Commonwealth v. Hude

390 A.2d 183, 256 Pa. Super. 439, 1978 Pa. Super. LEXIS 3056
Superior Court of Pennsylvania·Decided July 12, 1978·No. 358·Published·Cited by 47 cases

Opinions

HOFFMAN, Judge:

Appellant contends that the lower court improperly permitted the introduction of evidence of crimes unrelated to those listed in the indictments. We agree and, therefore, would grant appellant a new trial.1

On March 7, 1975, appellant was arrested on multiple charges of possessing and delivering marijuana.2 The indict[441] ments filed by the Commonwealth specified that appellant sold drugs to a high school student on a number of designated occasions ranging from about November 30, 1974, to about January 1, 1975. At a jury trial on September 19 and 21, 1975, the Commonwealth’s primary witness, a sixteen year old boy, testified as follows: appellant and he consu-mated a series of marijuana transactions from the end of October, 1974, through January, 1975, at Dempsey’s Diner in Allentown, Lehigh County. Appellant would drive to these meetings in a white Datsun station wagon; some exchanges occurred inside this station wagon. The witness admitted that he had recently pleaded guilty to selling drugs to his high school classmates.

Appellant testified that he never sold his accuser marijuana, despite the boy’s repeated offers to buy from October, 1974, through January, 1975. He admitted meeting the sixteen year old boy at Dempsey’s Diner on one occasion on October, 1974, but stated that all other conversations from this date through January, 1975, occurred over the telephone. He also testified that he had been at his parent’s home watching television on two of the particular dates named in the indictments and bill of particulars. Finally, he testified that the white Datsun station wagon had been in a repair shop from October 31, 1974, to January 14, 1975.3

On cross-examination, the prosecutor, over objections, asked appellant if, in December, 1973, or January, 1974, he had offered to sell marijuana to a courtroom spectator, one Donald Batz. Appellee denied that he had ever met Batz before. The Commonwealth subsequently called Batz on rebuttal; in an offer of proof, the prosecutor asserted that appellant had offered to sell Batz marijuana in March, 1974. Appellant’s counsel objected because such testimony would be remote and would contravene the rule against introducing evidence of “other crimes.” The prosecutor responded that he did not seek to introduce the evidence as an exception to the “other crimes” rule; instead, he argued that the evidence impugned appellant’s credibility because appellant [442] had not objected to the initial inquiry as to previous offers to sell and had denied making any such offers.4 The lower court overruled the objection, and Batz testified that he was an undercover narcotics agent and that in the second week of March, 1974, appellant, while working at the Dixon Street Saloon in Allentown, offered to sell him a pound of marijuana for $425. Because of the steep price, negotiations collapsed. On September 21, 1975, the jury convicted appellant of all charges, and on October 28, 1976, after denying post-verdict motions, the lower court imposed a five to ten year term of imprisonment. This appeal followed.

Appellant contends that the Commonwealth’s cross-examination and Batz’s rebuttal testimony improperly introduced “other crimes” evidence. In Commonwealth v. Bradley, 243 Pa. Super. 208, 212, 364 A.2d 944, 945-46 (1976), 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 (2nd Ed. 1972). Special circumstances justifying exceptions to the general rule exist when the evidence of other crimes ‘tends 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 [443] others; or (5) to establish the identity[5] 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. Peterson, supra, 453 Pa. at 197—198, 307 A.2d 269.”6

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Commonwealth v. Hude, 390 A.2d 183, 256 Pa. Super. 439, 1978 Pa. Super. LEXIS 3056 (Pa. Ct. App. 1978).

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