                                   [J-88-2014]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT

     CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS JJ.


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


                                          OPINION


MR. CHIEF JUSTICE CASTILLE                              DECIDED: DECEMBER 30, 2014
         The Commonwealth appeals from a Superior Court Order vacating appellee’s

judgment of sentence for theft by unlawful taking, receiving stolen property, criminal

conspiracy, and corruption of minors,1 and remanding for a new trial. The Superior

Court panel concluded that the trial court abused its discretion in determining that the

probative value of appellee’s prior crime of dishonesty (crimen falsi) substantially

outweighed its prejudicial effect. For the following reasons, we reverse the order below

and remand for the Superior Court to consider appellee’s remaining claim regarding

appellee’s proposed alibi testimony.



1
    18 Pa.C.S. §§ 3921(a), 3925(a), 903(a)(1), and 6301(a)(1)(i), respectively.
                                            I.

      On April 20, 2012, the Commonwealth filed a criminal complaint against appellee

alleging that on April 4, 2012, appellee and two co-conspirators, Barry Martell and D.M.,

a juvenile, stole parts and equipment from RES Coal Company in Goshen Township,

Clearfield County, and later sold the stolen parts to a local salvage yard. On October 4,

2012, appellee filed a motion in limine seeking to preclude the Commonwealth from

impeaching him with evidence of his 1998 crimen falsi conviction which resulted from

appellee’s guilty plea, at twenty-two years of age, to a single third-degree felony count

of receiving stolen property. Acknowledging the specific list of five factors reiterated by

this Court in Commonwealth v. Randall, 528 A.2d 1326 (Pa. 1987), to be considered in

determining whether remote crimen falsi adjudications -- i.e., those that are more than

ten years old -- are admissible as more probative than prejudicial, the trial court found

that the balance of those factors weighed in favor of admitting appellee’s single crimen

falsi conviction for impeachment purposes. Specifically, the trial court 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.

Id. at 1328 (quoting Commonwealth v. Roots, 393 A.2d 364, 367 (Pa. 1978), abrogated

in part as stated in Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009)). The trial court


                                     [J-88-2014] - 2
determined that factors one, three, four, and five weighed in favor of the

Commonwealth, enhancing the probative value of appellee’s crimen falsi conviction,

while only the second factor weighed in appellee’s favor, increasing the potential

improper prejudicial impact of appellee’s prior conviction. With this analysis, the trial

court denied appellee’s motion in limine.

       At trial, D.M., testifying for the Commonwealth, stated that appellee was involved

in the theft and that D.M., Martell and appellee had all agreed to steal the items and sell

them for cash. Appellee then took the stand in his own defense in support of a claim of

total innocence, stating that he was unaware of the theft, and that Martell and D.M. stole

the items without his knowledge or participation. At the close of his testimony, and in

the presence of the jury, the prosecutor asked the trial court to take judicial notice of

appellee’s prior crimen falsi conviction. N.T., 10/22/12, at 201.2

       Thereafter, the parties proceeded immediately to closing arguments. Appellee’s

counsel did not address appellee’s prior crimen falsi conviction during his closing, but

instead, counsel vigorously attacked D.M.’s credibility, employing no unusual points of

impeachment.     Thus, counsel argued that D.M. was not telling the truth, that his

testimony was from a corrupt and polluted source, and that it should be received with

great caution because D.M. had an interest in the outcome of the case, having admitted

to being a thief and being involved in the crime at issue. Id. at 206, 210. In a similar

attempt to persuade the jury not to accept appellee’s testimony, the prosecutor made

use of appellee’s prior conviction in his closing argument as follows:

                    I argue to you that, you know, who’s telling the truth
              and who’s being factually correct and honest with you people

2
 There is no issue before the Court respecting the manner by which the prior conviction
was introduced.




                                      [J-88-2014] - 3
              is an issue for [you to] decide, but after the [C]ommonwealth
              -- or, after the defendant testified, the [C]ommonwealth
              introduced a prior conviction of the defendant for a crime
              called receiving stolen property.

                      And I offered that, or am allowed to offer that, to you
              because receiving stolen property’s called a crimen falsi, a
              crime of dishonesty. So I don’t say, hey, the defendant was
              convicted of receiving stolen property in the past; therefore,
              he must have done it this time. I say to you that the
              defendant was convicted in the past of a crime of dishonesty
              so, therefore, you can consider that when you decide who’s
              telling the truth, who’s being honest or dishonest.

Id. at 232. Appellee lodged no objection to the prosecutor’s argument.

       Immediately following closing arguments, the court issued its jury instructions,

which included its instruction regarding the treatment of appellee’s prior crimen falsi

conviction. The court stated:

                      Now, there was evidence here tending to show that
              the defendant has a prior criminal conviction. And I'm talking
              about the record introduced by the [C]ommonwealth as to
              his prior conviction of receiving stolen property, all right.

                     Note that this evidence about that prior conviction
              from 1998 is not evidence of the defendant’s guilt. You must
              not infer guilt from the evidence of that prior conviction. This
              evidence may be considered by you for one purpose only.
              That is, to help you judge the credibility and weight of the
              testimony given by the defendant as a witness in this trial.

                     So in considering the evidence of that prior conviction,
              you may consider the type of crime committed and how long
              ago it was committed, and how it may affect the likelihood
              that the defendant has testified truthfully in this case.

Id. at 246-47. Neither party objected to this instruction.

       Following trial, the jury found appellee guilty of theft by unlawful taking, receiving

stolen property, criminal conspiracy and corruption of minors.         The trial court later




                                      [J-88-2014] - 4
sentenced appellee to an aggregate term of twenty-one to sixty months of

imprisonment, and appellee appealed to the Superior Court.

       On appeal, appellee raised two evidentiary issues: he claimed that the trial court

abused its discretion in admitting his prior crimen falsi conviction, and in prohibiting the

testimony of appellee’s alibi witness. Addressing the crimen falsi issue, the Superior

Court panel, in an unpublished decision, reweighed the five factors addressed in

Randall, and vacated the judgment of sentence and remanded the matter for a new trial.

Given its disposition, the panel did not reach the issue of appellee’s alibi witness. On

the Randall question, the panel agreed with the trial court that factors one, four and five

weighed in favor of the Commonwealth, i.e., in favor of admissibility, but took issue with

the trial court’s weighing of factors two and three. Regarding the third factor -- the

defendant’s age and circumstances -- the panel found that commission of a crimen falsi

at the age of twenty-two could not be held against appellee, and therefore this factor

was neutral, instead of weighing in favor of the Commonwealth as the trial court had

concluded.    And finally, with respect to the second factor -- the likelihood of the

defendant’s record having a greater tendency to prejudice the defendant by showing a

criminal propensity rather than to discredit -- the panel disagreed that this factor merely

weighed in favor of appellee, but insisted instead that it weighed heavily in appellee’s

favor, indeed to the extent of “extreme prejudice.” Super. Ct. Slip Op. at 14. Based on

the panel’s disagreement with the trial court regarding these two out of the five relevant

factors, the panel concluded that the trial court abused its discretion in admitting

evidence of appellee’s prior crimen falsi conviction. We granted the Commonwealth’s

petition for allowance of appeal.




                                      [J-88-2014] - 5
                                             II.

       In support of the trial court’s discretionary evidentiary ruling, the Commonwealth

argues that the admission of appellee’s prior conviction was proper according to the

relevant five-factor analysis set forth by this Court in Randall. The Commonwealth

contends that the sole purpose of admitting the prior conviction was to impeach

appellee’s credibility since he took the stand as a witness in his own defense, and his

testimony, claiming non-involvement, was the only direct evidence of such non-

involvement, and the testimony of the lone eyewitness presented by the Commonwealth

directly contradicted appellee’s account. While the parties and the lower courts agree

that the first Randall factor -- the degree to which the prior conviction reflects on veracity

-- favors admissibility since the prior offense was crimen falsi in nature, the

Commonwealth argues that the second factor -- the likelihood of a greater tendency that

the criminal record will prejudice the defendant by showing criminal propensity -- should

not weigh as heavily as the Superior Court panel weighed it in favor of appellee. The

Commonwealth does not contest that there was a potential for prejudice to appellee, but

maintains that the test is whether the prejudice is outweighed by probative value, and in

the Commonwealth’s view, the remaining factors reveal the probative value of the prior

offense in the instant matter.

       Moreover, the Commonwealth insists that the likelihood of improper prejudice

was low in this case because the prosecutor’s references to the prior offense were few

and brief, and because the prosecutor specifically argued to the jury that the crime was

relevant only to assess appellee’s truthfulness on the stand, and not to show his

criminal propensity. The Commonwealth further notes that the single prior offense at

issue would have less of a tendency to cause an unfair prejudicial effect than was

present in several other Pennsylvania reported decisions where multiple prior offenses




                                       [J-88-2014] - 6
were deemed admissible for purposes of impeachment, despite the potential to suggest

criminal propensity. See, e.g., Rivera, 983 A.2d at 1228 (“we conclude that the trial

court acted within its discretion in determining that Appellant’s [five] previous crimen

falsi adjudications were more probative than prejudicial.”).

       Further addressing the third factor, the Commonwealth argues that a twenty-two-

year old individual should be regarded as responsible and accountable for his actions,

and that appellee’s age at the time of his prior crime should not be regarded as lowering

the probative value of the evidence in this case, but should actually weigh in favor of

admissibility. In support of this argument, the Commonwealth again cites Rivera, where

this Court concluded that the trial court acted within its discretion in determining that

juvenile adjudications involving crimen falsi were more probative than prejudicial. And,

with regard to factors four (strength of case) and five (existence of alternate means of

impeachment), the Commonwealth explains that this case came down to a credibility

determination between appellee and the Commonwealth’s chief witness -- two accused

criminal confederates -- who had starkly different versions of the events, and therefore

appellee’s prior conviction was essential to the Commonwealth’s case. Along these

lines, the Commonwealth notes that there was no other direct impeachment evidence

available to the government. Thus, the Commonwealth maintains that the trial court did

not abuse its discretion in allowing the Commonwealth to introduce, and then make

reference to, the single prior crimen falsi for impeachment purposes only.

       In response, rather than make a specific argument as to how the trial court might

have abused its discretion, appellee insists that:

              [T]he only issue before this Honorable Court is whether the
              probative value of [appellee’s] 1998 Receiving Stolen
              Property conviction substantially outweighs the prejudicial
              effect after [appellee] testified he did not steal, did not




                                      [J-88-2014] - 7
              receive stolen property and did not conspire with others to
              steal property.

Appellee’s Brief at 4. According to this framing of the issue before this Court, the bulk of

appellee’s argument concerns the proper weighing of the prejudicial effect and

probative value of his prior crimen falsi conviction. Appellee thus focuses his attention

on the second factor of the five-factor analysis -- the likelihood of a greater tendency of

the defendant’s criminal record to smear him by showing his criminal propensity.

Appellee then attempts to support the panel’s reweighing of this factor by looking

primarily to caselaw from outside of this Commonwealth and other Superior Court

precedent to make the point that evidence of a prior conviction for the very same crime

for which a defendant is being tried contains an inherent suggestion of criminal

propensity.    Appellee maintains that since the evidence against him was not

overwhelming, the admission of the prior offense in this instance was particularly

damaging and prejudicial. Appellee concedes that the credibility determination was the

central issue at trial. Nonetheless, appellee discounts precedent relied upon by the trial

court for the proposition that the need to introduce evidence of prior crimen falsi

convictions is high where the jury must decide whether to believe a single

Commonwealth witness or a single defense witness in order to reach a verdict.

Appellee’s Brief at 8 (citing Commonwealth v. Palo, 24 A.3d 1050 (Pa. Super. 2011)).

       Appellee makes no attempt to support the panel’s holding regarding the third

factor, i.e., that a crime by a twenty-two year old ought not to be used against him

thereafter because of his age.       Notwithstanding, appellee insists that the Superior

Court’s ruling should be affirmed because the probative value of his prior crimen falsi

conviction did not substantially outweigh its potential prejudicial effect.




                                       [J-88-2014] - 8
                                              III.

       We hold that the Superior Court panel’s decision cannot stand, because the

panel paid insufficient deference to the discretionary decision of the trial court, and is

not otherwise supported by Pennsylvania law. “When reviewing the denial of a motion

in limine, this Court applies an evidentiary abuse of discretion standard of review. . . . It

is well-established that the admissibility of evidence is within the discretion of the trial

court, and such rulings will not form the basis for appellate relief absent an abuse of

discretion.” Rivera, 983 A.2d at 1228 (citation and quotation marks omitted). Thus, the

Superior Court may reverse an evidentiary ruling only upon a showing that the trial court

abused that discretion. Commonwealth v. Laird, 988 A.2d 618, 636 (Pa. 2010). A

determination that a trial court abused its discretion in making an evidentiary ruling “may

not be made ‘merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be clearly erroneous.’” Id. (quoting

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)). Further, discretion is

abused when the law is either overridden or misapplied. Commonwealth v. Randolph,

873 A.2d 1277, 1281 (Pa. 2005).

       Our review of the Superior Court’s assessment of the trial court’s discretionary

decision, of course, is not deferential, but plenary and de novo. This Court is in the

same position as the Superior Court when reviewing discretionary trial level

determinations. Moreover, we are mindful that the question is not how we might have

balanced the Randall factors had we been presiding over the trial. The question is

whether the trial court’s balancing fell within its discretionary authority.

       Here, the Superior Court panel recognized that the trial court correctly identified

and considered the governing substantive law: the Randall line of cases setting forth the




                                       [J-88-2014] - 9
requisite factors governing the admission of remote crimen falsi convictions. Nor did the

panel, or appellee for that matter, suggest that the trial court’s judgment was manifestly

unreasonable, the product of partiality, prejudice or ill-will, clearly erroneous, or

represented a misapplication, or overriding of, Pennsylvania law. Rather, in overturning

the trial court, the panel appears to have reweighed the probative value of appellee’s

prior crimen falsi offense and its potential prejudicial effect by reapplying the requisite

five-factor analysis on its own assessment, and then determined that the trial court

abused its discretion because the panel, analyzing a cold record, reached a different

conclusion. The panel’s approach and determination cannot stand.

       The difference between the trial court’s analysis and that of the Superior Court

fundamentally is not a matter of legal error on the part of the trial court, but a reflection

of differences in judgment in weighing and reweighing the same identified factors, yet

reaching different conclusions. On the record here, where the trial court considered all

factors in light of the case that unfolded before it, and where measures were taken, both

by the trial court and the prosecutor, to ensure that the crimen falsi evidence was not

misunderstood or misused, it cannot be said that the trial court’s decision suffers from

such a lack of support that it is clearly erroneous. This is particularly so where there is

no real dispute that of the five enumerated considerations in Randall, only one, a factor

which was addressed and weighed by the trial court, has been argued to counsel

against the trial court’s discretionary decision.     At least three of the remaining four

factors counsel in support of the trial court’s discretionary ruling.

       But, it is not a matter of merely counting up factors. The vesting of discretion

allows for flexibility in balancing factors, according to the circumstances.       Thus, for

example, there is certainly some force in appellee’s argument that, when the prior crime

involves the same basic offense currently being tried, there is a greater likelihood that a




                                       [J-88-2014] - 10
juror might lapse into viewing the prior crime as indicating a propensity for that particular

type of crime. But, on the other hand, here, there was but one prior offense; obviously,

the greater the number of prior crimen falsi convictions, the greater the danger of

assuming propensity. And, the trial court took specific measures to deter the jury from

considering the crimen falsi as establishing propensity.         Appellee’s argument that

admission of his crimen falsi could have been particularly harmful because the case

came down to the credibility of two witnesses and the evidence thus was not

overwhelming misses the complexity of the trial court’s discretionary task. If the crimen

falsi undermined appellee’s case because the jury used it as a basis to discredit his

testimony -- which is how the evidence was posed to the jury by both the prosecutor

and the judge -- that was a proper use, properly “prejudicial” to appellee’s case, and not

a basis for exclusion. Moreover, in understanding the totality of the circumstances

affecting the trial court’s decision, it should be remembered that the Commonwealth’s

prime witness was subject to impeachment as well, on multiple grounds, which

obviously increases the importance, to the Commonwealth, of a similarly well-

established form of impeachment. The point, we reiterate, is not how an appellate court

might balance all of these factors, but rather, whether the trial court’s balancing so

departs from what is reasonable that it can be set aside.

       Beyond the panel’s failure to observe the jurisprudential limitations of the abuse

of discretion standard of review, the Superior Court approach and decision are

inconsistent with Pennsylvania law. Evidence to impeach the credibility of a witness is

admissible so long as it is relevant to that purpose and not otherwise barred. Pa.R.E.

607(b). Under settled law, evidence that a witness has been convicted of crimen falsi is

generally admissible, unless the conviction (or release from confinement, whichever is

later) is more than ten years old. Pa.R.E. 609(a), (b). It is only when the crimen falsi




                                      [J-88-2014] - 11
conviction is more than ten years old, as it is here, that evidence of the conviction

becomes conditioned on the probative value of the evidence substantially outweighing

its potential prejudicial effect. Pa.R.E. 609(b)(1). The five Randall factors then guide

that discretionary determination.

       Here, the trial court concluded that evidence of appellee’s prior crime was

admissible because, although the prior conviction might suggest criminal propensity to

the jury, each of the other relevant factors weighed in favor of the Commonwealth. The

court found that the prior conviction reflected on appellee’s veracity and that appellee

was old enough at the time of the conviction to have appreciated the consequences of

his actions. Further, the court found that the Commonwealth’s case relied on D.M.’s

testimony of the events, which conflicted with appellee’s account. Therefore, the court

concluded, the Commonwealth’s need to use the prior conviction as impeachment

evidence was high because alternative means of attacking appellee’s veracity were

minimal. As noted, the court instructed the jury to limit its consideration of appellee’s

prior crimen falsi offense to the sole purpose of assessing the credibility and weight of

his testimony, and the Commonwealth specifically argued that the evidence was offered

only to impeach appellee’s credibility.

       The Superior Court panel agreed that the conviction reflected upon appellee’s

veracity and that the Commonwealth needed the evidence to attack appellee’s

credibility. Nevertheless, the panel disagreed, apparently as a matter of law, with the

weight that the trial court afforded to appellee’s age at the time of the prior conviction

and the weight afforded to the similarity between the prior and instant crimes in

determining prejudice, again apparently as a matter of law. Notably, the panel cited

former Chief Justice Nix’s dissenting opinion in Randall when it stated, without

underlying support, that “the probative value of a conviction when an individual is in his




                                     [J-88-2014] - 12
early twenties is small” and, as a result, held that its value in the five-factor analysis was

“neutral and neither weigh[ed] in favor nor against introduction of the prior conviction.”

Super. Ct. Slip Op. at 10-11 (citing Randall, 528 A.2d at 1331 (Nix, C.J., dissenting);

United States v. Norton, 26 F.3d 240, 244-45 (1st Cir. 1994); and United States v.

Williams-Ogletree, No. 11 CR 203-3, 2013 WL 66207, at *7 (N.D. III. Jan. 4, 2013)).

Additionally, the panel held that the trial court “understated” the “extreme” prejudicial

effect of appellee’s single 1998 conviction in light of the similarities with the charges that

appellee was facing. According to the panel, “[i]t [wa]s hard to imagine how the jury

would not have inferred that [appellee] had a propensity to commit the instant offenses

because of his prior conviction.” Super. Ct. Op. at 14. So then, because, in the panel’s

view, this “extreme” prejudicial effect outweighed the probative value of the prior crimen

falsi, the panel concluded that its admission was an abuse of the trial court’s discretion.

       The panel’s idiosyncratic approach is not supported by Pennsylvania law. 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 evidence. See Commonwealth v. LaCava, 666 A.2d 221, 229 (Pa. 1995).

Here, the jury was specifically instructed that the prior conviction was not evidence of

appellee’s guilt and that the jury was required to consider it for the limited purpose of

judging the credibility and weight of the testimony given by appellee as a witness in this

trial. There is no reason to believe that the jury did not follow the trial court’s instruction.

See id. at 228 (jury presumed to follow trial court’s instruction regarding limited purpose

of evidence).

       Furthermore, the panel appears to have created a new standard for admitting

evidence of a prior conviction for impeachment purposes with respect to the youth of the




                                       [J-88-2014] - 13
defendant, which is at odds with the controlling rule of evidence. Under Evidence Rule

609(d), in a criminal case, even evidence of an adjudication of juvenile delinquency

“may be used to impeach the credibility of a witness if conviction of the offense would

be admissible to attack the credibility of an adult.” Consistently, there is no support in

Pennsylvania law for the proposition that the probative value of a young adult offender’s

conviction “is small.”   Indeed, former Chief Justice Nix did not comment about the

intrinsic probative value of a youthful conviction in his Randall dissent, but rather, what

he believed was the arbitrary nature of the Randall majority’s per se rule of admissibility

with a 10-year cutoff; the dissent’s examples spoke about the relevance of the prior

conviction in several different scenarios. 528 A.2d at 1330-31. The remaining cases

cited by the Superior Court panel are from other jurisdictions, as the Commonwealth

accurately notes. The Superior Court’s decision on this point appears to reflect -- and to

greatly expand upon -- the U.S. Supreme Court’s recent focus on youth as an element

diminishing culpability in criminal matters. See, e.g., Miller v. Alabama, 132 S. Ct. 2455

(2012) (Eighth Amendment prohibits mandatory sentence of life without parole for

juvenile murderers); and Graham v. Florida, 560 U.S. 48 (2010) (Eighth Amendment

prohibits sentence of life without possibility of parole for juvenile convicted of non-

homicide offense).

      This appeal, however, poses a non-constitutional issue involving settled

principles of Pennsylvania evidentiary law, and a trial court’s exercise of discretion

under those principles. There was no need, or warrant, for the Superior Court to seek

to innovate a novel standard for admitting a prior conviction for impeachment purposes,

particularly one based on federal sources, since the applicable Pennsylvania Rule of

Evidence and the corresponding federal rule, F.R.E. Rule 609, are quite distinct. Thus,

while subsection (d)(2) of the corresponding federal rule limits the admissibility of




                                     [J-88-2014] - 14
juvenile adjudications to those of witnesses other than the defendant, subsection (d) of

the Pennsylvania rule, as stated, contains no such limitation, but specifically allows the

use of juvenile adjudications for impeachment purposes. Thus under Pennsylvania law,

prior adult convictions of crimes of dishonesty remain fair game for impeachment in

appropriate circumstances.

       The Superior Court’s decision is reversed and the case is remanded to that court

to decide appellee’s remaining evidentiary issue. Jurisdiction is relinquished.



       Former Justice McCaffery did not participate in the decision of this case.

       Messrs. Justice Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens

join the opinion.

       Mr. Justice Saylor files a dissenting opinion.




                                     [J-88-2014] - 15
