Commonwealth v. Claypool

495 A.2d 176, 508 Pa. 198, 1985 Pa. LEXIS 328

• Court: Supreme Court of Pennsylvania
• Decided: June 26, 1985
• Docket: 12 W.D. Appeal Docket 1984
• Status: Published

Opinions

OPINION OF THE COURT

LARSEN, Justice.

This appeal concerns the admissibility of a statement made by appellee (the defendant) to his victim, during the commission of a sexual assault, to the effect that he had a prior criminal conviction for rape. For the reasons which follow, we conclude that the Superior Court erred in holding that this evidence should have been excluded, and we, therefore, reverse.

In this case, appellee was convicted of rape, involuntary deviate sexual relations and simple assault, all arising from the sexual assault of his wife’s sister in 1979. According to the victim, during the rape episode appellee placed her in fear and intimidated her by telling her that he had previously served time in jail for rape, by threatening her with a gun, and by grabbing her and throwing her onto a bed prior to engaging in various sexual acts with her. Prior to trial, appellee filed a motion seeking to bar 1) the introduction at trial of his prior criminal record and 2) the introduction of testimony containing references to the statement he made to the victim during the commission of this crime, to the effect that he had a prior conviction for rape. After an extensive hearing on the motion, the court held that the Commonwealth could not introduce appellee’s criminal record during its case in chief or during cross-examination of appellee, but that the victim would be permitted to testify with reference to the statement appellee made to her about his prior conviction.

At trial, appellee admitted that during this episode he engaged in various sexual acts with the victim, but claimed that all of those acts were with the victim’s consent. During the trial, no reference was ever made to appellee’s criminal record in general. However, the Commonwealth, over appellee’s objection, did introduce the victim’s testimony concerning appellee’s statement to her about his prior conviction for rape to prove that the sexual acts which occurred during the rape episode were the result of force and threats on the part of appellee and not consent on the part of the victim. The victim testified as follows:

BY MR. MOORE [for the Commonwealth]:

Q. And what, if anything, further did he say to you?

A. He said that I had — he said that I better not try to get away or to scream or holler because if I did he would shoot me and anybody else who got in his way and hopefully that if the police came that he would get killed too because he would never go back to jail again. * * * * # *

Q. Now you said something about his saying that he had been in jail. Is that right?

A. He told me that he was, yes.

Q. Did you know yourself prior to that that he was in jail?

A. Yes, sir.

Q. Did you know why he had been in jail?

A. No, sir.

Q. Did he tell you why he had been in jail?

A. Yes, he did.

Q. What did he tell you about being in jail?

A. He told me he was in jail before for rape.

Q. And did he say anything more about rape?

A. He told me the incident that happened and why he went to jail.

Q. And what did he tell you about?

A. He told me that him and another fellow were at his cousin’s house and they had been drinking and they tied up his cousin and then they took the cousin’s wife upstairs and that he was in jail for that.

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Q. And what affect [sic] did this talk have upon you? A. I was scared to death because then I knew that that’s what he was going to do to me.

Q. All right, and then after his conversation about being in jail and telling you about rape, what then occurred?

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A. Well he told me that I better do it and he said I better not scream and holler because ever since he’s been in jail any loud noises like that, if I screamed it would make him go crazy.

On the commencement of the second day of trial, the court cautioned the jury at length concerning the limited purpose for which the victim had been permitted to testify about appellee’s statement concerning his prior imprisonment for rape.¹

The jury found appellee guilty of the aforementioned crimes, post-verdict motions were denied, and appellee was sentenced to three and one-half to seven years imprisonment.

On appeal, the Superior Court held that “the evidence introduced by the Commonwealth was clearly relevant on the question of the lack of consent of the victim____ However, the prejudice engendered by it exceeds its probative value and therefore the trial court abused its discretion in admitting the evidence.” Commonwealth v. Claypool, 317 Pa.Super. 320, 464 A.2d 341, 344 (1983). The Superior Court vacated appellee’s judgment of sentence and remanded for a new trial. We granted the Commonwealth’s petition for allowance of appeal.

In reviewing the decision of the Superior Court, we are guided by the rule of law that the admissibility of evidence is a matter addressed to the sound discretion of the trial court, and that an appellate court may reverse only upon a showing that the trial court abused its discretion. Commonwealth v. Bartlett, 446 Pa. 392, 400, 288 A.2d 796, 799-800 (1972).

It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind.

Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981).

Evidence of prior crimes may be admissible, however, if it is relevant to prove something other than the defendant’s propensity for committing crimes. J. McCormick, Evidence § 190, at 447 (2d ed. 1972). Thus, the general rule prohibiting the admission of evidence of prior crimes nevertheless

allows evidence of other crimes to be introduced to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to 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.

Morris, supra. Also among these exceptions is the “same transaction” or “res gestae” exception. Commonwealth v. Brown, 462 Pa. 578, 590, 342 A.2d 84, 90 (1975).²

In the case sub judice, it is clear that the evidence of appellee’s statement concerning his prior conviction does not fit into one of these exceptions to the general rule prohibiting the admission of evidence of prior crimes. Nevertheless, we may create new exceptions in appropriate cases.³ In a case such as this, in which the defendant himself has made his prior criminal activity or conviction— whether or not the defendant actually did engage in such criminal activity or actually did have such a conviction — an element of the crime with which he is now charged, our failure to allow this evidence to be admitted would grant to a whole class of criminals immunity from their crimes. If such evidence were not admissible, a criminal would only need to make sure that the fear needed for the commission of his crime emanated from a threat which only embodied a claim of prior criminal activity in order to be “excused” for his activity. If there were other threats of fear accompanying a defendant’s claim that he had engaged in prior criminal activity, the exclusion of evidence of the defendant’s statement would present a much weaker case. We hold, therefore, that when there is evidence that a statement about prior criminal activity was made by the defendant in order to threaten and intimidate his victim, and when force or threat of harm is an element of the crime for which the defendant is being tried, such evidence is admissible.⁴

Although we have determined that evidence of prior criminal acts which the defendant himself makes relevant to prove the crimes with which he is charged is admissible, we are still mindful of the potential for misunderstanding on the part of the jury when this type of evidence is admitted. Therefore, such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted.

In this case, since the admission of the evidence of appellee’s statement concerning his prior conviction was accompanied by a detailed cautionary instruction explaining the limited context in which this evidence could be considered, we conclude that the trial court did not commit error in admitting this evidence.

Our conclusion is not altered by the fact that there was other evidence of force against the victim. The Commonwealth was not required to omit portions of its case to accommodate appellee. A jury is free to believe all, part or none of the evidence presented. Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980). For this reason, the Commonwealth can never be certain which, if any, of its evidence will be believed by the jury and regarded as proving a particular fact beyond a reasonable doubt. We will not hamper the Commonwealth’s ability to present all of its relevant evidence to the jury to prove each and every element of the crimes charged.

Accordingly, the order of the Superior Court is reversed and the judgment of sentence is reinstated.

FLAHERTY, McDERMOTT and PAPADAKOS, JJ., join in this opinion of the court. NIX, C.J., files a concurring Opinion in which ZAPPALA, J., joins. McDERMOTT, J., files a concurring opinion in which FLAHERTY and PAPADAKOS, JJ., join. HUTCHINSON, J., files a concurring opinion.

1 . The court instructed the jury as follows:

In the testimony of the witness presently on the stand ..., yesterday it was stated that before the first act of rape or alleged rape the defendant informed her that he had been in jail previously for an alleged rape. According to [the victim], the defendant told her the incident involved the wife of a cousin of the defendant____ [T]his testimony if it be accepted by the jury, that is to be believed, must be used for the sole purpose for which it was offered. That was to show why the will of [the victim] was overcome to make the act of intercourse and possibly later involuntary deviate sexual relations to be without her consent____

The general rule is that evidence of prior criminal acts canot be considered by a jury in determining the guilt for the act of which that defendant is presently being tried. On the other hand, although this evidence was generally inadmissible it was permitted to be received because it may tend to prove, if believed, one of the necessary elements that the Commonwealth must establish beyond a reasonable doubt for both the offense of rape and the offense of involuntary deviate sexual relations. That is, taking the act that it is claimed or acts that are claimed to be performed as to whether or not the will of the defendant was overcome.... [T]he testimony of the defendant's alleged prior involvement in a rape is to be considered only for what affect [sic] it had on a person of reasonable resolution to determine whether or not that by itself or with the other acts, the pointing of the gun if that occurred, the physical force if that occurred, or whatever it was that overcame her resistance, if it did, would have done so as to a person of reasonable resolution. That’s the reason and the only reason that that testimony was received and it must be considered by the jury in that limited context.

2 . McCormick also lists several other established exceptions, including "to show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial," “evidence of criminal acts of accused, constituting admissions by conduct, intended to obstruct justice or avoid punishment for the present crime,” and "to impeach the accused when he takes the stand as a witness, by proof of his convictions of crime.” § 190, at 449, 451.

3 . Since the issue of the admissibility of evidence of prior crimes which does not fit within any of these exceptions and which tends, rather, to prove the element of force or threat of harm has never been addressed by this Court, contrary to the assertions of Chief Justice Nix in his concurring opinion, it is now necessary to create a new exception to the general rule in order to explain why it was proper to admit the evidence at issue in this case.

4 . “Forcible compulsion” is an element of both rape and involuntary deviate sexual intercourse. See 18 Pa.C.S.A. §§ 3121(1), 3123(1). “Fear of imminent serious bodily injury” is an element of simple assault. See 18 Pa.C.S.A. § 2701(a)(3).