Summary
In Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971), the Court held that in a trial for a robbery in a Philadelphia tavern, during which a Texaco credit card was stolen, evidence of an armed robbery at a Texaco gas station six days later, after which the credit card was recovered, was inadmissible.
Summary of this case from Com. v. BastoneOpinion
November 10, 1970.
January 7, 1971.
Criminal Law — Evidence — Other crimes committed by defendant — Common scheme or relationship to each other of crimes.
1. A distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. [175-6]
2. Evidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or to establish identity of the person charged with the commission of the crime on trial. [176]
3. On appeal by defendant following conviction and sentence on charges of aggravated robbery and conspiracy, in which it appeared that a robbery perpetrated by two persons occurred in a tavern during the course of which an oil company credit card was taken from a patron; that several days later two men entered a gasoline service station, at which time defendant, one of the men, presented an oil company credit card, and the two men proceeded to rob the gas station; that, shortly thereafter, defendant and another man were arrested, and a search of defendant uncovered the tavern patron's credit card; and that, at the trial, the service station attendant was permitted to testify not only concerning the presentation of the oil company credit card but also as to the subsequent armed robbery of the service station; it was Held that the admission of this additional testimony, over objection, constituted prejudicial, reversible error.
Mr. Justice POMEROY concurred in the result.
Mr. Chief Justice BELL took no part in the consideration or decision of this case.
Mr. Justice COHEN took no part in the decision of this case.
Argued November 10, 1970. Before JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 546, Jan. T., 1970, from order of Superior Court, Oct. T., 1969, Nos. 951, 952 and 953, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1966, Nos. 4817, 4818, and 4819, in case of Commonwealth of Pennsylvania v. Otis Foose. Order reversed and new trial granted.
Same case in Superior Court: 216 Pa. Super. 209.
Indictment charging defendant with aggravated robbery and conspiracy. Before SCHWARTZ, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed to the Superior Court, which affirmed the judgment of sentence of the court below, opinion per curiam, SPAULDING, J., dissenting, and dissenting opinion by HOFFMAN, J. Appeal by defendant to Supreme Court allowed.
Thomas C. Carroll, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him Deborah E. Glass, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Following a jury trial appellant was convicted and sentenced on charges of aggravated robbery and conspiracy. On direct appeal the Superior Court affirmed per curiam over the dissent of two judges. Com. v. Foose, 216 Pa. Super. 209, 263 A.2d 780 (1970). We granted allocatur.
The conspiracy sentence was later suspended.
While Judge SPAULDING noted his dissent, Judge HOFFMAN filed a dissenting opinion.
On February 3, 1965, a robbery perpetrated by two persons occurred in a Philadelphia tavern during the course of which a Texaco credit card was taken from John Shinners, a patron. Six days later, two men entered a service station in Abington, Pennsylvania, at which time one of the men, later identified by the station attendant as the appellant, presented an unidentified Texaco credit card. The two men then proceeded to rob the gas station. Shortly, thereafter, appellant and another man were arrested and a search of appellant uncovered Shinners' Texaco credit card.
The present appeal relates to the trial with respect to the tavern robbery. At the trial, not only was the service station attendant permitted to testify concerning the presentation of a Texaco card but also the subsequent armed robbery of the service station. Appellant contends that the admission of this additional testimony, over objection, provides grounds for relief.
It is well settled in this Commonwealth that: "a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime, because the fact of the commission of one offense is not proof of the commission of another. . . . But it is also true that sometimes there exist the 'special circumstances' which operate as exceptions to the general rule, and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or to establish 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." Com. v. Wable, 382 Pa. 80, 84, 114 A.2d 334, 336-37 (1955). Accord, Com. v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964); Com. v. Ross, 413 Pa. 35, 195 A.2d 81 (1963); Com. v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963); Com. v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963); Com. v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955); Com. v. Fugmann, 330 Pa. 4, 198 A. 99 (1938).
It is at this point that the prosecution and the defense part, allowing us to frame the precise issue to be whether the two robberies are so related that proof of one tends to prove the other. The Commonwealth contends that the possession of a recently stolen credit card at a subsequent robbery necessarily evinces a common scheme justifying the admission of evidence concerning the commission of the second crime. However, the record nowhere contains any evidence linking the two robberies and we cannot fathom any direct connection.
Furthermore, as noted by the dissenting judge below: "The only relevant factor [in the 'tavern' prosecution] is that of the possession itself. Accordingly, any reference to collateral circumstances unrelated to the possession itself are unnecessary and should be inadmissible. Certainly, the service station attendant could have testified to the presentation of the credit card alone." 216 Pa. Super. at 212, 263 A.2d at 781. For these reasons we share the view of the dissenting judge that the admission of this additional testimony was improper and highly prejudicial.
The order of the Superior Court is reversed, motion for a new trial is granted and the judgment of sentence is vacated.
Mr. Justice POMEROY concurs in the result.
Mr. Chief Justice BELL took no part in the consideration or decision of this case.
Mr. Justice COHEN took no part in the decision of this case.