                           [J-88-2014][M.O. – Castille, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                    :   No. 18 WAP 2014
                                                 :
              Appellant                          :   Appeal from the Order of the Superior
                                                 :   Court dated December 13, 2013 at No.
                                                 :   55 WDA 2013, vacating the judgment of
              v.                                 :   sentence of the Court of Common Pleas
                                                 :   of Clearfield County dated December 4,
                                                 :   2012 at CP-17-CR-0000541-2012, and
JASON LEE HOOVER,                                :   remanding.
                                                 :
              Appellee                           :   ARGUED: October 7, 2014




                                 DISSENTING OPINION



MR. JUSTICE SAYLOR                                        DECIDED: DECEMBER 30, 2014

       I respectfully dissent.

       Evidentiary rule 609(b) requires exclusion of a prior stale crimen falsi conviction

unless the conviction’s “probative value substantially outweighs its prejudicial effect[.]”

Pa.R.E. 609(b)(1) (emphasis added). This balancing test is a loose encapsulation of

factors that were originally mentioned in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d

364 (1978), and repeated in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326

(1987). The rule’s commentary indicates that 609(b) “basically tracks what was said” in

Randall. Id., Official Cmt. Still, the text obviously predominates over any associated

commentary as well as the decisional law purportedly incorporated by the commentary.

Accord Mitchell Partners, L.P. v. Irex Corp., 617 Pa. 423, 435-36, 53 A.3d 39, 46-47

(2012) (applying a similar approach to statutory text). Thus, I believe that courts should

focus primarily on the text of Rule 609(b)(1).
       As I read the rule, it chiefly implicates the second Randall factor. That factor

balances the potential for the evidence to “smear the character of the defendant and

suggest a propensity” to commit the crime, against its tendency to “provide a legitimate

reason for discrediting” the witness. Randall, 515 Pa. at 413, 528 A.2d at 1328. To my

mind, these are essentially the same as “probative value” and “prejudicial effect,” albeit

the latter are more concisely phrased. In this regard, the Commonwealth’s only valid

use of a prior conviction in this context is to suggest the defendant’s untruthfulness as a

witness, see Roots, 482 Pa. at 37, 393 A.2d at 366, and hence, it is only in this manner

that the conviction can properly be deemed probative. See Commonwealth v. Bighum,

452 Pa. 554, 566, 307 A.2d 255, 262 (1973).               As such, notwithstanding the

commentary, Rule 609(b)(1) principally carries forward the second of the five Randall

factors.

       I make this observation because it seems to me – and the present case

illustrates the point – that use of the five factors as a framework for disposition has

begun to overshadow the rule’s actual meaning and intent. A review of earlier cases

which contributed to the formulation of Rule 609(b) reveals that the Court was not

satisfied simply to give wide discretion to trial courts to use an open-ended, multi-

factored balancing test subject to extremely deferential review. Rather, the rule had its

origin in cases, such as Bighum, which were mainly concerned with closely channeling

the common pleas courts’ exercise of discretion in view of the danger that a defendant

might be unfairly prejudiced by prior bad-acts evidence. Bighum observed that, “[w]here

the defendant has no other means by which to defend himself, it would be particularly

unjust to subject him to the introduction of prior convictions.” Bighum, 452 Pa. at 567,

307 A.2d at 263.




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      Within this context, factors other than the second one, such as the age and

circumstances of the defendant or the existence of alternative means of attacking the

defendant’s credibility, were more peripheral than central, as they served to guide the

ultimate determination of whether the probative value did, in fact, significantly outweigh

the danger of unfair prejudice.     Accord Roots, 482 Pa. at 39, 393 A.2d at 367

(summarizing Bighum as representing an effort “to limit the admission of this type of

evidence to situations where its introduction was of essential evidentiary value to the

prosecution and not unreasonably unfair to the defense”); see also Bighum, 452 Pa. at

565 n.7, 307 A.2d at 262 n.7 (“The vortex of the storm of disagreement seems to focus

upon the balance between the probative value of this type of evidence as it bears on the

credibility of the defendant as a witness as opposed to the prejudicial effect that such

evidence has upon the jury.” (citing Note, Other Crimes Evidence At Trial: Of Balancing

And Other Matters, 70 YALE L.J. 763 (1961))). Additionally, the Court was viewing the

admission of stale other bad-acts evidence with great circumspection. See, e.g., Roots,

482 Pa. at 41, 393 A.2d at 368 (suggesting that this type of evidence has a “highly

inflammatory potential”); Bighum, 452 Pa. at 566, 307 A.2d at 262 (recognizing “the

tendency of a normal juror to accept testimony of prior convictions as a basis for finding

a predisposition to commit the crime charged”).

      In this arena, excessive deference to common pleas courts can be harmful, as it

tends to undermine the rationale and purport of the earlier cases and restrict the

provision of meaningful guidance to such tribunals.      Such an approach, then, is in

substantial tension with the underlying philosophy and concerns as expressed in the

earlier cases, as well as with Rule 609(b)’s goal of providing an essential check on the

introduction of prior-crimes proofs which do not bear directly upon the question of guilt




                          [J-88-2014][M.O. – Castille, C.J.] - 3
or innocence. Accordingly, I believe that Pennsylvania courts should recognize that

Rule 609(b)(1), by its terms and for valid reasons, is restrictive in nature.

       In determining whether probative value substantially outweighs prejudicial effect,

it should be noted, first, that the danger of unfair prejudice can be significant, particularly

in a situation where the defendant’s only means of defending himself is to testify. See

Bighum, 452 Pa. at 567, 307 A.2d at 263; Commonwealth v. Spruill, 480 Pa. 601, 606,

391 A.2d 1048, 1050-51 (1978) (“Evidence of prior criminal activity . . . is probably only

equaled by a confession in its prejudicial impact upon a jury. Thus, . . . courts should be

ever vigilant to prevent the introduction of this type of evidence under the guise that it is

being offered to serve some purpose other than to demonstrate the defendant’s

propensity to commit the charged crime.” (emphasis removed)). On the other hand,

while any crimen falsi conviction undoubtedly has some probative value, that value is

somewhat diminished in the Rule 609(b) category of cases, since by definition the

category only includes stale convictions – meaning they are more than ten years old.

Where, as here, there is only one stale prior offense, it cannot demonstrate a pattern of

dishonesty. Hence, in such a circumstance the probative value is diminished even

further.1

       The trial court recognized that the probative value did not outweigh, let alone

substantially outweigh, the prejudicial effect.     Indeed, the court recognized that the

second Randall factor – again, the primary one for Rule 609(b)(1) purposes – weighed

in Appellee’s favor, and particularly so because the identity of the prior crime with the


1
  In Commonwealth v. Rivera, 603 Pa. 340, 983 A.2d 1211 (Pa. 2009), by contrast,
there were five prior crimen falsi offenses. Moreover, all such prior offenses were of a
vastly different nature than the offense for which the defendant was on trial. See id. at
368, 983 A.2d at 1229. In terms of assessing prejudice, the importance of the present
identity of the prior offense with the offense charged is discussed below.


                            [J-88-2014][M.O. – Castille, C.J.] - 4
offense charged would have the effect of suggesting criminal propensity, which is

forbidden. See Pa.R.E. 404(b)(1); Commonwealth v. Hairston, ___ Pa. ___, ___, 84

A.3d 657, 665 (2014) (citing Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491

(1988)).2 Other courts have also considered the enhanced potential for prejudice when

the prior crime is the same as the present one. In United States v. Sanders, 964 F.2d

295 (4th Cir. 1992), the federal appellate court explained:

      Admission of evidence of a similar offense often does little to impeach the
      credibility of a testifying defendant while undoubtedly prejudicing him. The
      jury, despite limiting instructions, can hardly avoid drawing the inference
      that the past conviction suggests some probability that [the] defendant
      committed the similar offense for which he is currently charged. The
      generally accepted view, therefore, is that evidence of similar offenses for
      impeachment purposes under [Federal] Rule 609 should be admitted
      sparingly if at all.
Id. at 297-98 (quoting United States v. Beahm, 664 F.2d 414, 418-19 (4th Cir. 1981))

(emphasis added); accord State v. Colf, 525 S.E.2d 246, 249 (S.C. 2000); State v.

Redmond, 803 N.W.2d 112, 124 (Iowa 2011) (“[O]ur case law has continually cautioned

against admitting prior convictions which are similar to the defendant’s current charge

2
  The trial court explained that, because Appellee was “charged with the same crime as
his past conviction,” the admission of his prior conviction “is more likely to suggest
criminal propensity.” Commonwealth v. Hoover, No. CP-17-CR-451-2012, slip op. at 5
(C.P. Clearfield March 21, 2013). In a similar vein, the Superior Court expressed that
the prejudice

      was extreme as the prior conviction entered into evidence was for the
      same offense with which Appellant was presently charged and was
      substantially similar to the other four charges. It is hard to imagine how
      the jury would not have inferred that Appellant had a propensity to commit
      the instant offenses because of his prior conviction. Although there was
      some probative value in the introduction of the prior conviction, it does not
      substantially outweigh the prejudice of its introduction.

Commonwealth v. Hoover, No. 55 WDA 2013, slip op. at 14 (Pa. Super. 2013).


                          [J-88-2014][M.O. – Castille, C.J.] - 5
for fear the jury will assume the defendant’s guilt by inferring the defendant acted in

conformity with his past conduct.”).

       As noted, the trial court here recognized this same possibility, and on that basis,

ruled that the second Randall factor weighed in Appellee’s favor. See supra note 2. Yet

the court ultimately determined, based on other Randall factors, that the prior conviction

was admissible. See Hoover, No. CP-17-CR-451-2012, slip op. at 7. Thus, the court

rested its decision on the premise that, under Rule 609(b)(1), all five Randall factors

stand on essentially the same footing. I would find this to constitute a misapplication of

the governing law – again, the actual text of Rule 609(b)(1) – and thus, an abuse of

discretion. See Commonwealth v. Wright, 621 Pa. 446, 462, 78 A.3d 1070, 1080 (2013)

(recognizing that a misapplication of the law amounts to an abuse of discretion);

Majority Opinion, slip op. at 9 (same).

       Accordingly, I would affirm the Superior Court’s order awarding a new trial, and to

the degree the intermediate court’s decision reflects an emphasis upon the weighing

process, I support its efforts to provide guidance to the common pleas courts consistent

with earlier prevailing decisions of this Court.




                           [J-88-2014][M.O. – Castille, C.J.] - 6
