Commonwealth v. Williams , 524 Pa. 404 ( 1990 )

OPINION OF THE COURT

LARSEN, Justice.

The issue raised by this appeal is whether it is harmless error to permit a witness to be cross-examined with respect to prior convictions for offenses not involving dishonesty or false statement.

Appellant, Donald Williams, was arrested on January 30, 1984, and charged with robbery and possession of an instrument of crime. He was tried before a jury in the Court of Common Pleas of Philadelphia County and convicted of both charges. Following the denial of his post-trial motions, appellant was sentenced to eight to twenty years’ imprisonment for the robbery and a concurrent term of two and one-half to five years for the weapons offense. Appellant filed an appeal to Superior Court, and that court found that the impeachment of the defense witness on the basis of his prior convictions of resisting arrest and assault was error.¹ However, Superior Court determined that the error was harmless because the effect of the impeachment on the jury was de minimis in light of the “abundant evidence” presented supporting appellant’s conviction, and because the cross-examination/testimony regarding the witness’ convictions of offenses not involving dishonesty or false statement was cumulative of other properly admitted impeachment evidence which involved the witness’ prior conviction of attempted theft. Commonwealth v. Williams, 371 Pa.Super. 509, 515, 538 A.2d 557, 560 (1988).

We granted appellant’s petition for allowance of appeal, and we now reverse.²

Superior Court properly found that a witness may not be impeached on the basis of convictions for crimes not involving dishonesty or false statement. As this Court stated in Commonwealth v. Penn, 497 Pa. 232, 244, 439 A.2d 1154, 1160 (1982), cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982), “[i]t is well settled that a witness may be impeached on the basis of a prior conviction only if the crime involves dishonesty or false statement.” (emphasis added)

Defense witness Gannon Haskins, who testified as an eyewitness that the conduct giving rise to the charges against appellant was committed by three individuals other than appellant, was asked the following questions by the prosecutor on cross-examination:

Q. You weren’t released on parole by Judge Stiles until January the 10th, 1984; is that correct?

A. Yes.

Q. You had been incarcerated before then for about eight months, hadn’t you?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

Q. Isn’t that correct?

A. Yes.

Q. Then Judge Stiles released you on parole after being convicted of assault and resisting arrest; isn’t that correct?

[DEFENSE COUNSEL]: Objection....

[sidebar conference omitted]

Q. You are sure that it was in January of 1984?

A. Yes.'

Q. It couldn’t have been after February the 20th, 1984, could it?

[DEFENSE COUNSEL]: Objection.

THE COURT: It is cross-examination. I will allow it.

[DEFENSE COUNSEL]: But he is repeating the question.- He has already testified as to the same.

THE COURT: Well—

[PROSECUTOR]: I will withdraw that question.

Q. Mr. Hankins [sic], were you not arrested and convicted for carrying firearms on the street—

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

Q. —on February the 20th, 1984?

A. Yes, I was.

Q. So you happened to be out of jail during this forty day period when you were at 12th and Spring Garden?

A. Yes.

Notes of Testimony (May 5, 1986) at 110-113.

The convictions for resisting arrest, assault, and carrying firearms on public streets do not involve dishonesty or false statement. Thus, appellant’s objections to the questions which elicited the testimony regarding these convictions should have been sustained, and this evidence should not have been admitted.

We must, however, determine if the erroneous admission of this testimony was harmless error. In the seminal case of Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978), this Court stated that “an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” The burden of establishing that the error was harmless beyond a reasonable doubt rests with the Commonwealth. Id., 476 Pa. at 406 n. 11, 383 A.2d at 162 n. 11.

Error is considered to be harmless where: 1) the error did not prejudice the defendant or the prejudice was de minimis; or 2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. Id., 476 Pa. at 410-15, 383 A.2d at 164-66.

In order to determine whether the impeachment of the witness was de minimis, we must assess whether the Commonwealth has shown, beyond a reasonable doubt, that the error did not influence the jury. The central issue in the case was the identification of appellant as the perpetrator of the robbery of the proprietor of a check cashing agency. The victim and two other witnesses for the Commonwealth positively identified appellant as the perpetrator. One of the two other witnesses was a police officer who testified that he was in his automobile, stopped at a traffic light, when he saw appellant holding a gun to the victim’s side as the two stood on the sidewalk in front of the check cashing agency. The police officer followed appellant as appellant attempted to flee the scene and lost sight of appellant only briefly before he was apprehended by a second police officer. According to the police officer, the victim identified appellant at the scene immediately following appellant’s arrest.

In support of the defense theory of misidentification, Gannon Haskins and the appellant testified that the robbery was committed by three other individuals who fled the scene when appellant just happened to appear at the site of the robbery, and that the victim and another eyewitness were unable to positively identify appellant at the scene immediately following appellant’s arrest. Clearly, the Commonwealth was able to seriously impeach the credibility of appellant’s only corroborating eyewitness by presenting to the jury evidence that this witness was a man who had been in and out of jail and had been convicted of a series of crimes, only one of which involved dishonesty or false statement. Inasmuch as the Commonwealth’s case was bolstered by the testimony of a presumably respected officer of the law who happened to be an eyewitness to the crime, we cannot say, beyond a reasonable doubt, that the improper impeachment of Gannon Haskins did not influence the jury. Thus, the prejudicial impact of the error was not de minimis, and the Commonwealth has not carried its burden of proving that the error was harmless beyond a reasonable doubt on this basis.

Furthermore, the Commonwealth would not have been able to sustain its burden on either of the other two grounds set forth in Story, supra. The cross-examination/testimony concerning Haskins’ convictions for offenses not involving dishonesty or false statement was not cumulative of other untainted evidence regarding his criminal past. The Court in Story, supra, cites numerous cases in discussing the “cumulative evidence” approach to the harmless error doctrine. 476 Pa. at 411, n. 20, 383 A.2d at 165, n. 20. In all of those cases, the tainted evidence and the properly admitted evidence were substantially similar. The same cannot be said of the tainted evidence and the properly admitted evidence herein. Convictions of resisting arrest, assault, and carrying firearms on public streets are not substantially similar to a separate conviction of attempted theft.

Additionally, the properly admitted evidence of guilt was not so overwhelming that the error could not have contributed to the verdict, because the properly admitted evidence of guilt was not uncontradicted. Pursuant to the analysis set forth in Story, supra, the properly admitted evidence of guilt must be uncontradicted for error to be held harmless beyond a reasonable doubt. The testimony of appellant and his corroborating eyewitness, Gannon Haskins, directly contradicted the testimony of the witnesses for the Commonwealth.

Accordingly, we reverse the order of Superior Court affirming the judgment of sentence herein, and we remand to the Court of Common Pleas of Philadelphia County for a new trial.

ZAPPALA, J., files a joining concurring opinion in which CAPPY, J., joins. NIX, C.J., concurs in the result. McDERMOTT, J., files a dissenting opinion which PAPADAKOS, J., joins.

2 . The grant of allocatur was limited to the within issue.