Commonwealth of Pa. v. Palo

24 A.3d 1050

2011 PA Super 136

COMMONWEALTH of Pennsylvania, Appellee

v.Richard Jason PALO, Appellant.

Superior Court of Pennsylvania.

Submitted March 14, 2010.Filed July 1, 2011.

Dianne H. Zerega, Uniontown, for appellant.Jack R. Heneks, Jr., Assistant District Attorney, Uniontown, for Commonwealth, appellee.BEFORE: STEVENS, P.J., LAZARUS and PLATT ^*, JJ.OPINION BY STEVENS, P.J.:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Fayette County after a jury convicted Appellant of burglary for his involvement in the after-hours burglary of local pharmacy. Appellant challenges the sufficiency of the evidence and the admission of an eighteen year old crimen falsi conviction to impeach an alibi witness. We affirm.

The trial court's Pa.R.A.P. 1925(a) opinion provides an apt factual and procedural history as follows:

[At Appellant's criminal trial,] [t]he Commonwealth presented testimony to show that on April 4, 2009, Lizza's Apothecare Pharmacy, a retail pharmacy located in Uniontown, Fayette County, Pennsylvania, was burglarized by Palo and his uncle Scott Sullivan.¹

Even if Appellant had preserved his weight claim, he would gain no relief. The weight of the evidence is exclusively for the finder of fact, which is free to believe all, part, or none of the evidence, and to assess the credibility of the witnesses. Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 101 (1995). Questions concerning improper motive go to the credibility of the witnesses. Commonwealth v. Boxley, 575 Pa. 611, 838 A.2d 608, 612 (2003). An appellate court cannot substitute its judgment for that of the jury on issues of credibility. Commonwealth v. DeJesus, 580 Pa. 303, 311, 860 A.2d 102, 107 (2004).

In reaching its verdict, the jury obviously credited Charlotte Thorpe's testimony despite vigorous cross-examination designed to impeach her credibility. As we may not disturb the jury's credibility determinations in this regard, this claim, if preserved, would have failed.

Appellant's remaining challenge goes to the Commonwealth's use of an old crimen falsi conviction to impeach the testimony of alibi witness Rosemary Frazee, Appellant's mother. Specifically, the prosecution sought the admission of Frazee's prior conviction for conspiracy to commit retail theft, which is crimen falsi, See Commonwealth v. Howard, 823 A.2d 911, 913 n. 2 (Pa.Super.2003), to prove she lacked character for truthfulness. Appellant argues that the eighteen year old conviction was too remote in time to have had any relevance to mother's veracity and was, in any event, unduly prejudicial.

Impeachment evidence is evidence which is presented as a means of attacking the witness' credibility. Leonard Packel & Anne Poulin, Pennsylvania Evidence § 608 (1987). There are several principal ways to attack a witness' credibility: ‘evidence offered to attack the character of a witness for truthfulness, evidence offered to attack the witness' credibility by proving bias, interest, or corruption, evidence offered to prove defects in the witness' perception or recollection, and evidence offered to contradict the witness' testimony.’

In Interest of M.M., 439 Pa.Super. 307, 317–318, 653 A.2d 1271, 1276 (Pa.Super.1995) (emphasis omitted). Pa.R.E. 609, which governs the admission of impeachment evidence, provides as follows:

Rule 609. Impeachment by evidence of conviction of crime

(a) General rule. 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, shall be admitted if it involved dishonesty or false statement.

(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Pa.R.E. 609(a), (b). See also Commonwealth v. Cascardo, 981 A.2d 245, 254 (Pa.Super.2009).

In making this determination, the following factors should be 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.

Commonwealth v. (Montez) Harris, 884 A.2d 920, 925 (Pa.Super.2005) ( citing Commonwealth v. Randall, 515 Pa. 410, 413, 528 A.2d 1326, 1328 (1987)).

In Cascardo, we applied the above factors to uphold a pretrial ruling permitting impeachment of the defendant with his sixteen year old crimen falsi convictions should he decide to testify at his murder trial. Factors one, two, three, and five all favored admission, we noted, because the evidence bore on veracity, was not “propensity” driven, involved crimes committed in defendant's adulthood, and lacked an adequate alternative for impeachment purposes. Of particular importance in our decision, however, was the fourth factor inquiry, as the Commonwealth's case, which alleged the conspiratorial murder of a creditor in defendant's loan sharking scheme, would turn on the credibility of a single witness who testified that he and the defendant had carried out the murder:

Cascardo is the only other person who could have testified about the murder. Cascardo presented an alibi witness intended to show he could not have killed Hoffner because he was not at the scene of the murder. Attacking Cascardo's credibility was particularly important given his defense was totally contradictory to the Commonwealth's version of the facts.

Id. at 256.

We also adopted the trial court's reasoning as it pertained to balancing the probative value of the prior crimes evidence with their prejudicial effect:

Although both sides presented significant evidence during this [week-long] trial, only two people—Gerber and [Cascardo]—could provide direct evidence as to whether [Cascardo] solicited and/or participated in the murder of Hoffner. As such, the credibility of both Gerber and [Cascardo] was critical to any analysis by the jury. If the jury believed Gerber, they could convict [Cascardo]. If the jury believed [Cascardo], an acquittal would have to follow.

Because of the criticality of both Gerber's and [Cascardo]'s testimony, we concluded that the jury should hear as much as possible about each man's believability. One piece of information impacting upon the believability of [Cascardo] was his prior convictions involving dishonesty. We concluded at trial and still believe that the information regarding [Cascardo]'s prior record was probative of an extremely important issue-whether [Cascardo] should be believed by the jury. As such, evidence of [Cascardo]'s prior convictions had probative value within the context of the trial as it evolved. Trial Court Opinion, 7/8/08, at 21–22 (footnote omitted).

Id. at 256.

As in Cascardo, the Commonwealth's need to introduce evidence of Frazee's old crimen falsi conviction was high, for the jury would decide between the credibility of a single Commonwealth witness and that of a single defense witness in order to reach a verdict. Appellant's “disgruntled” ex-girlfriend Charlotte Thorpe, the mother of his child, testified to both Appellant's stated intent to burglarize the pharmacy and his joint possession of pills with Sullivan afterward. Contradicting Thorpe's account was Frazee, Appellant's mother, whose alibi testimony that Appellant could not have been the second burglar because he was at her house represented Appellant's chief defense. As the perceived credibility of these two witnesses with close personal ties to Appellant would likely determine the outcome of the case, we agree with the trial court that the probative value of Mother's prior crimen falsi conviction outweighed its prejudicial effect, permitting its admission at trial.

Appellant also advances a more technical Pa.R.E. 609(b) argument, namely, that the trial court erred in permitting the old crimen falsi conviction when the Commonwealth never provided Appellant “with advance written notice of its intent to use such evidence,” thus depriving him of “a fair opportunity to contest the use of such evidence.” The record shows that Appellant provided nearly five months' notice of his intent to use Frazee as an alibi witness, but the Commonwealth did not notify of its intent to impeach her until the day of her testimony, when it first learned that she had a prior record under a different surname.

In support of his argument, Appellant baldly argues that the Commonwealth's failure to provide notice was “prejudicial,” without explaining exactly how he was prejudiced. Indeed, Appellant provides no authority to support his contention, nor does he discuss what, if any, unfair surprise occurred, how his use of Frazee's alibi testimony would have changed, if at all, or how emphasizing the age of the prior offense on redirect would not have...