Opinion
No. 591 Philadelphia 1998.
Filed: November 9, 1999.
Appeal from the Judgment of Sentence September 29, 1997, in the Court of Common Pleas of Philadelphia County, Criminal Division at No. 9610-0410.
BEFORE: POPOVICH, SCHILLER and HESTER, JJ.
OPINION
¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on September 29, 1997, following appellant's conviction for possession of a controlled substance (cocaine) with the intent to deliver. Appellant was sentenced to eleven and one-half to twenty-three months of incarceration, to be followed by sixty months of probation. Upon review, we reverse and remand for a new trial.
¶ 2 Herein, appellant questions: a) Was the evidence insufficient to sustain his conviction for possession cocaine with the intent to deliver; b) Did the lower court err as a matter of law or commit an abuse of discretion in failing to grant his motion in limine, in which he sought to exclude from trial evidence of his prior conviction for possession of cocaine with intent to deliver?
Appellant also questions:
Was defense counsel constitutionally substandard and ineffective for not interviewing witnesses sufficiently, failing to object to the admission of incriminating evidence and testimony[,] failing to adequately investigate the facts of the case[,] and failing to communicate with the [appellant] as to trial options[?]
Was [appellant] denied a fair and impartial trial owning to prosecutorial misconduct[?]
Was [appellant] subjected to illegally excessive or harsh sentencing by the court for the offenses of which he was convicted[?]
Appellant's Brief, p. iii.
Given our remand for a new trial, we need not address these additional issues.
¶ 3 Initially, we note that although appellant generally asserts in his "Statement of Questions Involved" that his conviction was against the weight of the evidence, he actually argues that the evidence was insufficient to sustain the verdict. As such, we will review only his actual claim that the evidence was insufficient to prove beyond a reasonable doubt that he possessed cocaine with intent to deliver. Specifically, he asserts that the Commonwealth never proved that he actually delivered any narcotics.
¶ 4 Our standard of review for evaluating a claim that the evidence was insufficient to support the verdict is well established:
In reviewing the sufficiency of the evidence to support a conviction, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Hanes, 361 Pa. Super. 357, 361, 522 A.2d 622, 623-24 (1987); Commonwealth v. Reddix, 355 Pa. Super. 514, 519, 513 A.2d 1041, 1045 (1986); Commonwealth v. Duffy, 355 Pa. Super. 145, 154-55, 512 A.2d 1253, 1260-61 (1986). If a jury could have reasonably determined from the evidence adduced that all of the necessary elements of the crime were established, then the evidence will be deemed sufficient to support the verdict. Commonwealth v. Gerulis, 420 Pa. Super. 266, 273, 616 A.2d 686, 689 (1992); Commonwealth v. Berkowitz, 415 Pa. Super. 505, 515, 609 A.2d 1338, 1343 (1994).
Commonwealth v. Wood, 637 A.2d 1335, 1343 (Pa.Super. 1994).
¶ 5 Applying the foregoing standard of review, we find that the record reveals: On August 7, 1996, at approximately 7:50 p.m., Philadelphia Police Officers Scott Forstater and Joseph McCook were on routine patrol in a marked police wagon in the area of the 1800 block of Hart Lane. The area the officers were patrolling was known to be a narcotics trafficking area. As they were travelling on Hart Lane, Officer Forstater observed appellant standing on the northwest corner of Ruth Street and Hart Lane. As Officer Forstater watched, appellant received United States currency from a white male, after which appellant removed some small, light-colored objects from a brown paper bag which he was holding and handed them to the white male. As the officers entered the intersection, appellant looked in their direction and then tossed the paper bag to the sidewalk.
¶ 6 The officers then exited their vehicle and approached appellant. Officer Forstater stopped appellant, and, at Officer Forstater's direction, Officer McCook retrieved the paper bag from the ground. The bag contained ten clear, plastic vials containing a white, chunky substance, which was later determined to be crack cocaine, weighing less than two grams. Appellant was arrested, and $93.00 was seized from appellant's person. In addition, another individual, Sam Brown, who was standing near appellant, was also handcuffed and placed in the officers' vehicle. Appellant's girlfriend, Maria Agosto, who was also standing near appellant, was frisked for weapons and briefly detained. The officers then looked for the white man who conducted the transaction with appellant but could not locate him.
¶ 7 Upon consideration of the record in the light most favorable to the Commonwealth, we find that the evidence was clearly sufficient to sustain appellant's conviction for possession of cocaine with the intent to deliver. In order to uphold a defendant's conviction for possession of narcotics with the intent to deliver, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it. Commonwealth v. Harper, 611 A.2d 1211 (Pa.Super. 1992). The intent to deliver may be inferred from the examination of the facts and circumstances surrounding the case. Harper, supra. Factors which may be relevant in establishing that drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug and the behavior of the defendant. Commonwealth v. Sherrell, 607 A.2d 767 (Pa.Super. 1992), appeal denied, 533 Pa. 610, 618 A.2d 400 (1992).
¶ 8 Presently, Officer Forstater witnessed appellant accept cash from an unidentified, white male, in exchange for which appellant gave the man a number of small, light colored objects from a brown paper bag. Officer Forstater observed appellant discard that paper bag upon his and his partner's approach. Subsequent investigation revealed that the paper bag contained ten individual vials containing crack cocaine, and appellant possessed $93.00. Despite the fact that the person who purchased drugs from appellant escaped apprehension, we are convinced that the evidence was clearly sufficient to prove appellant possessed the cocaine with intent to deliver, given Officer Forstater observation of the transaction and the seizure of ten clear plastic vials of cocaine from the bag which appellant discarded. Cf., Commonwealth v. Brinkley, 620 A.2d 1226 (Pa.Super. 1993), appeal denied, 535 Pa. 630, 631 A.2d 1003 (1993) (evidence that defendant possessed two bags containing small, individual bags of cocaine, in an area known for cocaine sales was sufficient to sustain defendant's conviction for possession of cocaine with the intent to deliver).
¶ 9 In his second assertion of error, appellant claims that the trial court erred in refusing to grant his motion in limine which he sought to exclude evidence of his prior arrest for selling crack cocaine in the vicinity of 1817 Hart Lane. Appellant claims that the court's refusal to grant his motion impermissibly interfered with his constitutional right to testify on his own behalf. In other words, appellant claims that he did not testify at trial because he feared that his prior conviction would be used against him, either to impeach his credibility or as substantive evidence of his intent to sell drugs. Upon review of the record before us, we conclude that the trial court erred when ruling upon the motion in limine.
¶ 10 Our review of a trial court's ruling on a motion in limine is limited, and the court's ruling is entitled to great deference. We may only reverse that ruling if it constitutes an error of law or a clear abuse of discretion. Commonwealth v. Young, 692 A.2d 1112, 1115 (Pa.Super. 1997), citing Commonwealth v. Noll, 662 A.2d 1123, 1125 (Pa.Super. 1995), appeal denied, 543 Pa. 726, 673 A.2d 333 (1996). The law applicable to the lower court's ruling on appellant's motion in limine was set forth by this court in Commonwealth v. Camperson, 612 A.2d 482, 483-484 (Pa.Super. 1992), appeal denied, 533 Pa. 642, 622 A.2d 1374 (1993) (hereafter, Camperson I), as follows:
The law applicable to evidence of prior criminal activity was stated by the Supreme Court in Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), as follows:
Evidence of a defendant's distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988). However, this general proscription against admission of a defendant's distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this Court has recognized in the past as legitimate bases for admitting evidence of a defendant's distinct crimes include (but are not limited to): (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 naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial 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; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant's prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called "res gestae" exception). See Commonwealth v. Lark, supra 518 Pa. at 302, 543 A.2d at 497 and cases cited therein, and Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).
Id. 521 Pa. at 177, 555 A.2d at 840. See also: Commonwealth v. Grekis, 411 Pa. Super. 513, 531, 601 A.2d 1284, 1293 (1992); Commonwealth v. Bybel, 399 Pa. Super. 149, 154-155, 581 A.2d 1380, 1382-1383 (1990). Cf. Commonwealth v. Martinez, 301 Pa. Super. 121, 447 A.2d 272 (1982). In Commonwealth v. Harvey, 348 Pa. Super. 544, 502 A.2d 679 (1985), the Superior Court added:
"To be admissible to show intent or motive, the evidence must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances." Commonwealth v. Brown, supra 280 Pa.Super. [303] at 308, 421 A.2d at 736, citing Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971). There must be a logical connection between the prior incident and the crime for which the accused is being tried. Important factors to be considered in making this determination include the proximity in time between the incidents; the similarity in the circumstances surrounding the incidents; and whether evidence of the prior crime is necessary to rebut the accused's evidence or contention of accident, mistake or lack of required intent. See: Commonwealth v. Sparks, supra 342 Pa.Super. [202] at 206, 492 A.2d [720] at 722 [(1985)]; Commonwealth v. Barba, supra 314 Pa.Super. [210] at 222, 460 A.2d [1103] at 1109 [(1983)].
Id. 348 Pa.Super. at 558, 502 A.2d at 686. However, even where evidence of prior criminal conduct is within one of the above exceptions, the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Steele, 408 Pa. Super. 128, 131, 596 A.2d 225, 227 (1991); Commonwealth v. Echevarria, 394 Pa. Super. 261, 267, 575 A.2d 620, 623 (1990). The trial court's determination regarding the admissibility of evidence of prior crimes will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Nolen, 390 Pa. Super. 346, 568 A.2d 686 (1989); Commonwealth v. Laskaris, 385 Pa. Super. 339, 561 A.2d 16 (1989).
¶ 11 Presently, the parties apparently discussed appellant's motion in limine prior to trial, and the parties discussed the motion on-the-record prior to the start of the second day of appellant's trial. N.T., 7/31/97, p. 2-8. Appellant argued: 1) his prior conviction could not be admitted in the Commonwealth's case-in-chief to show his bad character or his propensity to commit criminal acts; 2) the prior conviction for drug trafficking could not be admitted to impeach his credibility should he take the stand; and 3) his prior conviction could not be admitted to show his intent to sell drugs.
¶ 12 The trial court agreed that the conviction could not be used simply to demonstrate appellant's bad character or his propensity to commit crimes and that the conviction, since it was not a crimen falsi, could not be used to impeach defendant's credibility. N.T., 7/31/97, p. 4. The Commonwealth also indicated that it would not offer evidence of appellant's prior conviction in its case-in-chief. N.T., 7/31/97, p. 3. However, the court indicated that it would not rule on appellant's claim that the prior conviction was not admissible to rebut appellant's testimony, until such time as appellant's defense was clear. N.T., 7/31/97, pp. 3-8. In other words, the trial court believed that the admissibility of appellant' prior conviction was dependent upon the similarity of appellant's prior conviction to the facts of this case.
¶ 13 The parties again discussed the motion in limine immediately before appellant was to testify. N.T., 7/31/97, pp. 131-139. Once more, the lower court ruled that it would not absolutely forbid the Commonwealth from offering evidence of appellant's prior conviction but, rather, would rule on its admissibility based upon appellant's testimony. N.T., 7/31/97, pp. 132-136. Despite apparently reserving its ruling for a later time during the trial, the court indicated the very real possibility that the evidence would be admissible to show appellant's intent to deliver when, applying the criteria set forth in Camperson I, supra, the court stated: "It's a similar location, similar substance, similar packaging. There are some dissimilarities in the sense that there were some markings on the package. I believe it is probably admissible to show intent." N.T., 7/31/97, p. 133.
¶ 14 Presently, a copy of the motion in limine does not appear in the record. Thus, our review of the motion and the particular facts relative to appellant's prior conviction is limited to statements made during arguments concerning the motion. Apparently, some nine months before the present offense, appellant was arrested for possession of crack cocaine with the intent to deliver in the area of 1817 Hart Lane. At that time, a police officer observed appellant accept currency from an unknown Hispanic male. Appellant then saw the officer and discarded a clear plastic bag containing twenty-four clear plastic vials of crack cocaine. The cocaine was seized. Appellant was arrested and later convicted of possession of cocaine with the intent to deliver.
¶ 15 As we held in Camperson I, 612 A.2d at 483-484, a defendant's prior conviction may be admissible it if is relevant for some legitimate evidentiary reason, such as to prove the defendant's intent to commit the crime charged, and not merely offered to prejudice the defendant by showing him to be a person of bad character. To admit evidence of a prior crime, "[t]here must be a logical connection between the prior incident and the crime for which the accused is being tried." Camperson I, 612 A.2d at 484; see Commonwealth v. Martin, 479 Pa. 63, ___, 387 A.2d 835, 838 (1978), quoting Commonwealth v. Schwartz, 445 Pa. 515, 522, 285 A.2d 154, 158 (1971) To determine whether such a logical connection exists, the court must consider the proximity in time between the events, the similarity in the circumstances surrounding the incidents and whether the evidence is necessary to rebut the accused's evidence of accident, mistake or lack of required intent. Camperson I, 612 A.2d at 484, quoting Harvey, 502 A.2d at 686. Finally, and, most importantly, where evidence of a prior crime is offered to show intent, the trial court must balance the need for the evidence with the potential for prejudice before admitting the evidence. Camperson I, 612 A.2d at 484, citing Steele, 596 A.2d at 227.
¶ 16 The lower court based its refusal to grant appellant's motion in limine on Camperson I, supra. However, we are convinced that the case before us is clearly distinguishable from the case of Camperson I, supra. In that case, Brian Wynn was arrested for selling methamphetamine to an undercover police officer on December 6, 1989. Wynn told the police that he had obtained the drugs from Steven Camperson. The next day, Wynn, then under police surveillance, met with Camperson and delivered to him $3500.00 and requested Camperson to deliver additional drugs to him at 5:00 p.m. at the County Tavern in Chester County. Camperson agreed, and later, police arrested Camperson as he approached the tavern. At the time of his arrest, Camperson possessed 238.8 grams of methamphetamine and the $3500.00 in cash. Camperson was charged with, inter alia, possession of methamphetamine with the intent to deliver at Information Number 178-90.
¶ 17 A subsequent search of Camperson's home revealed additional methamphetamine, cocaine and drug paraphernalia, and, at Information Number 3108-90, Camperson was charged with, inter alia, possession of methamphetamine with intent to deliver and possession of cocaine with the intent to deliver. Thereafter, Camperson was tried and convicted of the offenses charged at Information Number 178-90. He then moved to prevent the Commonwealth from using evidence of that conviction for possession of methamphetamine with intent to deliver during the trial for the offenses charged at Information Number 3108-90. The lower court granted Camperson's motion in limine, ruling that the evidence of appellant's prior convictions, even if relevant, was outweighed by its prejudicial effect.
¶ 18 The Commonwealth filed an immediate appeal from the lower court's order. Before this court, the Commonwealth argued that the evidence of Camperson's criminal activity earlier in the day was "strongly probative of the defendant's knowledge of controlled substances in his residence, his power and intent to control those substances, and his possession of those substances with the intent to deliver." Camperson I, 612 A.2d at 483. Upon review, we held that the evidence of those circumstances surrounding his prior conviction for possession of methamphetamine was admissible as substantive evidence of Camperson's intent to deliver those drugs found in his residence. Specifically, we reasoned:
It requires no citation of authority that the burden of proving defendant's guilt is on the Commonwealth. To meet this burden, the Commonwealth may rely upon and present to the jury all relevant evidence which is not subject to exclusion. Here, the Commonwealth is required to prove, inter alia, that the methamphetamine found in the defendant's home was intended for distribution to others. Although this intent may be proved in several ways, one of the strongest and most compelling pieces of evidence is that the defendant, in fact, had been distributing methamphetamine on the same day on which methamphetamine and cocaine were found in his home. The evidence of his prior conduct, therefore, will not only be important to the Commonwealth but also enlightening to the factfinder. When the trial court refused to allow the Commonwealth to use the prior offer to sell methamphetamine in order to establish its case against the defendant, the court abused its discretion and committed an error of law.
Camperson I, 612 A.2d at 485.
¶ 19 As previously stated, we are convinced that the facts of Camperson I, supra, readily distinguish it from the case before us. In Camperson I, supra, the defendant was charged with possession of controlled substances with the intent to deliver following a search of his home. The search of Camperson's residence and the seizure of drugs therefrom were a direct result of Camperson's engaging in a deal to sell methamphetamines only hours earlier and the actual seizure of methamphetamines. His prior drug transaction and arrest were "compelling" evidence of his intent to distribute those narcotics seized at his home only shortly after his arrest.
¶ 20 Presently, appellant's prior conviction for selling crack cocaine does not have a sufficient nexus with the charge before us to permit introduction of the evidence to prove appellant's intent to distribute the drugs on the date of his arrest. As previously stated, the current charges did not grow out of and were not in any way caused by the facts and circumstances of the prior crime. Camperson I, 612 A.2d at 484, quoting Harvey, 502 A.2d at 686 (quoting Brown, 421 A.2d at 736). Admittedly, the circumstances of appellant's prior conviction for possession of cocaine with the intent to deliver is similar in location (i.e., Hart Lane), type of narcotic (i.e. crack cocaine) and style of transaction (i.e., street-corner sale). However, his prior crime occurred nine months earlier. Evidence of that transaction was not, as in Camperson, supra, "compelling" evidence of his present intent to deliver cocaine. Rather, we find that the prejudicial effect of the evidence of his prior crime would greatly outweigh its probative value. We are convinced that such evidence would merely invite the jury to ignore any concerns it may have had with the Commonwealth's evidence and convict appellant on the current charges based upon his prior conviction for a similar transaction.
¶ 21 Further, we are of the opinion that the lower court should have taken its guidance from Commonwealth v. Hude, 390 A.2d 183 (Pa.Super. 1978). Therein, Manfred Hude was charged with multiple counts of possessing and delivering marijuana. The Commonwealth's primary witness, a sixteen-year-old boy, testified that on numerous occasion beginning late in October of 1974, he met with Hude, and Hude supplied him with marijuana to sell at his high school.
¶ 22 Hude denied selling marijuana to the boy. On cross-examination, the Commonwealth asked Hude whether in December of 1973 or January of 1974, he had offered to sell marijuana to a courtroom spectator, one Donald Batts who happened to be an undercover narcotics officer. Hude denied he knew Batts, and the Commonwealth sought to offer Batts' testimony in rebuttal. Over the defense's objection, the trial court permitted Batts to testify that Hude had offered to sell him marijuana in March of 1974. Appellant was convicted on all delivery counts.
¶ 23 On appeal, we reversed the lower court's decision to admit Batts' testimony, stating:
In the instant case, we believe that none of the traditional exceptions to the "other crimes" rule applies and that evidence of appellant's alleged offer to sell marijuana to narcotics agent [Batts] should have been excluded. The 8 + months hiatus between the alleged offer to sell and the first of the sales charged in the indictment dispels any claim that the distinct transactions were all part of a continuing scheme, plan, or conspiracy. Commonwealth v. Fortune, [ 464 Pa. 367, 373, 346 A.2d 783, 786 (1975)]. The Commonwealth makes no attempt to demonstrate that the offer to sell and the actual sales involved a modus operandi so unique as to be tantamount to appellant's signature; rather, these alleged crimes have no distinctive elements separating them from ordinary drug transactions and locking them together into a chain. Commonwealth v. Fortune, supra; McCormick [on Evidence], [§ 190] at 449 [(2nd Ed. 1972)]. . . . [T]here is no causal connection between the two crimes and the occurrence of the first crime sheds no light on why or how the subsequent crimes charged occurred. In short, the alleged March, 1974 offer to sell does not assist the jury in its determination of whether the Commonwealth has proven the elements of the crime of selling marijuana between November 30, 1974, and January, 1975. The only relevance of the prior offer is "to ground the [impermissible] inference that the accused is a bad man and hence probably committed this crime." McCormick, supra at 453. See also Commonwealth v. Bradley, [ 364 A.2d 944 (Pa.Super. 1976)].
Even if one of the traditional exceptions could be invoked, we would still hold that the lower court abused it discretion in admitting evidence of the alleged prior offer to sell marijuana. In McCormick, supra, the commentator chastises judges who end all inquiry once they decide whether or not a particular exception to the "other crimes" rule applies. The commentator warns that this practice of "pigeonholing" may cause trial and appellate judges to ". . . lose sight of the underlying policy of protecting the accused against unfair prejudice. The policy may evaporate through the interstices of the classification." McCormick, supra, at 453. Accordingly the commentator recommends that courts balance ". . . on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, and the strength or weakness of their other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility. [ supra] at 453." In Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186, 191 n. 11 (1977), our Supreme Court recently endorsed the application of this balancing process, even though the Commonwealth had established the independent relevancy of the "other crimes" evidence through application of the traditional exceptions. See also Commonwealth v. Patterson, [ 372 A.2d 7 (Pa.Super. 1977). (Dissenting Opinion of HOFFMAN, J.); Commonwealth v. Bradley, supra. Thus, even assuming independent relevancy under a traditional exception, we should still determine if the policies behind the "other crimes" rule mandate exclusion of evidence of the alleged prior offer to sell marijuana.
In the instant case, we believe that the balancing process operates to exclude evidence of the March, 1974 offer to sell. First, the Commonwealth has little need to produce evidence of the prior offer to sell because it can rely upon the direct testimony of a participant in the charged drug transactions to inculpate appellant. Commonwealth v. Bruno, 215 Pa. Super. 407, 258 A.2d 666 (1969). Second, the evidence that the accused actually attempted to sell marijuana to undercover agent [Batts] is weak; the Commonwealth did not secure a conviction or even arrest appellant on this charge. Commonwealth v. Bradley, supra. Third, the 8 1/2 month gap between the March, 1974 offer to sell and the November 30, 1974-January, 1975 sales makes evidence of the "other crime" remote and of little help in assessing appellant's culpability for subsequently selling drugs. Against these tenuous Commonwealth interests, we must weigh appellant's substantial interest in not being convicted because he is a "bad man." Most importantly, appellant has a strong interest in having the jury focus its undivided attention on evidence of his participation in the charged drug transactions. Evidence of the prior offer to sell unfairly diverts the jury's attention to a remote and wholly collateral incident and deprives appellant of an unclouded determination of his credibility versus that of his accuser. Moreover, [Batts'] testimony required appellant to alter his defense to meet charges of which he had no notice. Commonwealth v. Fortune, supra; Commonwealth v. Bradley, supra; Commonwealth v. Boulden, supra. Balancing the factors listed in McCormick, supra, we believe that the lower court abused its discretion in admitting evidence of the prior offer to sell.
Hude, 390 A.2d at 185-186.
¶ 24 Applying the holding of Hude, supra, to the case before us, we find that the lower court abused its discretion by refusing to grant appellant's motion in limine for several reasons. First, there is no evidence that appellant's current crime "grew out of or was in any way caused by the prior set of facts and circumstances." Camperson I, 612 A.2d at 484, quoting Harvey, 502 A.2d at 686 (quoting Brown, 421 A.2d at 736). Second, while the facts of this case are similar to those of his prior arrest for possession of cocaine with intent to deliver, some nine months passed between the two events, and, therefore, the two separate events were not proximate in time. In addition, facts of appellant's prior conviction for selling cocaine and the present crime are not so unusual as to be tantamount to appellant's signature." Hude, 390 A.2d at 185. Thus, the probative value of the evidence was minimal. Third, while appellant had not yet testified, his defense was clear. He argued that he was arrested simply because he was proximate to the drugs which were found in a "high crime area." Evidence of a prior drug transaction which occurred some nine months earlier was not necessary to rebut the defense. Fourth, and most importantly, the lower court did not weigh the Commonwealth's need for the evidence against the potential prejudice of the evidence.
¶ 25 Clearly, the Commonwealth had no need for the evidence of appellant's prior conviction in light of Officer Forstater's testimony that he witnessed appellant engage in a drug transaction and the undisputed evidence that the contraband seized at the time of appellant's arrest was crack cocaine. Also, the potential prejudice of admitting evidence of a prior arrest for cocaine trafficking in the same area as the current crime is palpable. Were the jury to hear evidence that appellant engaged in a similar drug transaction, it could certainly be persuaded to forego any questioning of the Commonwealth's case and simply convict appellant because of his "propensity" for selling drugs.
¶ 26 We are mindful that the fundamental purpose of the rule is to balance the potential prejudice from the revelation of a prior conviction against the constitutional right of a defendant to testify on his own behalf. Commonwealth v. Tacker, 446 A.2d 627, 630 (Pa.Super. 1982). Herein, the lower court violated that appellant's right to testify on his own behalf by not ruling upon appellant's motion in limine prior to hearing his testimony. The effect of the court's decision to defer its ruling on the motion until after appellant testified was to cause appellant to forego his constitutional right to testify on his own behalf. We are even more convinced of the propriety of our ruling when we consider that the court stated on-the-record that it believed the evidence of his prior conviction was "probably admissible to show intent." N.T., 7/31/97, p. 133. While it is not unconstitutional to require a defendant to weigh the "pros and cons" of taking the stand, Commonwealth v. Bighum, 452 Pa. 554, ___, 307 A.2d 255, 262 (1973), we are convinced that he must be permitted to make such a decision based upon the correct application of the law. Since the lower court in this case clearly indicated a predisposition to admit the evidence of his prior conviction — and we believe that to be erroneous — we find that appellant must be awarded a new trial.
¶ 27 Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.
¶ 28 SCHILLER, J. files a Dissenting Statement
¶ 1 I concur with the majority's conclusion that there is sufficient evidence to sustain Appellant's conviction for possession of cocaine with intent to deliver. However, as I believe the trial court properly refused to grant Appellant's motion in limine with respect to evidence of his prior arrest for selling crack cocaine, I respectfully dissent.
¶ 2 Appellant is a drug dealer. The circumstances of the current crime and the prior crime for which he was convicted are virtually identical. The trial court properly ruled that evidence of this prior conviction would be admissible to rebut Appellant's testimony, in the event he testified, on the issue of intent. See, e.g., Commonwealth v. Saxton, 516 Pa. 196, 532 A.2d 352 (1987) (evidence of a prior firearms conviction was admissible to rebut the defendant's statement that he never owned a gun); Commonwealth v. Gelber, 594 A.2d 672 (Pa.Super. 1991), appeal denied, 529 Pa. 667, 605 A.2d 332 (1992) (evidence of drug use and drug dealing admissible to rebut defendant's claim of self-defense and to show motive); Commonwealth v. Barba, 460 A.2d 1103 (Pa. Super. 1983) (evidence that the defendant participated in other transactions involving stolen property admissible to demonstrate his knowledge that items in his possession were stolen); Commonwealth v. Barnhart, 434 A.2d 191 (Pa.Super. 1981) (evidence of prior burglaries admitted to rebut claim of defendant that he was an innocent bystander). In my view, a nine-month gap between these two offenses does not preclude the use of the conviction for this limited purpose; rather its probative value outweighs any prejudice resulting from its admission. I would therefore affirm the court's decision to deny Appellant's motion in limine, and would affirm Appellant's conviction, finding no merit to Appellant's remaining issues in this appeal.
I believe the case relied on by the majority, Commonwealth v. Hude, 390 A.2d 183 (Pa.Super. 1978), is clearly distinguishable from the case sub judice. The defendant in that case did not base his defense on mistake or entrapment, and the evidence of prior crimes at issue in that case was admittedly weak the defendant had not been arrested or convicted on the prior drug charge, as it was never consummated. By contrast, Appellant's anticipated testimony in this case was that he was arrested because he was in the wrong place at the wrong time; the evidence the Commonwealth sought to introduce in rebuttal was a conviction for the same offense for the same narcotic in the same approximate location.