*1 SPAETH, MONTEMURO, Before BECK JJ. PER CURIAM: criminal
Appellant attempted
bring private
complaints
former
against a
District
for refusal to
Attorney
prosecute
criminal
prior private
filed
others
complaints
against
by
appellant. The current District Attorney refused to prose-
cute,
appellant pursued
his right under Pa.R.Cr.P.
133(B) to submit the disapproved
to the
complaint
Court of
Pleas for
Common
review. The
Court
Pleas
Common
disapproved
complaints,
them
finding
without any legal
and the
prosecution,
complainant
basis
appealed.
Appellant has
previously litigated
be
question
In
Eisemann,
fore this court.
Commonwealth v.
276 Pa.Su
543,
We affirm the order of the lower court.
Argued June 5, 1982. Filed Feb. *2 Honesdale, appellant. for Bryan, N.
Robert Bresset, District Attorney, G. Assistant Hones- Stephen dale, Commonwealth, appellee. LIPEZ, PRICE, JJ.
Before WICKERSHAM LIPEZ, Judge: trial, of arson-endan-
In a defendant was convicted jury 3301(b)(1),risking catastrophe, gering property, Pa.C.S. § mischief, 18 3302(b), and criminal Pa.C.S. 18 Pa.C.S. § denied, 3304(a)(1). Post-verdict motions were filed and § In this from that judgment appeal sentence entered. sentence,1 trial, judgment we reverse and new grant agree because we with defendant’s contention that the court in concerning an arson admitting testimony below erred defendant committed in New in 1965 as substantive Jersey crimes in this trial.2 charged charges this trial arose out of a fire October A Honesdale, Pennsylvania. at the Petto Allen Inn in Morristown, depart- from Jersey police detective New that on December confess- ment testified 1978defendant this fire. The then setting attempted ed to the detective defendant’s to elicit from testimony for á fire he confessed arson conviction setting at the Hotel Revere in Morristown on May objection, the testi- Over defense court below admitted this mony. rules of this testimony type
The general
applicable
*3
our
by
Court:
Supreme
been stated
It
of
in this Commonwealth
principle
long standing
is
crime,
under
except
special
that evidence of a distinct
is
circumstances,
who
against
is inadmissible
a defendant
commission
tried for another crime because the
another, and
not
of the commission of
proof
one crime is
to
prejudice against
of such evidence is
create
effect
v.
in the
mind. Commonwealth
jury’s
Fortune,
367, 373,
783,
(1971) [sic];
Pa.
346
786
464
A.2d
334, 336
Wable,
80, 84,
v.
382 Pa.
114A.2d
Commonwealth
properly
judgment
appeal
of sen-
before us because
1.
While
entered,
judge
opinion
the trial
did not file an
in accord-
tence was
Pennsylvania
Appellate
1925(a).
Rule of
Procedure
There
ance with
however,
opinion,
remanding for an
since the trial
point
is no
appeal
judge
time
was heard. Cf.
the bench
had left
156,
1198,
161, n.2,
1195,
Cody,
Pa.Super.Ct.
Nigrelli
421 A.2d
281
v.
rearg.
(1980),
den’d.
n.2
disposition,
other
need not consider defendant’s
we
Because of our
(1)
his
should have been
new trial:
that
confession
for a
claims
coercion;
product
(2)
suppressed
that his confession
as a
suppressed because
of the “six-hour
been
of violation
should
278,
Davenport,
v.
370
301
471 Pa.
A.2d
rule”
Commonwealth
285,
Blady,
(1977).
v.
Commonwealth (1981). between the similarities argues
The Commonwealth fire and the 1978 fire the 1965 operandi.3 modus as to show a distinctive great were so frequent mention brief also makes 3. The Commonwealth’s exception, easily with the which is confused scheme” “common frequently using exception, litigants operandi” courts and “modus See, they e.g., phrase mean another. when one 372-75, Kjersgaard, Pa.Super.Ct. 419 A.2d 504-05 both, implicate (1980). factual situations do but the two Some quite easily exceptions distinct. The distinction can be illustrat- are case, example, could involve the common scheme This ed. exception *4 were that both hotels if there evidence were owned long-standing grudge against person, held a and that defendant here, however, any person. or is no such evidence other There that scheme, and therefore we shall not discuss of a common evidence text, exception despite to it in the in the the numerous references brief. Commonwealth’s below, prosecution mention point also made At one the court “identity” exception, has ob- but as McCormick so-called ordinarily identity proving of itself a served, is not need for “[A] follow, admission, usually as an evidence will but that the ticket of intermediate channel, here theories some one or more of the other (larger plan), (distinctive Probably de- the third the second listed. (motive) are to for this vice) most often resorted the sixth 86 formulated the Morris, supra, specifically v.
Commonwealth follows: such evidence4 as for admissibility requirements a distinctive explains, McCormick As Professor “crimes of where appears “modus operandi” and unusual to in method as identical nearly the accused so [are] He adds of the accused.” them as the handiwork earmark a further clarification: re- the mere is demanded then more much
Here [sic] as class, such of the same commission of crimes peated be used must or thefts. device burglaries repeated distinctive, a signature. as to be like unusual or so (2d 1972). at 449 Ed. Evidence, 190 McCormick § than the other must show more The Commonwealth one for which the are of the same class as the crimes Rather, there must be such tried. defendant of the crimes that in the details correlation high unlikely one makes it very committed the others. the defendant committed else but anyone Fortune, See, 176, at 720-21. Cf. Commonwealth Id., Pa. 425 A.2d 493 480, 1385, (1981). 427 1388 A.2d Rini, Pa.Super.Ct. similarities following relies on The Commonwealth (1) the 1965 and 1978 fires: the evidence started; (2) the fires were before angry defendant time it had at each hotel at the was a resident defendant floors, on fire; and had wooden hotels were old (3) both (4) defend- pile papers; were started in a the fires fire; (5) returning room after each after to his returned ant out of get others room, attempted help defendant to his fires, re-entered the hotel; after (6) both point- responds by Defendant initially leaving. hotel after 1972) p. (2d purpose.” on Evidence ed. § McCormick Woods, omitted). F.2d (footnote See also United States v. 1973). (4th Cir. trial, charges Although joinder the Court Morris involved admissibility prior applies standards adopted the same operandi” exception, Morris “modus so the under the acts criminal directly applicable that standard is here. formulation *5 dissimilarities,5 some ing out but even without considering these, we do not believe the Commonwealth’s six similarities are a sufficiently distinctive modus operandi to constitute defendant’s “signature.” Only the third even relates to the manner of commission of crime, a lighting pile of papers on a wooden floor is a hardly distinctive method of fire to an old setting building. fourth, fifth and sixth similarities are conduct the
defendant would be equally likely engage in, whether he had set the fires or not. The fact that the defendant was angry the time of both fires is at least of some to the help Commonwealth’s position, but in neither case was the de- fendant angry at or anyone anything connected with the hotel. Essentially, Commonwealth contends that defendant’s unique “signature” consists of a hotel resident, who is angry at something unrelated to the hotel at the time the hotel has an arson committed by very common means. This is not such a high correlation in details make it very unlikely that anyone other than the defendant could crime, committed the as required by Common- Morris, wealth v.
The connection between the fires is further weakened by the fact that took they place thirteen years apart two different states. course, Of we with the agree Common- wealth’s assertion that the length of time between incidents merely factor to be weighed in light circumstanc- es of each case. See Commonwealth Ulatoski, 472 Pa. 371 A.2d 191-92 (1977), den’d. The reh’g Common- copious cases, wealth’s brief discusses numerous in some of which the prosecution was permitted to show prior criminal occurring even more activity than thirteen before the years crime for which the defendant tried, was being but all these cases involved clearly distinguishable facts. (1) case, Dissimilarities on which defendant relies are: in one angry girl friend, other, at a angry while in the (2) general; matches, at the world one fire was started with by throwing cigarette; (3) closet, other one fire was set in a and the not; (4) lobby, other was one fire was in the first floor the other in basement; (5) case, pulled an alarm was in one but not the other. Patskin, 402, 413, 93 A.2d 372 Pa.
In *6 had beaten his evidence that the defendant (1953), motive and malice as evidence of admissible was wife was of murdering victim when he accused the same against exception later. The “modus years operandi” her seventeen Ulatoski, Commonwealth v. In not involved. Cf. was Woods, 1973), 134 (4th 484 F.2d Cir. United States the defend- that six infants under was admitted evidence twenty-four years as much as cyanosis died of care had ant’s she was murder with which cyanosis infant the before on grounded admissibility the court specifically but charged, In People of similar incidents involved. number great the Peete, (1946), the allowance of 306, 169 P.2d 28 Cal. murder to the defendant committed prove of a 1920 evidence murder, was based not similarities only stronger a 1944 case, the fires in but also on the have between we than in Peete had been in prison from defendant the fact murder until before the 1944 shortly after the 1920 shortly many not discuss the other cases cited We shall murder. involve much shorter time inter- Many Commonwealth. the Patskin, like vals, factually distinguishable, and all are Peete. Woods reversed, and a new trial ordered. of sentence
Judgment WICKERSHAM, J., dissenting opinion. files a WICKERSHAM, dissenting: Judge, I the lower court properly I because find that dissent at trial arson testimony admitted the in 1965 as substan- Jersey committed in New the defendant I agree in the instant case. charged of the crimes tive between the the similarities with the Commonwealth fire, fire and the Jersey 1965 New were so opinion, 672 of the majority on page delineated and for that operandi show distinctive modus as to great as evidence reason, fire was admissible the New the defendant. against morning case in the early in the instant occurred
The fire Honesdale, Motor Inn in 5, 1978 at Petto Allen of October Kinsman, Chief of trial, Robert W. At Pennsylvania. fire in ques- that the testified Fire Department, Honesdale in an en- newspapers of bundled in a pile originated tion N.T. at of the hotel. central stairwell area under the closed were old, steps N.T. at The hotel 11-13. Mr. Kinsman testified N.T. at 12. made of a wood frame. fire, he observed to control trying that while alone and that central stairway down the coming defendant he were given Mr. Kinsman that if told out of the hotel. N.T. mask, people help get he would heard one of that he later also testified 14. Mr. Kinsman his the hotel thanking residents of at 15. of the fire. N.T. morning on the assistance *7 the defendant’s that she was Delvina M. testified Smith 62-63, and that during N.T. at September, in girlfriend a drinking quite they spent together, time which in the last week of 64. testified that N.T. at She bit. her relations with September, she to break off attempted 5,1978, at morning the defendant and that on the October m., the tried unsuccessfully 1:30 a. approximately N.T. at 64-65. Ms. Smith was at by telephone. to reach her time, phone at but her son answered the home there. N.T. at informed the defendant that she was not picked up 64-65. Ms. further testified that she Smith talk- defendant, upset, receiver and heard who sounded call, to that after she left the ing phone her son and off the the defendant. N.T. hook avoid phone talking at 65. Johnson, investigator F. an arson and fire with
Charles Morristown Police in New inter- Department Jersey, 21, 1978, viewed the concerning defendant on December Honesdale, fire and he testified at trial as follows: What, Q if did the anything, Defendant say his involvement with the fire at the Petto’s Allen Inn [sic] 5, 1978? on October to me
A He admitted that he set the fire. he Q give you Did he lit any reason as to the fire? why He drinking. he had been was mad and sir, he Yes, A on a reach that he couldn’t at a young lady was mad phone. started? the fire how he say Did
Q that was paper into some Yes, sir, cigarette he threw a A main stairway under a stairwell a little closet Hotel. to the up going
N.T. at the New Johnson, had investigated who Police Officer pled had Blady Defendant to which in 1965 fire Jersey to the circumstances following testimony guilty, gave fire: Jersey the New in the State investigation an arson handle you Q [D]id that time? Yes, sir, I did. A was this?
Q Where Revere.
A Hotel located? is that Q Where Morristown, New Jersey. A it? building type Q What a hotel. A It is structure? type
Q What structure; it struc- type is wooden a wooden It is A ture, stories. three *8 the of age an indication of us give
Q you Can structure? at that old years over a hundred was building
A The time. have an that fire did you investigation the
Q During the Defendant? interview occasion sir, did. Yes, I A he set that fire? or not whether you admit
Q Did he a full confession. did. He me Yes, sir, gave he A it? tell where he set you he how and Q Did Yes, sir. A And, it what he started with?
Q stairwell Under the with and match. papers A he Q Did tell he set it? you why at Yes, mad the the way he was mad at way; A living had drinking. and he been he was the at the time that he Q living Where Defendant fire? set that hotel.
A At same hotel?
Q The Yes, sir.
A the fire did his reflect Q setting After what statement he did? on the first everybody up went woke A He down alarm, went floors and went pulled and second out in the rest getting in and tried to assist the firemen back of the building. out people 77-78, N.T. Common opinion (quoting stated its majority
As the 720, 715, A.2d Morris, 493 Pa. wealth v. operandi’ appears “a distinctive and ‘modus (1981)), unusual ‘crimes of the accused so identical where nearly [are] ac handiwork of the to earmark them as the method as ” more must show cused’ and that “[t]he class the one other crimes are of the same as than the At I con 671-672. tried.” fire and between the similarities clude nearly show crimes which are so fire two them as the handiwork in method as to earmark identical remaining I also find that the contentions defendant. sup his should have been namely confession appellant, violation product coercion and because of pressed 471 Pa. “six-hour rule” of Commonwealth v. Davenport, (1977), A.2d 301 are without merit. I would affirm of sentence. judgment