Court Allows Impeachment By Prior Criminal Conviction

In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. March 17, 2022 Nealon, J.), Judge Terrence R.Nealon of the Lackawanna County Court of Common Pleas addressed a pre-trial Motion In Limine seeking to preclude evidence or testimony regarding a witness’ prior arrest, guilty plea, and incarceration.

According to the Opinion, the subject witness was a friend of the Plaintiff and was anticipated as a fact witness at trial. That witness pled guilty in 2018 to stalking.

The Plaintiffs filed a Motion In Limine seeking to preclude the impeachment information on this witness for the Plaintiff by asserting that Pa. R.E. 609(a) permits a witness’ credibility to be attacked with evidence that the witness has been convicted of a crime only if the crime involves “dishonesty or false statement.” The Plaintiff asserted that the witness pled guilty to stalking, which did not constitute a crimen falsi crime.

In response, the defense asserted that the federal stalking statute does encompass allegations of dishonesty. The defense also asserted that the criminal acts that the Defendant pled guilty to also, in fact, involved elements of dishonesty.

Judge Terrence R. Nealon
Lackawanna County

After his review of the applicable law as applied to the facts before the court, Judge Nealon ruled that, while the witness’s cyber stalking offense was not inherently a crimen falsi since neither dishonesty nor a false statement was an essential in stated element of that crime, the court noted that, based upon the “underlying facts” that supported the witness’ conviction under the federal statute involved dishonesty and falsehoods committed by the witness to during the course of his crime.

The court therefore ruled that, since the witness utilized dishonesty and false statements in committing his cyber stalking crime, the underlying facts sustaining his conviction supported the classification of the offense as a crimen falsi offense for purposes of the admissibility of this information to impeach the witness at trial pursuant to Pa. R.E. 609(a).

As such, the Plaintiffs’ Motion In Limine was denied by the court.

Anyone wishing to review a copy of this decision may click this LINK.

Impeachment Of Witness At Trial Not Permitted On Collateral Issues

In a recent detailed Order issued in the case of Detrick v. Burrus, No. 2011 CV 1333 (C.P. Lacka. Co.  Feb. 23, 2015 Nealon, J.), Judge Terrence R. Nealon addressed a Motion in Limine filed by the Plaintiff in an automobile accident suit seeking to preclude evidence of a post-accident drug screen ordered by the Plaintiff’s treating doctor that contained a positive result for marijuana use.

According to the Court Order, following the subject motor vehicle accident, the Plaintiff began to treat with a medical provider who ordered a urine drug screen of the Plaintiff prior to considering the possibility of prescribing additional medications for the Plaintiff.   That test came back as positive, in part, for marijuana in the Plaintiff’s system.   

Citing Pa. R.E. 401 and 403, pertaining to relevancy, the Plaintiff contended that any evidence of the drug test was inadmissible because it was irrelevant and unduly prejudicial.  

The Defendant countered with the argument that, since the medical records confirmed that Plaintiff had denied the use of marijuana during her initial visit with the medical provider, and since the Plaintiff had also denied at her deposition under oath that she ever smoked marijuana, evidence of the Plaintiff’s positive drug screen was admissible to impeach the Plaintiff’s credibility and show the jury that she was a liar, even when under oath.  

The defense also had evidence in the Plaintiff’s family doctor’s records confirming that the Plaintiff had otherwise admitted to that other doctor that she had indeed used marijuana in the past, contrary to her denials noted above.  

The Defendant further asserted that the evidence of the urine drug screen tests ordered by the Plaintiff’s post-accident doctor was separately relevant under Pa. R.E. 401 as such evidence made the existence of the fact that the Plaintiff’s own post-accident treating provider had serious questions and concerns as to the Plaintiff’s medication use more probable than such a conclusion would be without this evidence.  

Moreover, with respect to the claims by the Plaintiff that the reference to the positive urine tests for marijuana at trial would be unduly prejudicial, the defense argued in its Brief that any negative connotations pertaining to marijuana use that were prevalent back during the Cheech and Chong years were long gone and that there was a liberalization of the public opinion in this regard.  

The defense also pointed out that there were currently 23 states in the nation that have since legalized medicinal marijuana and even noted that the new Governor of Pennsylvania was considering the possibility of legalizing medicinal marijuana in Pennsylvania.   As such, it was asserted that the admission of this evidence would not be unduly prejudicial as alleged by the Plaintiff.  

In his Opinion, Judge Nealon noted that questions concerned the admissibility of evidence lie within with sound discretion of the trial court and would not be disturbed on appeal absent a clear abuse of that discretion.   Judge Nealon also cited the law that held that evidence to impeach the credibility of a witness is admissible so long as it is relevant to that purpose and not otherwise barred.  

In granting the Plaintiff’s Motion In Limine to preclude this evidence, the court relied upon the law that a witness may not be impeached or contradicted on a “collateral” matter. 

In so ruling, Judge Nealon noted that the Pennsylvania appellate courts have repeatedly held that “no witness can be contradicted on everything he testifies to in order to ‘test his credibility.’  The pivotal issues in a trial cannot be ‘sidetracked’ for the determination of whether or not a witness lied in making a statement about something that has no relationship to the case on trial.”  See Op. at 2 [citations omitted].   The court otherwise noted that it is a well-settled principle of Pennsylvania law that the [t]he purpose of trial is not to determine the ratings of witnesses for general veracity.”   See Op. at p. 2.  Judge Nealon also cited to a criminal court case holding that “[g]eneral questioning concerning the use of drugs does not bear on the witnesses’ ‘character for truth.’”   See Op. at p. 2-3.  

After reviewing this law, the court found that the Defendant had not identified an independent basis to introducing evidence of the Plaintiff’s apparent use of marijuana more than eleven (11) months after the subject car accident.   Judge Nealon ruled that absent proof that the Plaintiff’s marijuana use was admissible on grounds independent of the proposed impeachment, such evidence was inadmissible.  

The court went to find that, even if such evidence was somehow relevant, this evidence was inadmissible under Pa. R.E. 403 since its probative value was outweighed by the danger of unfair prejudice.   The court found that evidence of the Plaintiff’s marijuana use or positive drug screen could arguably divert the jury’s focus from its job of deciding the disputed issues of damages, or could otherwise result in the production of a damages award set upon an improper basis.  

As such, the court granted the Plaintiff’s Motion In Limine to preclude any evidence of or reference to Plaintiff’s positive pre-screen urine drug test.  

It is noted that this case proceeded to trial and the Plaintiff’s case went up in smoke in the form of the entry of a defense verdict by the jury on the limited tort question.   No appeal was filed.  

Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.