*1 gift gave. back a he no, answer must be unless a father’s gift is never a gift. See generally Semasek v. Semasek, 282, 292, (1985) (McDer- A.2d mott, J., concurring). If one chooses gift to make a to his children, he cannot later take it back by deducting from that patrimony what he owes in support payments. Pennsylvania, Appellant,
COMMONWEALTH of RANDALL, Sr., Edward Charles Charles a/k/a Randall, Appellee. Supreme Pennsylvania. Court of
Argued April 1986. July Decided *2 Guthrie, Jr., Yatron, M. Atty., C. Charles George Dist. Atty., for appellant. Asst. Dist. Keller, Reading, appellee. D.
Scott FLAHERTY, NIX, LARSEN, C.J., Before McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ. *
OPINION McDERMOTT,Justice. Superior from the order of the appeal
This the Court of sentence entered reversing judgment awarding appellee a County, and Pleas of Berks Common disputed. not of this case are trial. The basic facts new January assigned this opinion author * This was Randall, Appellee, Sr., Edward Charles was tried for possession murder and of an instrument of crime as a result shooting Reading of a 1981 at a social At club. trial the depended upon Commonwealth’s case-in-chief eye- two witnesses to the testified that shooting. They appellee and argument, the victim had an after this argument return, appellee left the at time club which another argument place culminating took in the shooting victim. appellee shooting, his defense did not deny but shooting justified
contended that the he because be- armed, lieved the victim was the victim had because him gun during argument. threatened with a their first On the Commonwealth introduced the rebuttal evidence i.e., is the subject present appeal, testimony which attesting appellee’s burglary conviction *3 years present had occurred six before the offense. The of this purpose question rebuttal evidence was to call into appellee’s credibility. counsel,
This trial objected evidence was to but the factors, trial the judge, duly considering required after jury admitted the evidence. The returned a verdict of murder, of of guilty degree guilty possession as to third and appeal Superior an instrument of crime. On the Court reversed, and remanded the case for a trial. new
In the held that the trial court reversing, Superior Court in admitting testimony. erred the rebuttal The Common- appeal granted. of We sought wealth allowance which now reverse. history
As is
from the above
the issue
this case
obvious
purpose
for the
of
prior
concerns the use of
convictions
a defendant who testifies
his own behalf.
impeaching
before,
a
of times
have addressed this issue
number
We
in the cases of
v.
notably
Bighum,
Commonwealth
most
(1973), and
v.
452 Pa.
In involving prior of convictions to “crimes admissibility the Id., 452 Pa. dishonesty or false statement.” at Then, federal upon in reliance a circuit court A.2d at 262. decision,1 that certain “considerations” the Court declared admitting account evidence of should be taken into before were: prior convictions. Those considerations crimes; of length the the the age prior and nature of the record; circumstances of defend- age the the criminal ant; important is more to the the extent to which it for the to hear particular jury for truth in a case search a prior than to know of conviction. story the defendant’s Id., 452 Pa. at (citations omitted). at 263 307 A.2d Roots,
Later, Bighum. (1978), expanded upon this Court stated: of a the determination as making trial court impeachment purposes, the
prior conviction
(1)
the commission
degree
consider:
should
upon
veracity
offense reflects
likelihood,
defendant-witness;
(2) the
na-
view
record,
it
have a
that would
ture and extent
character of the defendant
tendency to smear the
greater
the crime for which
suggest a
to commit
propensity
rea-
charged,
provide
legitimate
rather
than
he stands
3)
person;
him as an untruthful
discrediting
son
4)
defendant;
strength
age and circumstances
case
need
prosecution’s
prosecution’s
compared
availability
as
with the
resort
this evidence
through which its
of other witnesses
to the defense
*4
can
surrounding
of the events
the incident
version
5)
means of
the existence
alternative
presented;
attacking
credibility.
the defendant’s
Id.,
39-40,
Although this Court Roots mandated considered, Court left the ultimate were to be factors the trial the discretion of admissibility as to within decision (D.C.Cir.1965). States, F.2d 348 763 Luck United 414
judge. Unfortunately,
grant
of that decision making
ability
proven
has
illusory,
we continually have cases
present
like the
appellate
where an
court acting on a cold
record concludes that the trial judge’s on-the-spot judgment
See Commonwealth v. Tangle, 349 Pa.Super.
wrong.
was
574,
(1986)
is necessary.
In Bighum and Roots this attempted to accommo- date the needs of the Commonwealth to fully expose wit- nesses to the view of the jury, while at the same time protecting the defendant from a finding guilt based solely prior history. It obvious desire of the provide Court to some objective criteria for determining However, convictions. that criteria exact, has proven less than engender and has done more to appeals guide than to courts and litigants. Therefore, Roots time has come to revise favor more concrete guidelines for the admission of prior conviction evidence.
Under the Federal Rules of Evidence a conviction per se for the purpose attacking admissible if credibility dishonesty conviction “involved or false statement.” 609(a)(1)(2). F.R.E. The only exception to this rule is where “a period of more than ten has years elapsed since the date of the conviction or of the release of the witness from the conviction, imposed confinement for that whichever is the date, determines, later unless the court in the interests of justice, probative value of the conviction supported specific facts and circumstances substantially out weighs prejudicial 609(b). its effect.” F.R.E. *5 we can still accom adopting this rule
We believe fair disclosure and interests of full competing modate affording defendant, the same time while at ness to the In addi and courts below. litigants to the certainty more Roots will not vitality note that the tion we therein will be as the considerations extinguished, totally fall in which determining whether convictions relevant are admissible. exception category per rule Therefore, adopt do not the federal while we following extent: our current rule se modify we do introduced for the can be prior evidence of convictions if of a witness credibility purpose impeaching false involving dishonesty or for an offense conviction was statement, day or the last and the date of conviction If the trial date. a years is ten confinement within expired presiding has years than ten period greater of the evidence determine whether the value must judge effect. outweighs prejudicial its substantially hand, to the case at the evidence that rule Applying clearly admissible. prior of Mr. Randall’s conviction is reversed. Hence, Superior the order of NIX, C.J., dissenting opinion files a which ZAPPALA, J., joins. NIX,
ZAPPALA, J., dissenting opinion files a C.J., joins.
NIX, Justice, dissenting. Chief salutary to “revise” the purports The majority today v. Bighum, in standards announced Roots, and (1973), A.2d 255 Pa. (1978), governing impeachment as defendant’s convictions of a criminal evidence, more guidelines.” “in favor of concrete At evidentiary sweeps variety aside a reality majority a determi regarded as crucial to considerations heretofore per se place in their substituting admissibility, nation of i.e., factor, whether single arbitrary rule based on a or release from confinement thereon oc- conviction curred ten of the commencement of trial. The years within *6 inadequate protect rule announced is not today trial, right of the defendant to a fair is also an unneces- but from our settled sary departure jurisprudence.
I seriously question
legitimacy
of the concern which
gives
majority’s
rise to the
ill-considered reassessment
Bighum-Roots
essence,
In
admissibility.
test
Bighum-Roots
is that
problem
majority
identified
however,
being misapplied by reviewing
reality,
courts.
rulings applying
teaching
trial court
discretionary
and Roots have been
appeal
in the
upheld
overwhelming
reported
appellate
decisions.
majority
See,
e.g.,
Nenninger,
Commonwealth v.
444,
Pa.Super.
359
Gordon,
Commonwealth v.
(1986);
A.2d 433
355 Pa.Su
519
Lewis,
Commonwealth v.
25,
(1986);
1191
350
per.
512 A.2d
Commonwealth v.
595,
(1986);
Pa.Super.
417
505,
570
Stafford,
v.
416 A.2d
Pa.Super.
monwealth
272
Herman,
145, 412
v.
Pa.Super.
(1979); Commonwealth
271
Epps,
v.
Pa.Super.
(1979); Commonwealth
270
A.2d 617
Henson, 269
v.
Commonwealth
(1979);
295,
(1978); *7 Bryant, v. 247 Pa.Su (1977); 865 Flores, v. (1977); 386, per. (1977); A.2d 1366 371 Pa.Super. 247 Com (1976); Campbell, A.2d 1299 Pa.Super. 368 Smith, A.2d 862 monwealth Pa.Super. grounds, rev’d. on other (1976), in Moreover, cases (1978). rate of affirmance is, in all unnecessary deemed opinion a has been published predi likelihood, it is evident greater. even Thus Bighum-Roots dismantling majority’s hasty for the cate could Even if it nonexistent. practical purposes is for all consistently substi Superior demonstrated that court, the solution that of the trial tuted its judgment Bighum-Roots ques review of would be to circumscribe oppor court’s court, eliminate the trial not to tions first instance. What its discretion to exercise tunity accepts the implicitly the majority is that significant is of the Bighum-Roots rationale underlying of the validity approach. than the needless abandonment disturbing more
Even
per
Bighum-Roots
to embrace a
majority’s
is the
decision
se
whether
solely
concerned
with
rule of
occurred with-
after incarceration
conviction or release
prior
period preceding
approach
in the
trial. Such an
ten-year
unsound.1 The due
arbitrary
jurisprudentially
both
concern
this Court’s decisions in
process
underlying
Big-
potential
the inherent
prejudice
hum-Roots was
jury
that the defendant has
revelation
been convicted
recognized
of a
crime. We also
prior
prosecution’s
confront a defendant
elects to
in his
right
testify
who
attempted
We
to strike a
own behalf.
balance between
interests so that a
competing
these
conviction would
impeachment
only
be admissible as
evidence
“where its
evidentiary
prose-
introduction was
essential
valúe to the
Roots,
unreasonably
cution and not
unfair to the defense.”
In the se rule is my majority’s per view of the fails to ensure even the relevance convic- The rule makes no distinction between recent and tion. convictions; questiona- old conviction is of ten-year stale Consider the exam- veracity. relevance to a defendant’s ble defendant who convicted twenty-five year of a old ple That childhood conviction of a crime at fifteen.2 that defendant’s impeach credibility admissible to would be example operation as an adult. Another absurd age rule the case of a defendant convicted at would be years’ imprisonment to ten who is twenty and sentenced and ten later is tried for a new age thirty years released at twenty-year offense. That defendant’s old conviction would spite unquestionable of its remoteness. be admissible produce rule will also the anomalies that are “ten-year” A arbitrary line-drawing. ten-year an inevitable result conviction, old is too attenuated my judgment any bearing credibility, event to have defendant’s admitted; more only slightly be but a conviction remote will excluded, notwithstanding major- in all likelihood will discretion- assertion that the latter decision would be ity’s ary. disparate Such results exacerbate arbitrariness In of our trial courts’ already light an mechanical test. determinations un- appropriate documented to make ability basis, Superior case-by-case der on a Bighum-Roots deference to the exercise Court’s demonstrated discretion, simplistic rule is not majority’s per se to our demeaning judicial system. but case, concluded Superior properly the instant than had no means other his that because the defendant his claim of self-defense and to substantiate testimony own attacking means of adequate had other the Commonwealth trial court’s decision to admit credibility, the defendant’s error under burglary conviction was year-old prior the six Superior I agree standard. with Bighum-Roots appropriate. trial is of a new Court that the award assumes, course, hypothetical that the defendant was certi- 2. This 42 Pa. C.S. 6355. § fied for trial as an adult. See *9 I foregoing compelled all of the reasons to For am register my emphatic dissent.
ZAPPALA, J., dissenting in joins opinion. this ZAPPALA, Justice, dissenting. error,
I in Court’s decision. The initial as join cannot the it, answering in a has not question I lies been see and I my In review of the briefs the record find no asked. remotely sug- has even indication the Commonwealth Roots, holdings that the of gested (1978) Bighum, Pa. (1973), should revised or done so. Appellee certainly By Randall has not overruled. in case broadly stating the matter —“the issue this concerns purpose of a prior impeaching of convictions for use behalf,” in Majority Opin- who testifies his own defendant to attempts val- added) majority ion (emphasis at 412 —the sponte no than a reevaluation of a idate what is more sua seeking cases. our developed evidence rule of no than review, argued more and that properly applied court had Roots trial its proper scope of review Superior Court exceeded (abuse discretion) reversing. On this issue briefs of the record confined to assessments of parties were factors. according Roots/Bighum counsel, to their great parties, do a disservice We presented the cause justice our when we convert system our according percep- changing the law into vehicle though one change. parties, may need tion complaint, register no inclination to benefit and thus have if the stability rules can no confidence have motion. Counsel must with them its own may dispense time and effort care- they expend purpose wonder to what cases and crafting reference to arguments fully no heed and pay if the Court will them arguments policy, Our entire according its own whim. a matter decide sufficiently ourselves wise deign suffers process when thought, without among many from schools to choose input through recognized solely according channels but *10 our own resources. Bighum, appellant argued rule of
unfairness of the traditional Commonwealth v. Butler, (1961) permitted of a defendant’s criminal record to testimony rebuttal him if took stand in impeach he the witness his own that Acknowledging argument jury defense. was background of the defendant entitled to know the who belief, worthy Bighum himself as a witness of presented of such responded potential prejudicial that the misuse a defendant on the of his evidence to convict basis to risk its use. The great record was too reviewing development the historical of the by answered disqualifying from the common law rule convicted rule witnesses, of that rule abrogations as to statutory felons to it. development qualifications and case of statutory and the Butler policy reiterated the behind instruc- mandatory cautionary and reasoned that the rule sufficed to tion as to the limited use evidence mitigate unfairness. any the issue and with the parties
Thus directed recognize[d] insights arguments, of and “we benefit their object at issue here been the that the rule of evidence [had] in and we it years, much recent controversy [felt] [was] supervisory its under our appropriate propriety to discuss (foot A.2d at 262 452 Pa. at powers.” Bighum, rule and its omitted). careful examination of the Upon note that the evidence was we determined because purpose, involving dishonesty or veracity, only crimes offered test cited Model Code probative had value. We false statement 106(1)(b), Rule of Evidence Evidence Rule Uniform being as accord with this on Evidence and McCormick Federal Rule of Evi comparatively and cited approach, dence 609. convictions, however, we observed
Even as to these make so as to might probative diminish value other factors regard In this we re- proper in a case. them excludable States, (D.C.Cir. 348 F.2d ferred to Luck v. United court, discretionary rule interpreting in which 1965), evidence, might of factors which offered a number exercising discretion.1 judge relevant to a his reading It is from that our decision apparent weighing not made in a vacuum but reflected a careful policy considerations involved. Cases many split the use of such evi- widely commentators were over conditions, so By remain they today. dence and its citing only comparatively, agreeing federal rule federal rejected, a case which the rule approach with did properly found the federal rule not implicitly findings amplified all interests. We these accommodate Roots, being solicitous particularly *11 in Commonwealth in their on defendants as witnesses the effect of rule in its general noted that the rule own behalf. should be [It to all applicable in the federal rule is classic formulation and witnesses.] however, offers bald state-
Today, majority rule by adopting ment that believe [the federal] “[w]e of full competing can accommodate the interests we still defendant, the same while at disclosure and fairness litigants to and the courts affording certainty more time given why reject- is what was once explanation No below.” accepted.2 ed nowi§ rule, (1965), shortly discretionary 14 D.C. Code 305 §
1. This (i.e., by Congress provide that all felonies thereafter amended greater year) all by imprisonment than one punishable crimes dishonesty regardless degree, were or false statement crimes of admissible, discretionary 305 again § rule. amended version of 609(a), obviously but did not survive became model Fed.R.Ev. 609(a) change. adopted, provides that As Rule without substantial are shall be admitted if convictions evidence of convictions statement, dishonesty prejudice false a balance crimes of or being probative employed for all felonies. value other analysis tendency adopt again my dismay without express I at the abandoning By rea- issue. sound and resolution of an the federal rules, mimickery we mere of federal of state law to soned decisions win- Constitution to mere reduce laws our Commonwealth our dow-dressing.
423
impetus
The sole clue as to the
this substantial
is the
change
reference to one other case wherein allocatur
has been
granted
that also “concerns”
In Commonwealth v.
impeachment.
convictions as
Tangle,
allocatur
574,
(1986),
Pa.Super.
349
was it court balanced the factors;4 the rule two cases court found violated (rape) where the held not to prior crime was involve dishon- Moreover, false in the esty reported or statement.5 five in which this Court has had occasion to address the cases issue, have the trial of its we affirmed court’s exercise once, and discretion four times6 reversed reversal v. I being Commonwealth Roots. Under the circumstances claiming “the majority point think the stretches grant making ability proven illusory, of that decision has appellate an court continually have cases where on a record concludes that the trial acting judge’s cold I think ma- on-the-spot judgment wrong.” hardly was necessity re-evaluating has demonstrated the our jority they provided why less reasons prior decisions. Even have those decisions should be altered. tried third appellee degree murder at
possession
shooting
of an instrument of crime for a 1981
Reading
testimony
police
social
addition
club.
investigators,
officers and medical and other
Common-
case
of two
testimony
eyewitnesses
wealth’s
included
an argument
These
described
shooting.
witnesses
between
left the
appellee,
appellee
and the
after which the
victim
victim,
returned,
club,
again argued
later
with
Flores,
140,
(1977);
Pa.Super.
v.
247
A.2d 1366
Commonwealth
371
505,
(1976)
Campbell,
Pa.Super.
Commonwealth v.
A.2d
244
368
1299
Smith,
212,
(1976).
Pa.Super.
and Commonwealth v.
361 A.2d
240
862
Co., Inc.,
364,
also,
Mining
Carlson
Co. v.
Coal
Pa.Super.
See
Titan
343
case,
(1985) (Bighum analysis appropriate
no
1127
in civil
494 A.2d
court).
by trial
abuse of discretion
Canada,
494,
(1983);
Pa.Super.
Commonwealth v.
4.
In
claim that
court
evidence,
courts were
appellate
of such
a narrow
of review. The determination was
given
scope
court,
upheld
of the trial
to be
the sound discretion
within
Bighum,
of that discretion. See
unless there was an abuse
argues
The most credibility was crucial determination that its been disputed on the need for the striking the balance case. of the Common- entirety ignored the court evidence *15 single the rebut- only in chief and considered case wealth’s counter the to the Commonwealth witness available tal that gun had a at the club claim that the victim defendant’s needs of assessing the mind this was error. myTo day. evidence, the of the admission against for or parties the The Common- as a whole. case must be considered entire investiga- other presented eyewitnesses had two wealth contra- in direct testimony stood tors, the sum of whose on the other appellee, defense offered. diction to the of self-defense establishing his claim hand, no means of had the court’s The effect of testimony. than his own other potential- evidence with only defense ruling was to taint ruling information, contrary while collateral prejudicial ly nothing from the substance have removed would argued it Although might be case. Commonwealth’s necessary evidence was impeachment offense evidence, under conflicting assessing in jury aid the can record, such a conclusion law and on this applicable weight. undue given need is if the Commonwealth’s follow Philadelphia advances curiae Defender Association Amicus involving a crime burglary in all circumstances argument is not to im- not be admissible dishonesty and should or false statement offense was com- credibility specific evidence that the peach without noted, As this issue means. fraudulent or deceitful mitted Mullen, M.D. No. 52 pending before the Court in 15, 1986, May need not be addressed argued Appeal Docket case, proper posture decided. in to be where it is not in this It was, course, is notable that the Commonwealth free to argue that the jury suspect should be of the defendant’s testimony light of his considering self-interest Any volume the evidence to the contrary. “need” to this argument by bolster six alerting jury year to a old burglary conviction shrinks to obscurity when it is seen that having avoid this conviction put evidence defend- ant would have had to refrain from testifying and thereby offer no defense. I
For these reasons would affirm Order of the Superi- or Court. C.J.,
NIX, joined dissenting opinion. this LANG, Appellant, v.
Elizabeth Ellen Pennsylvania, COMMONWEALTH DEPARTMENT OF WELFARE, Appellee. PUBLIC Supreme Pennsylvania. Court of
Argued *16 March 1987. July
Decided