*1 Pennsylvania, Appellee, COMMONWEALTH of (three cases). BORSCHELL, Appellant Michael Supreme Pennsylvania. Court
Argued Jan. 1974. July 7,
Decided 1975. *2 Gay, Philadelphia, appellant. for
Andrew G. Sprague, Atty., Arlen 1st Dist. Richard Specter, A. Atty., Richman, Atty., Asst. Dist. David Asst. Dist. Chief, Philadelphia, Appeals Div., Leadbetter, Bonnie Pa., appellee. for EAGEN, O’iBRlEN, [POMEROY, ROBERTS,
Before MANDERINO, NIX and JJ.
OPINION EAGEN, Justice. m.,
On a. October at 9:00 approximately men entered the of Dr. residence and, holding family Frank Washick while gunpoint, proceeded looking ransack *3 jewelry. pursu- coins and The entrance was conducted pre-conceived plan by ant to a appellant, devised the Mi- Borschell, chael supplied addition, who had, white getaway Buick automobile for use as the vehicle. Borschell, himself, present was not at the resi- thereafter, police responding dence. Soon officers, two telephone to a call from at Washick, Mrs. arrived the crime upon Immediately entering scene. the Washick residence police officers, Lackman, one the William fatally shot and one of intruders. wounded the subsequently police custody Borschell was taken into and charged murder, aggravated robbery. with burglary and jury trial,
After a Borschell of all the was convicted charges. Post trial motions a sentence denied and imprisonment of life imposed on the conviction degree. murder in the first Prison of ten to sentences twenty years imposed aggra- the burglary on and convictions; vated concurrently these sentences to run imprisonment with the consecutively life sentence and each appeal An judgment other. from the of sentence imposed on the murder conviction this was filed Appeals burglary Court. from aggravated and rob- bery Superior and convictions were filed Court lat- appeals er certified for here. The were consolidated ar- gument disposition. sufficiency question
Borschell does jury’s does, the evidence to verdict.1 sustain He however, permitting contend trial court erred testify, three Commonwealth defense witnesses to over objection, partici allegedly about pated disagree. in Borschell.2 We general
As a
is inad
rule evidence of one crime
against
missible
another
being
a defendant
tried
crime because the fact
offense
commission of one
proof
is not
of the commission of another.
See
Groce,
wealth
2.
took the stand in his own defense and on
participation
prior
cross-examination admitted his
in these
bur-
glaries. He now contends
was a
of
of
it
violation
March
Act
20,
§
§
permit
P.L.
19 P.S.
him to
cross-ex-
concerning
prior
However,
burglaries.
amined
objec-
these
no
as
interposed
cross-examination,
tion
to this
is fore-
Borschell
raising
appeal.
closed from
this issue on
See
Commonwealth
Glenn,
Clair,
Herein the of these burglaries. commonality of the witnesses established the September between late record demonstrates took and mid-October series entry place involved the Each area. private valuables, primarily of a home and the theft of jewelry. importantly, coins and More each was master and, instance, minded a white 1965 Borschell each supplied Borschell, Buick automobile as served served, getaway Moreover, vehicle. Russell William disposing gathered as bounty the “fence” in burglary. very each These characteristics marked burglary indicating larger part it was but a operation. may circumstances, scheme these Under permitting not be said trial court erred the testi relating mony crimes. Cf.
Smith, Wable, supra.
wealth v.
Judgments affirmed. concurring
ROBERTS, J., opinion. filed a NIX, J., concurs the result.
MANDERINO, J., dissenting opinion. filed a JONES, J., participate. C. did not
ROBERTS, (concurring). Justice “ ‘ my view, may In of other offenses violence “[e] any purpose if than to received relevant for other show disposition part propensity mere of on the defendant ’ ” Brown, to commit the crime.” Commonwealth v. (concurring (1975) opin 578, 594, 342 A.2d quoting Boykin, ion), (concurring opinion (1972) of Rob J., joined appellant erts, of J.). The evidence Jones, C. participation Bo rschell’s other private permissible purposes. homes relevant appellant’s The heart of the Commonwealth’s evidence complicity robbery consisted the testi mony reciting persons of three statements made to them by appellant indicating he that had “master-minded” likely question, Washick crime. An occur to obvious to weight jury to affect their evaluation witnesses, why appellant testimony of the three incriminating to innocent ac would admissions make quaintances. question This was answered when wit permitted testify they in fact nesses appellant’s acquaintances confederates innocent but prior burglaries. Explaining why how and wit surely they learned of what testified about is nesses showing appellant’s purpose relevant distinct from bur glarious disposition. prej
Furthermore,
persuaded
I am not
that the risk
outweighed
probative
ex
udice to
value of
plaining
why
jury
acquired
the witnesses
how
supra
Brown,
their information.
See Commonwealth
Terry,
(concurring
compare
opinion);
603;
(1975)
(dissenting
Accordingly, in the I concur result.
MANDERINO, (dissenting). Justice prosecution general The law is that as rule the clear prior cannot evidence of criminal conduct introduce prove which the the is not on in order accused trial charge being Groce, Commonwealth tried. v. Allen,
203 (1973); A.2d v. Pa. 917 Commonwealth 448 292 441 (1972); A.2d v. Commonwealth excep (1971). limited Certain recognized. tions Com to this rule have been Wable, monwealth v. Strantz, 195 A. Chalfa, A. 564 majority opinion design may states that common burglaries prosecu- in by found the the testified surrounding
tion’s witnesses because the circumstances burglaries those very “were in in so close nature and time exception,” as to within the and above [them] by appellant. because each was “masterminded” This argument has no merit this case. prosecution
The three witnesses for the did not indi- anything unique prop- cate that there was kind erty sought any to be there obtained. Nor evidence operandi alleged that burglaries modus of the other unique burglary robbery or identical home, Washick fact, In to each other. these witnesses testified that were * jury, perpetrat- “Members of fact has that defendant burglaries, did, ed many howsoever there are does he not follow Therefore, that you burglary. therefore he committed this will not consider man burglary that this has this committed because burglaries.” he committed other “picked just the homes were planned, but even burgla- prior of these testified that some Another out.” during night done while others were ries were done at bur- daylight that on hours. Another testified houses, into the glaries appellant went it was the who and some which some of were which Jersey. also testified This witness were New planned appellant while some of the Moreover, none planned “Bill.” others were robbery involved men involved although burglaries, any the other home partici- they prosecution testified that for the witnesses burglaries, none pated in other with the robbery of participated in the of these three witnesses *7 home. only established testimony of the witnesses The in other home involved majority’s inter was used. his rental car which exception rule emasculates pretation of this prior criminal evidence of prohibiting introduction of supra. pre “The conduct. See con prior criminal effect of such evidence [of sumed jurors believe predispose the minds is to duct] strip effectually him of guilty, and thus the accused v. presumption innocence.” (1973). Evi A.2d Groce, 452 Pa. with “should be received prior criminal conduct dence of Chalfa, 313 Pa. caution.” the utmost permit error to (1933). It was 169 A. testify appellant’s al prosecution about witnesses to cannot leged prior error criminal conduct. Such . Harkins, 459 Pa. v. harmless Commonwealth Allen, (1974), A.2d 156 Chapman California, 386 U.S. (1972), 18, 17 705, 87 L.Ed.2d S.Ct. 824 a new be reversed and
Judgment sentence should granted. trial