Commonwealth v. Middleton

49 Pa. D. & C.3d 660, 1987 Pa. Dist. & Cnty. Dec. LEXIS 74
Pennsylvania Court of Common Pleas, Philadelphia County·Decided December 2, 1987·No. no. 1787·Published

Opinion

SAVITT, J.,

FACTS AND HISTORY

On December 20, 1984 between the hours of 3:15 and 3:45 a.m. on the sidewalk in front of 1904 Carpenter Street, defendant attempted to steal the victim’s purse. When she resisted defendant knocked her down, dragged her into a near-by alley where he stripped her of most of her clothing, beat and stomped ■ her, took her money and several items from her purse and fled the scene leaving her partially clothed body covered by a trash bag.

The case was tried before this court and a jury which on June 9, 1987 returned a verdict of guilty of murder in the first degree and first degree robbery. [662]*662Following deliberation in the penalty stage the jury reported that they were unable to agree on verdict and defendant was sentenced to life imprisonment.

Post-verdict motions were timely filed in support of which defendant argues that the motion court erred in dismissing the case against defendant because of the delay between the commission of the offense and his arrest, that the trial court erred in admitting evidence of a crime other than the one for which defendant was being tried and in allowing expert testimony identifying genetic markers found in the blood on the clothing of defendant and the deceased.

OPINION

With respect to defendant’s claim that the delay between this incident and his arrest constituted a deprivation of due process, dismissal is required only when it is shown that the delay caused substantial prejudice to defendant’s right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. United States v. Marion, 404 U.S. 307 (1971); Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Lightman, 339 Pa. Super. 359, 489 A.2d 200 (1985). If defendant carries the burden of establishing that he was prejudiced by the delay, the goverment must present its reasons for delay. United States v. Lovasco, 431 U.S. 783 (1977); Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985) cert. denied, 476 U.S. 1140 (1986). It is well settled that investigative delay is fundamentally unlike delay undertaken solely to gain tactical advantage over the accused and to prosecute a defendant following such delay does not deprive him of due process, even if his defense might have been [663]*663somewhat prejudiced by the lapse of time. United States v. Lovasco, supra, Commonwealth v. Colson, supra.

The offense in the case at bar occurred on December 20, 1984 and defendant was arrested on July 29, 1986. At the pretrial hearing defendant testified that because of this laspe of time he was not able to remember the full names or to locate the three people who could serve as alibi witnesses on his behalf. The commonwealth introduced evidence that defendant was not arrested until July 1986 because of the difficulty the police encountered in putting together the facts, in obtaining evidence which linked the defendant to the case and in obtaining a witness to the incident. Although it is clear that defendant may have been somewhat prejudiced by this delay, it is equally clear from the record that this was investigative delay and not a delay undertaken solely to gain tactical advantage over defendant. Defendant was not deprived of due process and he is not entitled to a new trial on this basis.

Defendant’s claim that the court erred in admitting evidence of a crime other than the one for which he was being tried has no merit. Although, generally, evidence of the commission of other crimes is not admissible, such evidence is admissible when 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. Banks, 513 Pa. 318, 521 A.2d 1 (1987), cert. denied 108 S. Ct. 211 (1987); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). Furthermore, the fact that a criminal event occurred subsequent to the crime for which defendant is being tried does not preclude introduction of the evidence. Commonwealth v. Clay[664]*664ton, 506 Pa. 24, 483 A.2d 1345 (1984), cert. denied 108 S. Ct. 1098 (1988).

Here, there can be no doubt that the circumstances of the subsequent robbery, which was committed less than three hours after the instant offense and within six blocks of it, were so similar to those of the instant offense that proof of the subsequent offense tended to show that defendant was the person who committed the instant offense. Furthermore, the court instructed the jury that the evidence of the other robbery committed by defendant was admitted for a limited purpose only, as tending to show a common plan, scheme or design, and that the evidence could not be considered as showing that defendant was a person of bad character or criminal tendencies. The evidence of the subsequent robbery of Mrs. Henry was properly admitted and defendant is not entitled to a new trial on this basis.

Finally, defendant argues that the expert testimony of FBI agent Randall Murch, pertaining to the identification of genetic markers found in the blood on the clothing of defendant and the victim based on electrophoresis of dried bloodstains, was improperly admitted.

This court’s research has disclosed no reported Pennsylvania cases pertaining to the admissibility of expert opinion based on electrophoresis of dried bloodstains. The general test for determining the admissibility of expert opinion based on a new scientific technique was first enunciated in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) and adopted by the Pennsylvania Supreme Court in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). The test to be applied is whether the technique on which the expert’s opinion is based is sufficiently established to have gained general accept[665]*665anee in the particular field where it belongs. Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Commonwealth v. Topa, supra.

Electrophoresis is a physical method for the separation of biologically important proteins through the use of electric current. Blood proteins vary in size, shape, density and charge; consequently they vary in electrophoretic mobility. Therefore, after electrophoresis they are separated in distinct bands on the supporting medium. The distinct bands form characteristic patterns that reveal the protein subtypes or genetic markers.

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Commonwealth v. Middleton, 49 Pa. D. & C.3d 660, 1987 Pa. Dist. & Cnty. Dec. LEXIS 74 (Pa. Super. Ct. 1987).

49 Pa. D. & C.3d 660 (Commonwealth v. Middleton) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

United States v. Marion
404 U.S. 307 (Supreme Court, 1971)
United States v. Lovasco
431 U.S. 783 (Supreme Court, 1977)
Commonwealth v. Nazarovitch
436 A.2d 170 (Supreme Court of Pennsylvania, 1981)
People v. Young
391 N.W.2d 270 (Michigan Supreme Court, 1986)
Commonwealth v. Topa
369 A.2d 1277 (Supreme Court of Pennsylvania, 1977)
Commonwealth v. Buehl
508 A.2d 1167 (Supreme Court of Pennsylvania, 1986)
Reed v. State
391 A.2d 364 (Court of Appeals of Maryland, 1978)
Robinson v. State
425 A.2d 211 (Court of Special Appeals of Maryland, 1981)
Commonwealth v. Lightman
489 A.2d 200 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Lykus
327 N.E.2d 671 (Massachusetts Supreme Judicial Court, 1975)
Commonwealth v. Banks
521 A.2d 1 (Supreme Court of Pennsylvania, 1987)
Commonwealth v. Colson
490 A.2d 811 (Supreme Court of Pennsylvania, 1985)
Smith v. State
490 A.2d 1307 (Court of Special Appeals of Maryland, 1985)
Commonwealth v. Daniels
390 A.2d 172 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Clayton
483 A.2d 1345 (Supreme Court of Pennsylvania, 1984)
People v. Borcsok
114 Misc. 2d 810 (New York Supreme Court, 1982)
State v. Washington
622 P.2d 986 (Supreme Court of Kansas, 1981)
Frye v. United States
293 F. 1013 (D.C. Circuit, 1923)