Com. v. Johnson, D.

J-S52044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DION MAURICE JOHNSON :
:
Appellant : No. 512 EDA 2019
Appeal from the Judgment of Sentence Entered January 17, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003666-2017
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 30, 2019
Dion Maurice Johnson appeals from the judgment of sentence entered
after a jury found him guilty of unlawful contact with minor, sexual assault,
corruption of minors, and indecent assault.1 He challenges the admission of
evidence. We affirm.
The trial court summarized the factual history of this case as follows:
The underlying facts giving rise to [Johnson’s] convictions
are as follows: the charges . . . arise out of an incident which
occurred over a period of several hours on June 28th and
29th of 2017. The incident occurred inside [Johnson’s]
apartment in Parkesburg Borough, Chester County,
Pennsylvania. The victim in this case is a sixteen (16) year
old girl who encountered [Johnson] at his residence when
she was walking home from her friend’s house. Upon
making contact with [Johnson] outside of his residence, the
victim agreed to accompany [Johnson] into his apartment
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118Pa.C.S.A. §§ 6318(a)(1), 3124.1, 6301(a)(1)(i), 3126(a)(1), respectively.
The jury found Johnson not guilty of rape-unconscious victim, 18 Pa.C.S.A. §
3121(a)(3).
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to use and/or procure narcotics. Prior to this encounter,
[Johnson] and the victim were complete strangers.
Once inside the apartment, the victim and [Johnson]
smoked narcotics and drank alcohol together. When the
victim attempted to leave the apartment and go home,
[Johnson] demanded “payment” for the narcotics. The
victim testified that she “blacked out” at this point and when
she awoke, she was naked and [Johnson] was on top of her,
penetrating her vaginally without her consent. The victim
managed to grab her pocketknife and stabbed [Johnson]
multiple times to finally end the assault.
See N.T. 10/16/18, pp 28-82; N.T., 1/17/19, pp. 10-17.
Tr. Ct. Pa.R.A.P. 1925(a) Op. at 2.2
Johnson was 50 years old at the time of the incident. N.T. 10/17/18, at
332. The trial court conducted a three-day jury trial, which culminated in
Johnson’s conviction on the above-referenced charges on October 18, 2018.
At trial, both the victim and Johnson testified. In addition to the above
description of the assault, the victim revealed that she was taking medication
for bipolar disorder and depression at the time of the incident. N.T. 10/16/18,
at 65. She also emphatically asserted that she had not consented to any
sexual activity during the night in question. Id. at 82. Conversely, Johnson
testified that he had consensual sex with the victim on the night in question.
N.T. 10/17/18, at 334. He contended that the victim’s stabbing him was
unprompted by any assault he perpetrated against her. Id. at 355-358.
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2 We note that while the Honorable Anthony A. Sarcione presided at trial, he
retired shortly thereafter. As a result, the Honorable William P. Mahon
sentenced Johnson and filed the instant Rule 1925(a) opinion.
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Also testifying at trial were responding Officers Cole Burkhardt and
Michael Kinsman of the Parkesburg Police Department. The officers confirmed
that upon arrival at Johnson’s house on the night in question they discovered
Johnson covered in blood and nude. N.T. 10/16/18, at 148-154. They
observed that the victim was shaken, upset, and seemingly nude wrapped in
a blanket. Id. Officer Kinsman indicated that the victim stated something
along the lines of, “I thought a blow job would have been enough.” Id. at
185. Bernadette Clagg, a forensic nurse, performed a sexual evidence kit on
the victim and testified that the victim told her that Johnson had suggested
that she perform oral sex on him in exchange for drugs. N.T. 10/17/18, at
236. Likewise, Detective Craig Yeckley testified that the victim stated to him,
during an investigatory interview, that she may have started to perform oral
sex on Johnson, but did not remember anything after that until she awoke to
find Johnson with his penis in her vagina. Id. at 297.
Johnson filed a motion in limine to preclude the admission of his 2004
conviction for robbery in Virginia.3 When considering Johnson’s motion, the
trial court engaged in a balancing test, on the record, as follows:
In studying the case law, it appears it’s outside of the ten
years. However, if it's outside the ten years, it can be
admitted if the Court determines that it’s probative value
substantially outweighs its prejudicial effect. Now, in the
case law that’s provided the Court with factors to consider,
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3 Johnson also raised the issue orally at trial.
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and I found this one case, Mistretta,[4] M -I -S -T -R–E-T-
T-A which involved the prosecution for indecent assault and
corruption of minors, which is similar to this case. However,
in Mistretta I believe the credibility of a twelve year old
young girl was at issue. Here we have a sixteen year old
young girl at issue.
[Johnson] at the time of the robbery was in his mid
thirties. So in going through my balancing, the first factor,
the degree to which the commission of the prior offense
reflects upon the veracity of [Johnson] is satisfied by crimen
falsi requirement. The robbery is a crimen falsi.
The second factor, in view of the nature and extent of the
prior record, that would have a greater tendency to smear
the character of [Johnson] 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. It’s only one conviction. And I will give a
cautionary instruction on how they are to consider it, in that
it’s not to be, I'll give an instruction it’s only to be considered
for credibility, nothing else. It’s one conviction of robbery.
The third factor, the age and circumstance of [Johnson].
In Mistretta the defendant was twenty-five years old at the
time --I'm sorry-- at the time of the prior conviction. In this
case he’s in his late thirties. It’s not like he was just
adjudicated or certified to adult court.
The fourth factor, 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 to which its version of events surrounding the
incident can be presented.
The young lady is saying what happened and whatever
the defendant says happened, no other witnesses. I believe
that's crucial here. And in Mistretta the credibility of a
twelve year old victim of sexual assault had to be weighed
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4 Commonwealth v. Mistretta, 528 A.2d 184 (Pa.Super. 1987) (holding
defendant’s prior convictions for theft and theft by deception were admissible
for impeachment purposes).
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against the defendant’s credibility. In this case it's a sixteen
year old girl against [Johnson’s] credibility.
The fifth factor is the existence of alternative means of
attacking [Johnson’s] credibility. I don’t know what other
manner they could attack his credibility other than with this
crimen falsi. And we have a young lady, and the jury heard
that she’s on antidepressants, the victim, and was
medicated during the time this happened, along with having
alcohol and I believe it was cocaine in her system.
N.T. 10/17/18, at 326-328.
Following this analysis, the trial court denied Johnson’s motion to
preclude the admission of his robbery conviction. Thus, the Commonwealth
and Johnson entered into an on-the-record stipulation acknowledging the
conviction. Id. at 404-405. During its jury charge, the trial court instructed
the jury on the purpose for which it could consider the conviction as follows:
There was evidence tending to prove by stipulation that
[Johnson] had a prior conviction in 2004 for robbery. This
evidence is not evidence of [Johnson’s] guilt. You must not
infer guilt from the evidence of a prior conviction. This
evidence may be considered by you for one purpose only,
that is, to help you judge the credibility and the weight of
the testimony given by [Johnson] as a witness in this trial.
In considering the evidence of prior conviction, you may
consider the type of crime committed, how long ago it was
committed and how it may affect the likelihood that
[Johnson] has testified truthfully in this case… .
Id. at 457.
After a jury convicted Johnson, the trial court sentenced him, on January
17, 2019, to an aggregate sentence of 12 ½ to 25 years’ incarceration. No
post-sentence motions were filed. Johnson filed the instant timely notice of
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appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed
a responsive Rule 1925(a) opinion.
On appeal, Johnson raises a single issue:
Did the trial court err in denying defense motion to preclude
use of [Johnson’s] conviction or release under PA Rules of
Evidence 609(b)?
Johnson’s Br. at 4.
Specifically, Johnson argues that the trial court abused its discretion by
concluding that the probative value of his 2004 robbery conviction outweighed
the conviction’s prejudicial effect. Johnson emphasizes that his robbery
conviction is over ten years old and should therefore be considered “stale.” He
avers that because robbery constitutes a violent felony, as does the crimes he
was charged with, the admission of his prior conviction improperly spoke to
his propensity for violence rather than his veracity. He further contends that
because he was 37 years old when he committed the robbery, the admission
of his conviction would necessarily point to a violent propensity rather than a
youthful mistake. Moreover, Johnson maintains that the admission of his
conviction was not required for impeachment purposes because the
Commonwealth had Johnson’s own inconsistent statements regarding the
incident in question with which to discredit his testimony at trial.
“A trial court has broad discretion to determine whether evidence is
admissible and a trial court's ruling on an evidentiary issue will be reversed
only if the court abused its discretion.” Commonwealth v. Huggins, 68 A.3d
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962, 966 (Pa.Super. 2013) (citing Commonwealth v. Cook, 676 A.2d 639,
647 (Pa. 1996)). We do not disturb a ruling admitting evidence “unless that
ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support to be clearly erroneous.” Id. (quoting
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super. 2010)). As our
scope of review over an evidentiary question is plenary, we may review the
ruling within the context of the entire record. Id.
The admission of evidence of a prior conviction for impeachment
purposes is governed by Pennsylvania Rule of Evidence 609, which states:
(a) In General. For the purpose of attacking the credibility
of any witness, evidence that the witness has been
convicted of a crime, whether by verdict or by plea of guilty
or nolo contendere, must be admitted if it involved
dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This
subdivision (b) applies if more than 10 years have passed
since the witness's conviction or release from confinement
for it, whichever is later. Evidence of the conviction is
admissible only if:
(1) its probative value substantially outweighs its prejudicial
effect; and
(2) the proponent gives an adverse party reasonable written
notice of the intent to use it so that the party has a fair
opportunity to contest its use.
Pa.R.E. 609. This Court has held that robbery is a crime of dishonesty. See
Commonwealth v. Harris, 884 A.2d 920, 925 (Pa.Super. 2005) (“Robbery
and burglary are considered crimen falsi and convictions for those offenses
are admissible for impeachment purposes”).
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This Court has explained that when weighing the probative value versus
prejudicial impact of crimen falsi convictions older than 10 years, the trial
court should consider:
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.
Commonwealth v. Palo, 24 A.3d 1050, 1056 (Pa.Super. 2011) (citations
omitted).
Moreover, we are mindful that when embarking on appellate review of
a trial court’s application of the above factors, the question is not whether this
Court would have reached a different conclusion but rather “whether the trial
court’s balancing fell within its discretionary authority.” Commonwealth v.
Hoover, 107 A.3d 723, 729 (Pa. 2014). “The prejudicial effect of a prior
conviction is not assessed in a vacuum; an appellate court should not only
consider the purpose for which the evidence is introduced, but the actual use
made of the evidence and also the jury instructions that accompany the
admission of the evidence.” Id. at 731 (citation omitted).
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In the instant case, the trial court properly engaged in a balancing test,
as set forth above, by using the appropriate factors set forth under
Pennsylvania law. See Palo, 24 A.3d at 1056. The trial court acknowledged
that because Johnson’s robbery conviction was over ten years old, the test
that the court must engage in is whether the probative value of the conviction
substantially outweighed its prejudicial effect. See Pa.R.E. 609(b). The court
determined that the balance tipped in favor of admitting the evidence after it
considered the appropriate factors. First, the court noted that Johnson’s
robbery conviction is a crimen falsi and, as such, reflects upon Johnson’s
veracity. See Harris, 884 A.2d at 925. Next, the court considered the
tendency of the robbery conviction to smear Johnson’s character rather than
shed light on his propensity for truthfulness. The court found that the potential
prejudicial effect of Johnson’s single conviction could be combated with a
cautionary jury instruction.
Third, the trial court considered that Johnson was in his late thirties at
the time of his robbery conviction. Thus, he was not a juvenile and the
conviction was more likely to reflect on Johnson’s adult propensity for
truthfulness. Next, the court also weighed the fourth factor in favor of the
admission of Johnson’s conviction because with only two “witnesses” to the
actual events on the night in question, the credibility of Johnson and the victim
was directly at issue. Likewise, in regards to the last factor, the trial court
properly noted the limited means the Commonwealth had to impeach
Johnson’s credibility, and pointed out that the victim’s young age and her use
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of controlled substances at the time of the incident heighten the need for
evidence pertaining to credibility. Thus, the trial court reasoned, the probative
value of Johnson’s conviction in regards to his credibility was significant.
Upon review, this Court concludes that the trial court properly engaged
in an analysis of the probative value and potential prejudicial effect of
Johnson’s robbery conviction by utilizing the five factors set forth under
Pennsylvania law. See Pa.R.E. 609(b); Palo, 24 A.3d at 1056. Moreover, we
note that the trial court gave an appropriate jury instruction, to caution the
jury that evidence of Johnson’s robbery conviction should only be used to
consider the credibility and weight of Johnson’s testimony, rather than to infer
guilt of the underlying charges here at issue. See Hoover, 107 A.3d at 731.
Accordingly, we hold that the trial court did not abuse its discretion by
admitting evidence of Johnson’s robbery conviction pursuant to Pa.R.E.
609(b). See id. at 729; Huggins, 68 A.3d at 966.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/19
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