*1
Submitted Oct. 1980. Decided Jan. *2 Banks, Kenneth A. F. First Asst. Dist. Atty.,
Robert Osokow, appellant. Asst. Dist. for Atty., Defender, Lycoming, H. Asst. Public Way,
Kevin appellee. ROBERTS, NIX, O’BRIEN, J., LARSEN, and
Before C. KAUFFMAN, JJ. and FLAHERTY THE OPINION OF COURT O’BRIEN, Justice. Chief herein, C.
Larry Shively, аppellee was convicted a by jury intercourse, deviate rape, involuntary of aggravated assault felonious restraint. Post-verdict motions were was sentenced to prison denied a term An years. appeal three-to-ten taken the Superior Court, which a new granted appellee trial. 173, 385 Shively, Pa.Super. (1978). A.2d We
granted petition the Commonwealth’s for allоwance ap- and this followed. peal appeal facts, victim, to the according testimony female, twenty old are as follows. year April On driving the victim was home 11:00 in a portion P.M. rural a car Lycoming County. traveling victim observed *3 opposite begin the direction make a U-turn and following her, intermittently the blinking bright lights. Because and because the blinking lights thought the victim she had other cаr’s driver recognized they passed, the when she off pulled stopped. the side road and Appellee approached the victim’s car and asked if she knew where replied sоmeone lived. When she help, that she couldn’t hand, into the car and appellee reached with a knife in the victim’s wrist. grabbed Appellee then ordered the vic- turn get tim to off the motor and out of the car. Without from releasing grasp, picked the victim his the appellee up keys car the victim toward rear of her car. pulled the trunk, When he was to open unable victim’s he pulled car, his the victim toward which he shut then Appellee off. into her car. forced victim own He drove a few miles car, before a dirt turning stopping on road. After appеllee the victim to undress. He then ordered the ordered to get victim out of the car and to down on the lay grass. cold, it protested When victim was too appellee agreed that in the back then get Appellee should seat. they removed the victim’s underwear and ordered her lean inserted, over back of the front seat. then Appellee first, his tongue and later his into victim’s finger vagina. ordered the victim to turn around
Subsequently, appellee her appellee on After lap. penetrating vagina, and sit his in intercourse a few minutes engage forced the victim her off him. While the victim get until he ordered seat, in the seat and appellee got remained in the back front his parked. Appellee the location where car was drove to the victim to down in the back seat and to lay then told his got there he car and drove off. remain until trial, defense, an alibi presented alleging At appellee home, Milton, hе had been Union the entire County, his Appellee’s of the crime. mother corroborated testi- day mony. rebuttal, Commonwealth, on was allowed to introduce from Montour copy County еvidence a a court record
into pled sodomy. had The Common- appellee guilty where of a state who proffered trooper wealth also the testimony investigated сriminal conduct. According had had, trooper’s testimony, September on appellee lady hospital old in a lot as twenty year parking accosted she her car. forced the woman into entering Appellee was his her to an isolated area of County. car and drove Montour forced the victim to kneel on all fours when he Appellee At appellee was menstruating. gunpoint, noticed she perform Following sodomy. comple- forced woman act, drove the woman away, leaving tion of this behind. for this incident on February was arrеsted
Appellee guilty He incarcerated on subsequently pled *4 28, episode The occurred six April instant prison. was released from after days trial, that the evidence argued At the Commonwealth of. criminal conduct was admissible establish apрellee’s prior by showing the between the appellee’s identity similarity Fortune, v. 464 Pa. 346 two incidents. Commonwealth hand, (1975). argued on the other that Appellee, A.2d 783 three-and-one-half-year gap between the two incidents the too to be of use to the original any made the incident remote prosecutor arguing The countered by Commonwealth.
415 no appellant had сommit similar crimes be- opportunity imprisoned cause he been for three years. had trial court allowed admission of the The Superior evidence. trial, and granted appellee Court reversed a new holding that the evidence too remote and thus was inadmissible. v. supra. Shively, Commonwealth, argues this appeal, incarceration, appellee’s beсause of the of time in period which he had commit these criminal acts opportunity months; of a nature was seven only period, as the Commonwealth is not so remote to render аrgues, as view, In our evidence inadmissible. need address the issue of appellee’s period whether incarceration should be answering question, excluded in remoteness even the period of seven months renders the evidence instant too its remote to allow admission.
It is well settled that: “.. . of other crimes is Evidence admissible when it scheme, tends common prove plаn design or embrac- or more ing the commission two crimes so related to that proof each of one tends to prove other others or identity person charged establish with the triаl, commission of the crime on other words where —in a logical there is such connection between the crimes that proof of will tend to show one that the accused naturally is the who person committed other.” Commonwealth Wable, 80, 82, (1955) Pa. A.2d 336-37 added.) (Emphasis stated,
As has evidence of is McCormick crimes admis- sible:
“.. . crimes so prove by nearly other like accused method identical in as to earmark them as the handiwork Here, of the accused. much more is than demanded class, mere of crimes repeated commission of the same such as or thefts. The device repeated burglaries used must be so unusual and distinctive as to be like a signa- McCormick, Evidence, ed.) ture.” (1972 (Empha- 2d added) omitted). sis (Footnotes *5 416 case, are to simply enough the instant unable find
In to the two criminal brand the eрisodes between similarities and distinctive to be a signa- as “so unusual as like device ture.” brief, out in points
As Commonwealth its the evidence and the facts plea said appellee’s guilty plea surrounding were used for one i.e. establish of the purpose, identity theorized, Wigmore As has use perpetrator. prior crimi- requires significant nal conduct to establish similari- identity to show that it is more likely ties between the two acts than same individual committed both acts. Wig- more, Evidence, ed.) if the (1940 period 304 3d Even time two crimes at issue seven instantly only between the months, similarity we cаnnot find sufficient to allow admis- concerning appellee’s guilty plea sion of evidence We held that even if evidence of prior have Fortune, is under Commonwealth v. su activity admissiblе said will be rendered inadmissible if it is pra, evidence too Brown, 130, 482 Pa. A.2d 414 remote. Commonwealth 393 view, our is but (1978). Remoteness, in another factor be if determining prior considered in crime tends to show committed both crimes. person degree same the two incidents similarity necessary prove between is thus identity perpetrator inversely propor common if span time between thе two crimes. Even tional months, we fail span instantly only perceive time is seven two enough similarity episodes between the allow admis activity. sion of the prior Commonwealth v. argues
Kline,
(1949)
A.2d 348
thе instant
361 Pa.
controls
issue,
There,
sex crimes are
case.
we held that where
crimes
allowing
law is more liberal
admission
non-sex
are involved.
In Common
than where
offenses
Boulden,
(1955),
wealth v.
ROBERTS, concurs result. NIX, J., result, believing cоncurs that circumstances the two incidents are surrounding sufficiently similar to permit admission crime. J.,
LARSEN, files dissenting opinion which KAUFF- MAN, J., joins.
LARSEN, Justice, dissenting.
I dissent. after day appellee’s Six release from prison where hе serving a three term for year forcible sodomy, he is again accused of and forcibly raping sodomizing anoth- er Both victims young girl. were approximately years of both victims were in or аge; entering their automobiles at the time were they approached by perpetrator; both victims were forced with weapons deadly accompany area; assаilant to a secluded country both victims were ordered to crouching (one assume positions on kneeling all fours and leaning one over the seat automobile) front of an expоsed genetalia which their from rear for the assail- ant. In my opinion, the circumstances surrounding these similar, crimes are sufficiently frame, and the time con- incarceration, sidered in light small, аppellee’s sufficiently appellee’s conviction offense first was admissible at his trial second. I would reverse order
Consequently, of the Superior Court affirm the judgments sentence.
KAUFFMAN, J., joins this dissenting opinion.