Comm. v. Crosley, 2018 PA Super 43 (Feb. 28, 2018)

This was an appeal out of Delaware County.  Following a bench trial, the trial court convicted Crosley of third-degree murder, in addition to firearms offenses, and sentenced him to 10 to 25 years imprisonment.  He was additionally ordered to pay $7,864.72 of restitution to the Pennsylvania Victim’s Compensation Fund.  On appeal, Crosley raised three challenges: one challenged whether there was sufficient evidence to convict for third-degree murder; one challenged whether the order of restitution was unsupported; and lastly, and importantly, one challenged whether the trial court properly allowed in evidence of Crosley’s prior conviction for aggravated assault.

Briefly, to understand these challenges, consider the factual background.  Crosley had been living in an outside shed attached to a residence occupied by a family—the Mitchells.  About three months into Crosley’s stay on the Mitchells’ property, Mrs. Mitchell told her husband that she wanted Crosley “out,” and she would not wait any longer.  After this conversation happened on the second floor of the residence, Mr. Mitchell went to the basement where Crosley had been at that moment.  At the same time, Mrs. Mitchell jumps in the shower, but while in the shower she hears what she believes to be a gunshot.  She calls to her eight year-old daughter and tells her to get her dad.  The daughter, in search of her father, goes to the first floor, called out for her dad, and her father answered her from the basement.

The daughter went to the basement.  She peeked around a partial wall and there she saw her father and Crosley struggling with their hands on a gun.  By her account, her father was asking Crosley to give him the gun and “let’s sit down and talk about . . . what you just did.”  Crosley said nothing.  Accordingly, the daughter ran back upstairs to her mother and told her that her father and Crosley were fighting.  Mrs. Mitchell, thereafter, ran from the shower to the upstairs window where she saw Crosley chasing her husband and shooting at him in the alley below.  She yelled at Crosley to stop, but Crosley paused, turned toward her and said, “he takes me for a fool,” and then took another shot at her husband. From there, Crosley began to run back toward the house, so Mrs. Mitchell ordered her children out of the house and told them to get help.  She then quickly got dressed and ran out to find her husband down the street from their home, lying in the sidewalk with “a hole in his chest.”  Mr. Mitchell, of course, died.

The following day Crosley was arrested.  He voluntarily gave the police a statement about what happened.  His side of the story was that Mr. Mitchell had pulled a gun on him while two men were holding him in the basement.  When asked whether something had happened the day before the shooting, Crosley told police that he had to disarm Mr. Mitchell and he hid the gun in an alley about a block away.  Crosley agreed to take the police to that location where the gun was hid.  And there the police found a revolver covered in a plastic bag.

At trial, Crosley also took the stand and there too told his side of the story.  Particularly, at trial, Crosley testified that on the day of the shooting he had volunteered to clean the deck.  Mr. Mitchell led Crosley through the kitchen then locked the door behind him such that it was impossible for him to re-enter the house.  Because he was getting cold outside, Crosley jumped from the deck and got into the house through the basement where he was met by Mr. Mitchell.  By Crosley’s account, Mr. Mitchell was angry and cursing; he was carrying a gun.  Crosley thought Mr. Mitchell was going to kill him because he had threatened to do so before.  Therefore, according to Crosley, it was him that was telling Mitchell to “take it easy,” “calm down,” and “don’t do it.” Crosley testified that he thought Mitchell shot at him, and he said he (Crosley) grabbed the gun only after Mitchell fired at him a second time.  He denied chasing Mr. Mitchell; he denied firing the gun; and he said that he hid the gun because was “scared” and “confused.”

Crosley slept in the park the night of the shooting, he told the court.  He didn’t get the chance to call the police and explain his circumstances before he was arrested despite having a cell phone.  He testified that he believed Mr. Mitchell wanted him out of the house because Mitchell would “‘sell weed, like 50 pounds into a big bag and coke sometimes,’” and he claimed to have called police to report mistreatment and threats he suffered at Mr. Mitchell’s hands.  That was the gist of his testimony.

On the whole, the trial court did not credit Crosley’s testimony over that coming from the Mitchell family and the Commonwealth’s witnesses.  By the trial court’s estimations, there was certainly sufficient evidence to convict for third-degree murder.  But the more interesting issue arose over whether the trial court was wrong to permit into evidence, over objection, Crosley’s recent conviction for aggravated assault the year before.  The Commonwealth’s position was that this conviction rebutted evidence that Mr. Mitchell had assaulted Crosley and threatened him in the past.

The Superior Court said that this evidence was admissible; it found that the trial court did not abuse its discretion in admitting it. The Superior Court noted: “Our jurisprudence permits the use of a defendant’s prior non-crimen falsi [crimes of dishonesty] conviction where it is limited to the specific rebuttal of the defendant’s unsolicited testimony of his good character.”

Here, Crosley had volunteered his character for nonviolence where he specifically denied having ever before possessed a weapon.  Explaining why he ran with the gun and hid it after the shooting, he testified:

I got scared.  I didn’t want nobody to see me with any weapon because I never, I never hardly has a weapon, I never carry a weapon.  I never carry a weapon before so I didn’t want nobody to see me with a weapon so I was going to throw it [the handgun in question] in the trash can.

The Superior Court said Crosley’s aggravated-assault conviction—founded on allegations that he threatened and attacked a security guard while holding a sharp object—was “permissible to rebut [Crosley’s] unsolicited character testimony that he never before carried a weapon.”

The Superior Court noted that its reason for deeming the conviction as admissible was different than the trial court’s reason.  The trial court (and the Commonwealth) had contended that the conviction was admissible to rebut Crosley’s claims about Mitchell’s prior bad acts of violence toward him.  However, on this point, the Superior Court acknowledged “there is no specific statute or rule of evidence” that allowed that.  While the Rules of Evidence grant the defendant the right to prove a victim’s pertinent trait of character by reference to specific instances of conduct, see 404(a)(2)(B) and 405(b)(2), the Commonwealth did not have a reciprocal right as it pertained to showing the defendant’s character.  The Commonwealth was limited “to proving the defendant’s character trait with testimony about the defendant’s relevant reputation, pursuant to Rule 405(a).”

So, interestingly, on the one hand, the Superior Court says Crosley’s prior conviction was not admissible, as the trial court believed, because there was not a rule or statute saying so.  Yet, on the other hand, the Superior Court says the prior conviction is admissible although there is not a rule or statute that says so.  (In fact, generally, evidence of a prior conviction is usually only admissible if it is of the sort involving dishonesty. Pa.R.E. 609(a).)

This is why President Judge Bender filed a concurring opinion.  Personally, I tend to side more with Judge Bender’s analysis.  Crosley’s prior conviction should not have been admissible.  Judge Bender writes:

I also disagree with the Majority that [Crosley’s] testimony that he never carries a weapon permitted the Commonwealth to introduce the evidence of his prior conviction for aggravated assault, because [Crosley] allegedly committed that crime ‘while holding a sharp object.’  The general allegation that [Crosley] was holding an unidentified, ‘sharp object’ during his assault of the security guard does not demonstrate that he was carrying  a weapon prior to that incident.

Thus, I would hold that the trial court abused its discretion by admitting the evidence of [Crosley’s] prior conviction on the basis espoused by the Commonwealth and explicitly accepted by the court, and I would end my analysis of the admissibility of that evidence there.

From Judge Bender’s perspective, the evidence against Crosley was improperly admitted; however, as Judge Bender notes, it was “harmless” because the other properly admitted, uncontradicted evidence overwhelmingly demonstrated guilt.

On a personal note: It does not good for the Superior Court to make caselaw that it cannot bolster on the solid foundation of a rule or statute.  For that reason I would align with Judge Bender’s reasoning on the matter.  Reasoning as the majority does only causes confusion in the law.