Commonwealth v. Jackson
326 A.2d 623
Pa. Super. Ct.
1974
Check Treatment

Opinion by

Cercone, J.,

This is a direct appeal from the appellant’s conviction of aggravatеd robbery and assault and battery, although the jury also found him not guilty of rape and aggravаted assault and battery. On this appeal the defendant argues: (1) The evidence was insufficient to support the verdict; (2) The jury was improperly permitted to hear evidence of six prior robbery convictions; (3) The jury’s findings of not guilty in the aggravated assault and bаttery charge, and guilty in the aggravated robbery charge were inconsistent.

I.

We disagree with the appellant’s first allegation of error and find that there was sufficient evidence to support the verdicts of guilty for aggravated robbery and assault and battery. The complainant testified that the appellant, a man she had known for some time prior to the incident, uninvitedly entered the house which she shared with her common law husband, two children and another man. Although the appellant had previously *388lived with, the сomplainant and engaged in consensual intercourse with her, the complainаnt testified that on this occasion the appellant beat her, raped her, аnd beat her again. Promising to return to “finish her off,” the appellant left the bedroom аnd slammed the ‍​‌‌​​‌​​​​​‌‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌​​‍door so hard that it jammed, trapping the complainant inside. Immediately thereafter she heard the appellant rambling around in the front room of the house where the stolen items were located prior to the appellant’s аrrival. They were not there subsequently.

This evidence, while circumstantial in part, was clеarly sufficient to support the jury’s verdict of guilty of aggravated robbery and assault and bаttery.

II.

In arguing that the testimony of the appellant’s pri- or criminal convictions should hаve been excluded, the appellant cites Commonwealth v. Bighum, 452 Pa. 554 (1973), which established a balancing tеst to replace the former rule ‍​‌‌​​‌​​​​​‌‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌​​‍allowing impeachment by proof of all felonies and misdemeanors crimen falsi. See also Luck v. U. S., 348 F. 2d 763 (D.C. Cir. 1965). However, Bighum is not applicable in the instant case for a variеty of reasons.

First, the appellant himself brought the convictions into the case оn direct examination. Since the trial court had indicated that it would allow the Commonwealth to introduce the convictions for the purpose of impeachment if the appellаnt testified, the appellant endeavored to salvage some tactical ‍​‌‌​​‌​​​​​‌‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌​​‍advantage by appearing to be repentant and forthright in admitting his past misdeeds on direct examination. His having volunteered the testimony, he cannot now complаin about its admission into evidence. Commonwealth v. McGrogan, 449 Pa. 584 (1972); Commonwealth v. Dessus, 214 Pa. Superior Ct. 347 (1969).

*389Second, in Ms post-trial motions the appellant did not raise or argue the propriety of admitting the evidence of his previous сonvictions. It is well established that we will not consider issues raised on appeal wMсh were not argued or otherwise preserved for appeal in the court below unless “policy or the interests of justice require a consideration and detеrmination thereof.” Commonwealth v. Dessus, 423 Pa. 177, 187 (1966). See also Commonwealth v. Faison, 437 Pa. 432 (1970). No such overriding policy or fairness interest appears to be present herein.

Third, the Supreme Court in Bighum recognized that, in light of Spencer v. Texas, 385 U.S. 554 (1967), proper instructions on the jury’s use of evidence of prior criminal convictions to impeach the defendant’s credibility will sufficiently vitiate the рrejudicial ‍​‌‌​​‌​​​​​‌‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌​​‍effect of the evidence so that its admission will not offend against the duе process clause of the constitution. Therefore, in modifying the judgment of sentenсe in Bighum the Court admittedly used its supervisory powers to limit the kinds of criminal offenses wMch may bе introduced for impeachment. Since the decision rested on the supervisory рowers of the Supreme Court, it is not retroactive. Commonwealth v. Milliken, 450 Pa. 310 (1973). Because Bighum is not retroactive, it is inapplicable to the instant case, the trial of which took place prior to thе Supreme Court’s decision in Bighum.

III.

Lastly, the defendant’s claim that he deserves a new trial bеcause the jury’s verdict was inconsistent is without merit. The jury may well have found that the comрlainant was beaten and robbed ‍​‌‌​​‌​​​​​‌‌‌‌​​‌‌‌‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌‌‌​‌‌‌​​‍(aggravated robbery), but did not sustain the “grievous bodily injury” necessary for aggravated assault and battery. In any event, the law in Pennsylvania and the federal courts long has *390been tbat inconsistencies in tbe jury’s verdict do not require tbe granting of a new trial so long as tbe evidence was sufficient to support tbe guilty verdicts tbat tbe jury did return. Commonwealth v. Carter, 444 Pa. 405 (1971). See also Annot., 19 A.L.E. 2d 259, 270-74 (1969).

Judgment of sentence is affirmed.