania.
¶ 3 The Commonwealth intended, should appellant take the stand, to introduce a certified copy of a prior crimen falsi conviction for retail theft on the basis appellant would be placing his truthfulness and credibility into issue when he swore to tell the truth. N.T. Trial, 1/13/00, at 15-17. Appellant did testify, and stated he was not at Highland Manor on March 1, 1999. He admitted the retail theft conviction, and the trial court granted permission to the Commonwealth to cross-examine appellant about it.
¶ 4 The Commonwealth began the cross-examination by asking questions which established appellant previously lived at 1031 Highland Manor with his girlfriend and their three children. An exchange followed, during which appellant repeatedly volunteered that he had been previously arrested at 1031 Highland Manor.
.Q: You — it’s your testimony that you were never at 1031 Highland Manor anytime in the year 1999? Is that your testimony?
A: My testimony is — yes, I came to Highland Manor, but I was arrested.
Q: Well, the idea is that sometime during 1999 it would be your practice to be coming to and from 1031 Highland Man- or.
A: It wouldn’t be my practice, no.
Q: But you did.
A: Like I said, it’s been time when I came there and I wasn’t allowed and there was punishment behind it.
Q: But you were there. That’s all—
A: Oh, through ’99?
Q: Up to—
A: Yeah, there’s been some in ’99 that I was there, yes.
Q: So it’s not your claim that there’s— that you were never in 1031 Highland Manor—
A: I’ve been at 1031 since ’97. I was there also in ’97.
Q: I just want the jury to understand it’s not your contention that you have never heard of 1031 Highland Manor but that in fact you are familiar with that residence.
A: I said yes.
Q: That you have lived there in the past.
A: Yes.
Q: That in 1999 whether you were allowed to or not you were at 1031 Highland Manor.
A: Yes, at times.
*819 Q: In fact, yon had been there just around the time March 1st, 1999 rolled around, correct?
A: No, that’s not correct.
Q: That’s not correct?
A: No.
Q: Your testimony is that you were not ever at 1031—
A: You said around March.
Q: Around March, let’s say the following month, in April.
A: Yes, I was arrested.
Id., at 293-94.
¶ 5 The Commonwealth continued with other questions, then returned to the subject of where appellant was on March 1, 1999:
Q: Mr. Days, tell the jury, please, given that you know that you were there some one month before that, some one month after that, and that you were there at various times in 1999, you don’t know where you were at, how do you know you weren’t there on March 1, 1999.
A: I came in there maybe January or February 1999 and was arrested. I came there maybe April or May of 1999 and I was arrested. And each time that I was arrested the person who lived at Highland Manor 1031 called the police and I was arrested for trespassing. I’m not allowed on the premises.
Id., at 295-296.
¶ 6 After this exchange, the Commonwealth did not ask about prior arrests during cross-examination. During redirect examination, appellant testified:
Q: But on this particular day and time you were not there selling drugs?
A: No, I was not. Each time, I would say each time that I — each time that I came to Highland Manor, I was arrested by the mother of my children, she called the police. Maybe I can’t say her reasons for doing it, but she doesn’t want me there, we have — we have a problem with the visitation of me seeing my kids, and if I’m staying at 226 McKee Avenue she’s supposed to bring them to see me and she doesn’t bring them for a couple days or three, four days, whatever, I take it upon myself to knock on the door. Well, can I take one or two of them, you know, we may get into a dispute and it turns into the police and I get arrested and it comes into a trespassing charge. And like I said, I pleaded guilty to the trespassing charge whenever it did happen, and I tried to explain to the magistrate, to the higher court judge that it should be some — we should see some type of on parenting classes because the — the visitation rights that I’m not allowed, I’m not even allowed to — in the apartment or even allowed them to come to my apartment. So this is the reason why I had the trespassing charges, because I felt it was necessary that I be involved to see my kids.
Id., at 301-02.
¶ 7 During recross-examination, the following exchange occurred:
Q: Sir, you’re not being altogether truthful about the relationship you have with the mother of your children, are you?
A: Yes.
*820 Q: It is your testimony that you and Tiwanda Russell have the kind of relationship where every time you go to 1031 Highland Manor you’re arrested and charged with a crime? Is that your testimony?
A: If I’m coming to bring her money maybe she won’t call the police.
Q: In those times when you want to bring money for the phone bill, et cet-era, you and Tiwanda Russell are both there at 1031 Highland Manor and the police are not contacted. That’s all I’m trying to elicit from you.
A: Me and her are there?
Q: Well, you have to give her the money.
A: Well, I’m not — yes, I’m on the premises of Highhand [sic] Manor, yes, I’d be on the premises of Highland Man- or.
Q: Earlier whenever you said something to the effect of every time you would go there you would get arrested, that actually wasn’t true, was it?
Id., at 303-05. The Commonwealth continued the recross-examination:
Q: Is it your testimony that you’re doing absolutely nothing else while you’re at 1031 Highland Manor other than being there that causes you to be arrested?
A: Nothing else.
Id., at 311-12. After a weekend recess, appellant returned to the stand and testified he had been convicted on one occasion of damaging a steel door and on another occasion of damaging a lock at 1031 Highland Manor. Id., at 338. At the conclusion of trial, the jury convicted him of the drug offenses.
¶ 8 Appellant raises the following issues on appeal:
I. Whether evidence of the defendant’s prior criminal history was wrongly admitted into evidence?
a. Whether the Commonwealth violated the mandates of 42 Pa.C.S. § 5918 by questioning the defendant about prior criminal incidents, unrelated to the instant offenses?
b. Whether the Commonwealth violated the defendant’s due process rights and Pennsylvania Rule of Evidence 609 by introducing evidence of prior criminal convictions which were not crimen falsi?
c. Whether the Commonwealth introduced evidence in violation of a pretrial agreement not to do so?
Appellant’s Brief, at 3.
¶ 9 Troopers Dschuhan and Alston testified appellant sold drugs at 1031 Highland Manor on March 1, 1999; appellant testified he was not at the residence that day. Accordingly, the truthfulness of these witnesses and appellant’s recollection of that particular day was at the core of trial. On direct examination, appellant offered no reason why his recollection of that day, versus any other day, was so absolute. On cross-examination, the Commonwealth properly pointed out the lack of evidence corroborating his recollection, and suggested appellant was often at this residence where his children five, making suspect any date-specific recollection.
¶ 10 On redirect examination, appellant shifted the tenor of his alibi by volunteering “each time that I came to Highland Manor, I was arrested by the mother of my children.” N.T. Trial, 1/13/00, at 301-02. This told the jury that whether he recalled the date or not, he could not have been there on pain of arrest. Appellant’s testimony can be paraphrased as “I couldn’t have been there, because I’d have been arrested simply for trying to see my kids.” An attempt to victimize as well as
¶ 11 When the Commonwealth followed this with “You’re not being truthful about your relationship with the kids’ mother,” appellant denied being untruthful. The exposure of his untruthfulness was not precluded because the rebutting evidence included prior criminal activity, particularly where he introduced the prior arrests in his own testimony. He is not insulated from being discredited about the factual accuracy of his testimony simply because that proof involves other crimes.
¶ 12 The questions regarding appellant’s prior convictions also nullified the impression appellant created of himself as a dedicated father who was simply trying to see his children and who was the subject of unfair treatment by police and the children’s mother. The Commonwealth’s examination clarified that he was arrested not only for trespass but for criminal mischief and public drunkenness, which revealed appellant was untruthful with the jury about the reasons for his arrests at the residence.
¶ 13 In Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862, 869 (1984), a prior conviction was introduced to rebut the defendant’s unsolicited assertion that he was a nonviolent person; this Court determined it was proper to use a prior conviction to rebut volunteered character testimony, as authorized by 42 Pa.C.S. § 5918(1). In the case before us, the evidence likewise came in not to show appellant committed other crimes, but to negate his “poor me” testimony. We agree with the trial court that appellant, by mentioning his arrests for trespassing, opened the door for further explanation about the calls to the police. Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755, 760 (1983) (citations omitted) (once a defendant has presented evidence to prove his good character or reputation, or has himself introduced evidence of his prior crimes, the prosecution has a limited right to introduce evidence of prior convictions in rebuttal).
¶ 14 The cross-examination also undercut any inference that the prospect of arrest deterred appellant from being at the site. The nature of the crimes shows he was charged for what he did there, not for being there. The prosecutor showed that arrest was avoidable if appellant behaved well toward his family; there being no such misconduct on March 1, 1999, his assertion that he could not have been there was properly challenged.
¶ 15 A prosecutor may not malign an accused with irrelevant evidence of pri- or crimes, but when prior crimes or arrests are made relevant by the accused’s own testimony, cross-examination on these points is entirely proper. We find no error by the learned trial court in permitting the jury to consider this relevant and enlightening cross-examination.
¶ 16 Pennsylvania Rule of Evidence 609 provides:
For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime,*822 whether by verdict or by plea of guilty or nolo contendré, shall be admitted if it involved dishonesty or false statement.
Pa.R.E. 609(a). The retail theft conviction was the only crimen falsi conviction admitted against appellant pursuant to Pa.R.E. 609. The public drunkenness and criminal mischief convictions were introduced after appellant used the convictions to victimize and alibi himself. The convictions were not offered or admitted into evidence as crimes of dishonesty or false statement pursuant to Pa.R.E. 609. Thus, appellant’s second claim is meritless.
¶ 17 Finally, a review of the record reveals that prior to trial the parties did discuss that the Commonwealth would not question appellant about any crimen falsi convictions other than the retail theft conviction; however, there was no agreement the Commonwealth would not cross-examine appellant on other prior crimes made relevant by appellant himself during the course of the trial. Therefore, appellant’s final claim must fail.
¶ 18 Accordingly, the judgment of sentence is affirmed.
¶ 19 BROSKY, J. files a Dissenting Opinion.
. Page 296 of the Official Transcript is missing. The Prothonotary of Westmoreland County was unable to locate a copy of the page. Both the Commonwealth and appellant’s counsel refer to page 296 and quote language from page 296. Appellant’s brief informs us the Commonwealth then asked on page 296, "Did you pled [sic] guilty to those charges?”
. 42 Pa.C.S. § 5918 provides:
No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or lending to show that he has been of bad character or reputation unless: (1) he shall have at such trial, personally or by counsel,. . . [have] given evidence tending to prove his own good character or reputation[.]
42 Pa.C.S. § 5918.