Commonwealth v. Haight

¶1dissenting.

¶2I agree with the majority that witness McCarthy’s testimony regarding appellee’s unemployment and receipt of welfare benefits was irrelevant and thus inadmissible.1 However, I disagree with the majority’s award of a new trial since the admission of this testimony depicting appellee as “poor” was clearly harmless error.

¶3After correctly concluding that the complained-of testimony was irrelevant and therefore inadmissible, the majority states simply: “When there is a ‘reasonable possibility’ that an error may have contributed to a conviction, the error is not harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).” The majority’s statement of our standard of review, however, “only sets the stage for the harmless error inquiry.” Story, supra,476 Pa. at 409, 383 A.2d at 164. In Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), we interpreted Storyas establishing that an error can be harmless on any one of three grounds: 1) that without regard to inadmissible evidence, the evidence of *445guilt is so overwhelming that, without reasonable doubt, conviction would have followed; 2) that the inadmissible evidence was merely cumulative of other properly admitted evidence; or, 3) that the effect of the inadmissible evidence on the jury was de minimis. Id.,498 Pa. at 317, 446 A.2d at 250.

¶4In this case, the effect of McCarthy’s testimony upon the jury, if any, was, in viewing the record as a whole, de minimis. The testimony in this case established a virtually identical case against appellee and his co-defendants, Yuhas and Derek. Joseph Ruskuski, a co-conspirator, testified that he and the three co-defendants at trial planned and executed a burglary on the night of May 4th, 1981. (Notes of Testimony at 119-41) Ruskuski’s wife testified that, after the burglary, appellee and Derek made incriminating statements. (N.T. at 207-08) The Commonwealth presented 14 other witnesses who confirmed, to varying extents, that a burglary had occurred.

¶5The co-defendants presented consistent alibis in an attempt to blame the burglary solely on Ruskuski. Each of the co-defendants testified that they played cards at Derek’s apartment, and then were sleeping there when the burglary occurred. Derek testified that (1) Ruskuski came to his (Derek’s) apartment at 3:00 a.m. the morning of May 5th, 1981; (2) Ruskuski then admitted that he burglarized the building himself, and asked Derek for help; (3) Ruskuski feared his car had been identified at the scene of the crime; and (4) Derek refused to help, and sent Ruskuski away. (N.T. at 357-59) Appellee testified that he heard parts of the discussion between Derek and Ruskuski, and confirmed that Derek sent Ruskuski away. (N.T. at 433) Derek testified that he found a calculator on his porch the morning of May 5th, 1981, and showed it to Yuhas and then to appellee. (N.T. at 360-63) This calculator was taken in the burglary, and was seized by police from Derek's closet later in the day on May 5th, 1981. Appellee and Yuhas confirmed that Derek showed them the calculator. (N.T. at 434-35, 400)

¶6*446This case, then, turned solely on the issue of credibility of the respective witnesses, with Ruskuski and his wife on one side, and the three co-defendants on the other. The jury obviously found Ruskuski’s account more credible than the mutually supportive alibis presented by the three co-defendants. The majority asserts that the testimony concerning appellee’s income could have had an adverse effect on appellee’s credibility, and thus tainted his conviction, stating:

It is certainly a reasonable possibility, then, that the jury could have found the two co-conspirators who were in possession of the stolen items guilty and, believing the story of Appellee, find him not guilty. While this may be unlikely, it certainly cannot be said that it is unlikely beyond a reasonable doubt.

¶7(Majority Opinion at 441.) I disagree.

¶8If Yuhas and Derek had been acquitted in this case, and appellee convicted, then the adverse effect of inadmissible evidence against appellee would be clear. In this case, however, Yuhas and Derek were convicted upon the same evidence, and pursuant to the same jury determination of credibility, as was appellee. Any inadmissible evidence with a presumed effect on credibility was presented against Yuhas and Derek, as well as against appellee, for what affected the credibility of one affected the credibility of all co-defendants. I cannot accept, on the facts of this case, the majority theory that “the jury could have found the co-conspirators who were in possession of the stolen items guilty and, believing the story of Appellee, find him not guilty” had it not been for the testimony regarding his income. To the contrary, the defense presented in this case was an “all or nothing” defense, given the three co-defendants’ consistent, interwoven alibis.

¶9The majority suggests that the testimony concerning low financial status in this case stigmatized appellee as the testimony concerning illegal drug use stigmatized the defendant in Commonwealth v. Williams, 470 Pa. 172, 368 A.2d 249 (1977). (Majority Opinion at 442, n. 1.) This *447reliance on Williams is inapposite. The majority’s suggestion that appellee’s “being on welfare” could have had “a stigmatic effect on jurors” assumes a person is, inherently, a potential criminal simply because he is of poor financial status. I am unwilling to make that assumption, and I am certain the jury would not assume that a person on welfare is likely to steal or is as likely to steal as is a person addicted to drugs.

¶10Thus, the Commonwealth has established, beyond a reasonable doubt, that the testimony concerning appellee’s income did not effect the jury verdicts, and that the trial court’s error in admitting that testimony was harmless error. Norris, supra.

¶11Accordingly, I dissent.