Admission of Prior Conviction for Impeachment Purposes; Waiver of Claim of Error
Com. v. Stevenson, 287 A.3d 903 (Pa. Super. 2022), allocatur granted Aug. 9, 2023, appeal docket 23 EAP 2023
In this case, the Pennsylvania Supreme Court will consider whether, following the trial court’s denial of a defendant’s motion in limine to preclude admission of a prior conviction for impeachment purposes, the defendant’s own direct testimony preemptively acknowledging the previous burglary conviction waives the defendant’s right to challenge the denial of the motion in limine on appeal.
Superior Court summarized the facts specific to this case as follows:
On December 3, 2017, Wenting Ruan (“Katie”) and Yuguan Lin (“Lin”) parked their vehicle in front of 3000 North Franklin Street in Philadelphia, where the couple resided and operated a beer distribution center. As they exited their vehicle, Appellant and his two cohorts surrounded them, taking Katie’s purse and Lin’s iPhone. The purse contained approximately $700, a checkbook, and a red wallet. The perpetrators then demanded entry into the building. Once inside, the three men threatened Katie and Lin with violence while filling black plastic bags with money, Newport cigarettes, and Black & Mild cigars.
Once the parties fled, Katie called the police who tracked Lin’s stolen iPhone to a parked vehicle. Inside the vehicle, the police found Appellant seated in the front passenger seat on top of Katie’s red wallet while surrounded by Newport cigarettes and Black & Mild cigars. Appellant was arrested and charged with two counts of robbery, burglary, and criminal conspiracy. Execution of a search warrant for the vehicle uncovered Lin’s stolen iPhone, a ski mask, and clothing consistent with the victims’ description of Appellant.
Appellant elected to be tried by a jury. After the Commonwealth’s case-in-chief, Appellant indicated that he planned to testify. See N.T. Jury Trial, 3/12/20, at 68-72. Trial counsel told the court that Appellant had a prior conviction for burglary resulting from a guilty plea in 2005 and admitted that the conviction likely qualified as crimen falsi. Id. at 70. However, counsel requested that the court preclude its admission on remoteness grounds. Id. The Commonwealth briefly countered that the conviction should be admissible given “the nature of the charges.” Id. at 70-71. The trial court denied Appellant’s oral motion in limine. Id. Trial counsel immediately conducted a supplemental colloquy of Appellant, inquiring whether the admissibility of Appellant’s prior conviction altered his decision to testify. Id. at 71-72. Appellant indicated that the ruling had no effect on his desire to testify and acknowledged that this decision was in direct contradiction of trial counsel’s advice. Id. Thereafter, Appellant testified, asserting his innocence. At the conclusion of his direct-examination, trial counsel asked and Appellant confirmed that in 2005 he pled guilty to burglary. Id. at 84. The Commonwealth did not re-visit Appellant’s prior conviction during its cross-examination or mention it during closing arguments. Id. at 85-94. In its closing charge to the jury, the trial court provided a cautionary instruction specific to the prior burglary conviction. Id. at 144-45.
The jury found Appellant guilty of the above referenced offenses and the trial court imposed the sentence indicated above. Appellant filed a timely post-sentence motion, challenging the sufficiency of the evidence and the admission of his prior burglary conviction, which was denied.
Slip op. at 1-3.
Stevenson appealed, challenging the trial court’s denial of his motion in limine to preclude his 2005 burglary conviction. The Commonwealth countered that Stevenson waived the issue on appeal by admitting to his own prior conviction.
Superior Court affirmed the trial court and held that Stevenson waived his claim of error regarding use of the prior burglary conviction, reasoning that while Stevenson “initially preserved his claim of error”:
…a properly preserved issue may be forfeited when a defendant introduces the evidence at trial. In Commonwealth v. Conner, 462 Pa. 282, 341 A.2d 81, 84 (1975), our Supreme Court held that when a defendant introduces evidence at trial, he cannot later raise a claim of error challenging the admission of that evidence. Therein, the defendant’s trial counsel anticipated that his prior convictions would come in on cross-examination and made the strategic decision to tactically introduce them through his direct examination of the defendant. Once admitted by the defense, the Commonwealth did not revisit the issue. The defendant was later convicted and appealed his conviction, arguing that the admission of his prior convictions constituted a due process violation.
Our Supreme Court found that the claim was waived, explaining:
[the defendant] introduced his past criminal record as a matter of trial strategy, to support his credibility and soften the *906 anticipated blow in the eyes of the jurors. Having adopted this strategy, which appeared to be in his best interest, [the defendant] cannot now be heard to complain that his own act of offering such evidence violated his constitutional rights. Under these circumstances, a new trial is not warranted.
Id. at 84. Importantly, while the Conner opinion did not involve a motion in limine, our High Court did not limit its holding to that precise circumstance. Instead, the Court’s analysis focused on which party admitted the conviction. Id. at 83-84.
Herein, like the defendant in Conner, Appellant made the strategic decision to admit his prior conviction in order to lessen the sting of the Commonwealth’s anticipated elicitation of the conviction on cross-examination. Accordingly, while the procedural history in Conner is not identical to ours, the fact that the defendants in both cases introduced the convictions themselves and then challenged the admission later is the crucial point. Thus, our Supreme Court’s decision in Conner supports the Commonwealth’s position that claim forfeiture applies. See Commonwealth’s reply brief at 2.
Slip op. at 5-6. Superior Court further noted that its forfeiture analysis is consistent with other Pennsylvania cases holding “that a defendant forfeits claims of trial court error concerning the admission of objectionable evidence when he ‘opens the door’ to the evidence” and federal law “which provides that a defendant cannot later challenge an adverse motion in limine ruling on appeal if he testifies and admits the at-issue prior conviction on direct examination.” Slip op. at 6-7. Thus, Superior Court concluded that:
In sum, an appellant who receives an adverse evidentiary ruling can either preserve the issue for appeal by lodging an objection to the introduction of the evidence, or he can make a strategic choice to forfeit the objection and preemptively introduce the evidence himself. He cannot do both simultaneously. Herein, Appellant chose the latter. Due to the forfeiture of the claim of error, Appellant is not entitled to litigate the propriety of the trial court’s ruling in this appeal.
Slip op. at 7-8.
The Pennsylvania Supreme Court granted allocatur as to the following issue:
Where a trial judge rules that a nearly thirteen[-]year[-]old prior conviction may be used for impeachment and the defendant then testifies and preemptively admits the conviction, does doing so waive the right to appeal the in limine holding?
For more information, contact Kevin McKeon or Dennis Whitaker.