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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


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.



____________________________________________


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,


____________________________________________


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


____________________________________________


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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