Com. v. Strouth, K.

J-S38011-20 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH ALLEN STROUTH : : Appellant : No. 488 MDA 2020 Appeal from the Judgment of Sentence Entered December 9, 2019, in the Court of Common Pleas of Adams County, Criminal Division at No(s): CP-01-CR-0000094-2019. BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.* MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 30, 2020 Kenneth Allen Strouth appeals from the judgment of sentence imposed following his convictions for burglary, theft by unlawful taking, and receiving stolen property.1 We affirm. In 2019, Strouth was brought to trial on two counts each of burglary, theft by unlawful taking, and receiving stolen property arising from incidents that took place at two separate residences, one on November 8, 2018, and the other on January 7, 2019. During his opening statement, defense counsel indicated that Strouth intended to testify on his own behalf. Some time later, outside the presence of the jury, the trial court conducted a colloquy on the ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 See 18 Pa.C.S.A. §§ 3502(a)(3), 3921(a), 3925(a). J-S38011-20 record to inform Strouth of his constitutional right to remain silent or, in the alternative, to testify. During the colloquy, the trial court learned that Strouth had a prior crimen falsi conviction for conspiracy to possess a stolen firearm in 2009. The trial court incorrectly advised Strouth about the manner in which this information could be presented to the jury. The court initially stated: “if you were to testify, the Commonwealth would be entitled to cross-examine you and ask you about that conviction as it’s one of theft related or crimen falsi type of a matter.” N.T. Trial, 10/8/19, at 71. The court then advised Strouth: “If it’s within statutory parameters, they might be able to ask you about it. So that’s something you should discuss with your attorney as to whether or not that conviction would be made known to the jury. . . . It’s you and your attorney that need to make that decision.” Id. The Commonwealth then advised the trial court that, in 2001, Strouth also pleaded guilty to multiple breaking and entering and grand larceny charges which would have resulted in his incarceration within ten years. Id. at 72. There was a discussion on the record between the court and the Commonwealth which indicated some uncertainty as to whether the ten-year period extended from the date of the offense or the date of the conviction. Ultimately, as the uncertainty had not been resolved, the trial court cautioned Strouth “do you understand that you and your attorney will need to discuss whether or not you wish to testify knowing that it’s possible that the jury would be made aware of these other prior convictions; do you understand -2- J-S38011-20 that?” Id. at 72. The trial court then took a recess to permit Strouth to consult with defense counsel. After the …

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