COMMONWEALTH of Pennsylvania, Appellant, v. Roy PATTERSON.
Superior Court of Pennsylvania.
March 31, 1977
372 A.2d 7
Submitted Feb. 23, 1976.
This suggested procedure would be necessary only if the lower court is unable to have the notes of testimony transcribed. Accordingly, I would remand for completion of the record by addition of the notes, with the alternative that if that were not possible, the suggested procedure should be followed.
HOFFMAN and PRICE, JJ., join in this opinion.
Donald C. Marino, Philadelphia, for appellee.
VAN der VOORT, Judge:
On February 7, 1974, at approximately 2:30 A.M., a young lady, the prosecutrix in the case before us, left her apartment on South 47th Street in Philadelphia and walked to a store located at the corner of 49th Street and Chester Avenue. On the way back to her apartment, the prosecutrix was accosted by a man with an ice pick, taken into a garage in a nearby alleyway, and there raped and robbed. Two weeks later, the prosecutrix was at a police station when she spotted appellee Roy Patterson talking to a police officer. The prosecutrix immediately identified appellee as the man who had raped her. Appellee was charged with robbery, assault, and rape, was tried by a judge and jury, and on March 12, 1975 was found guilty as charged. Post-trial motions were filed and the lower court after hearing argument granted appellee‘s motion for a new trial. The case is before us on the Commonwealth‘s appeal from the Order of July 10, 1975 granting a new trial. The sole issue before us is whether the lower court abused its discretion in finding that testimony of a witness that she had been raped by appellee on February 12, 1974 (five days after the prosecutrix in the case before us had been raped) had improperly been admitted into evidence.
It is clear that, except under certain circumstances, in Pennsylvania evidence which discloses the commission of another crime cannot be introduced against a defendant who is being tried for a separate and distinct crime. Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). The reason for this, of course, is that a person must not be found guilty of one crime merely because he is known to have committed other crimes. Evidence of other crimes is admissible, however, when it tends to prove: (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme, plan, or design, or (5) the identity of the person who
Reversed and remanded for consideration of appellee‘s remaining post trial motions.
HOFFMAN, J., files a dissenting opinion, in which JACOBS and SPAETH, JJ., join.
HOFFMAN, Judge (dissenting):
I dissent because I believe that the lower court did not abuse its discretion in granting a new trial.
The Commonwealth, over strenuous objection, also presented the testimony of another rape victim. The trial court characterized this witness as “a plain, distraught middle-aged woman.” She testified that appellee accosted her at 2:30 a. m., on February 12, 1974, as she attempted to enter her apartment building at 4701 Chester Avenue in Philadelphia. Her attacker, a black male, wearing sunglasses, pulled a gun from his pocket, pressed it against her chest, and took her to his apartment where he raped her.
On March 12, 1975, the jury found appellee guilty of all the offenses charged. On July 10, 1975, the lower court granted appellee a new trial because it believed that the testimony of the second rape victim had been improperly admitted and was unduly prejudicial. The Commonwealth appealed that ruling.
In Commonwealth v. Bradley, 243 Pa.Super. 208, 212, 364 A.2d 944, 945 (Filed 9/27/76), our Court recently reiterated the rule against introduction of evidence of other crimes allegedly perpetrated by a defendant: “One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant. Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). See also Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955); See, generally, McCormick on Evidence, § 190 at 447-454 (Cleary Ed. 1972). However, “sometimes there exist . . . ‘special circumstances’ which operate as exceptions to the general rule, and bring the case within the equally well-established principle that evidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or establish the identity of the person charged with the commission of the crime on trial,—in other words where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.” Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783, 786 (1875); Commonwealth
In Commonwealth v. Fortune, supra, a jury convicted the defendant of robbery and murder. The Commonwealth presented a witness who testified that he and the defendant had participated in six other robberies within a one block radius during a time period extending from one month before the occurrence of the robbery for which defendant was tried until one month after the date of the crime charged. The Supreme Court held that evidence of these other robberies should not have been admitted because there was not the necessary logical connection between the crime charged and the other crimes to which the witness adverted. In particular, the Court noted that the victim of the crime charged was older and bigger than the “little boys” who were the victims of the other robberies and that different weapons were employed in the crimes that defendant allegedly committed. Furthermore, the times and dates of the other crimes did not appear on the record. “Finally, there was nothing distinctive in these crimes which would separate them from other street crimes and lock them together into a chain.” Commonwealth v. Fortune, supra, 464 Pa. at
I believe that Commonwealth v. Fortune, supra, is persuasive support for the lower court‘s determination that the evidence of the second rape should not have been admitted to show appellee‘s identity as the man who raped the prosecutrix on February 7, 1974. As in Commonwealth v. Fortune, there was not the necessary connection between the crime charged, the February 7 rape, and the second February 12 rape. In both cases, a black man wearing sunglasses raped a woman in the same neighborhood at the same time of night. However, according to the lower court, “the victims were of totally different ages and sexual attractiveness, one was raped in a garage, one in a room, one was robbed, one was not, one assailant menaced the victim with an ice pick and one with a gun.” In short, the rapes were not committed under circumstances sufficiently similar to constitute a common scheme or modus operandi identifying appellee as the February 7th rapist.5 As in Commonwealth v. Fortune, there was nothing distinctive in these crimes to separate them from other street crimes and to link them together in a chain.
Even assuming arguendo that evidence of the second rape could be admitted to show appellee‘s identity, the lower court still acted properly in granting a new trial. In McCormick on Evidence, supra, at 453, the commentator criticizes trial and appellate judges who proceed on the assumption that the admission of evidence of “other crimes” turns solely upon the ascertainment and application of a mechanical rule. “If the situation fits one of the classes wherein the evidence has been recognized as having independent relevancy, then the evidence is received, otherwise not.” By narrowly focusing on the application of a mechanical rule, judges may “lose sight of the underlying policy of protecting the accused
I realize that Pennsylvania case law has firmly entrenched the traditional “other-crimes” rule and exceptions. See Commonwealth v. Terry, 462 Pa. 595, 342 A.2d 92 (1975); Commonwealth v. Fortune, supra. However, I believe that a trial court should apply the traditional test as a first level of inquiry. Even if one of the traditional exceptions is applicable, the trial court should still exclude the evidence of other offenses if its probative value is outweighed by the danger that the evidence adduced may unduly arouse the jury‘s emotions of prejudice, hostility, and sympathy. This second level of inquiry is necessary to insure that the accused is not convicted because he is a bad person who committed a different crime than the one charged.
In the instant case, the lower court in its opinion stated that the testimony of the second victim carried far more persuasive weight than the testimony of the first witness; in effect, the case “degenerated” into a consideration of appellee‘s participation in the second rape. The trial court considered the probative value of the proffered “other-crimes” evidence and observed its inflammatory impact upon the jury; we should not upset its carefully balanced conclusion that the evidence of the second rape was unduly prejudicial. Commonwealth v. Bradley, supra.6
Finally, I do not believe that the lower court abused its discretion in granting a new trial. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Mielcuszny v. Rosol, 317 Pa. 91, 93-94, 176 A. 236, 237 (1934). In the case at bar, the lower court did not misapply the law or exercise its judgment in a manifestly unreasonable or biased manner. Accordingly, I would affirm the order of the lower court granting a new trial.
JACOBS and SPAETH, JJ., join in this dissenting opinion.