Friday, September 4, 2009
Extortion Is The Key: Superior Court Of Pennsylvania Decides That Extension of Credit By Extortionate Means Is A Crime Of Dishonesty Or False Statement
Federal Rule of Evidence 609(a)(1) allows for the impeachment of criminal defendants through evidence of their felony convictions, even convictions not involving crimes of dishonesty or false statement, if their probative value outweighs their prejudicial effect to the accused. Pennsylvania Rule of Evidence 609 is more restrictive. It only allows for the impeachment of witnesses through evidence of convictions for crimes involving dishonesty or false statement, making it similar to Federal Rule of Evidence 609(a)(2). Because of this fact, in its recent opinion in Commonwealth v. Cascardo, 2009 WL 2767327 (Pa.Super. 2009), the Superior Court of Pennsylvania had to determine whether the extension of credit by extortionate means is a crime involving dishonesty or false statement. And it answered that question in the affirmative.
In Cascardo, Vincent Andrew Cascardo was convicted of first-degree murder, criminal conspiracy to commit first-degree murder and other related offenses. After Cascardo testified in his own defense at trial, the court allowed the prosecution to impeach him through evidence of his prior convictions for collection of extensions of credit by extortionate means and tampering with a witness. On Cascardo's ensuing appeal, he claimed, inter alia, that these convictions were improperly admitted.
The Superior Court of Pennsylvania had an easier time with the witness tampering conviction, noting that "the offense, by definition, involves dishonesty directly affecting the administration of justice." It had a somewhat more difficult time with the conviction for extension of credit by extortionate means. The court first noted that theft by extortion is a crime involving dishonesty or false statement and noted that Cascrado did not dispute this point. Cascardo contended, however, that the extension of credit by extortionate means was not a crime of dishonesty or false statement because "there is no element of dishonesty or theft."
The court, however, was able to turn this argument aside, noting that the key element making both theft by extortion and extension of credit by extortionate means crimes of dishonesty or false statement was the extortionate means, i.e., "any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person."
The court also noted that this latter conviction was more than ten years old, meaning that, under Pennsylvania Rule of Evidence 609(b), it only could have been admissible if its probative value substantially outweighed its prejudicial effect. Finding that Cascardo's conviction was highly prejudicial on his credibility as a witness, the court found that this balancing test had been satisfied and thus affirmed Cascardo's convictions.