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COMMONWEALTH v. BOULDEN (09/28/55)

September 28, 1955

COMMONWEALTH
v.
BOULDEN, APPELLANT.



Appeals, Nos. 150, 152, Oct. T., 1955, from judgment and sentence of Court of Quarter Sessions of Delaware County, September Sessions, 1954, Nos. 603, 604, in case of Commonwealth of Pennsylvania v. Evan Boulden. Judgment reversed.

COUNSEL

Louis A. Bloom, with him James H. Gorbey and Francis J. Catania, for appellant.

Paul R. Sand, Assistant District Attorney, with him Joseph E. Pappano, First Assistant District Attorney, and Raymond R. Start, District Attorney, for appellee.

Before Hirt, Ross, Gunther, Wright, and Woodside, JJ. (rhodes, P.j. and Ervin, J., absent).

Author: Woodside

[ 179 Pa. Super. Page 330]

OPINION BY WOODSIDE, J.

A jury found the defendant, a 53 year old automobile mechanic, guilty on two indictments charging him with corrupting the morals of two seven year old girls. The charge was brought under section 532 of the Act of June 24, 1939, P.L. 872 added by the Act of June 3, 1953, P.L. 277, section 1, 18 PS § 4532.

The two girls testified that on September 1, 1954 they went into the defendant's garage to get a drink of water, and that while there he took each of them separately into a three foot deep wheel alignment pit where he molested them. Each of the girls testified that when he got her into the pit he had her sit on a scooter or cart which he used while working there, and then pulled her shorts to the side and placed his hand upon her person. He then, after having the girl get up from the cart, sat on it himself and had her sit on his lap facing him with one leg on each side of him. While in this position he exposed himself and further molested the girl.

The defendant admitted that the girls were in his garage; said they were playing with his grandchildren, and denied taking improper liberties with them. He introduced, through character witnesses, his previous good reputation and attempted to show that at the time of the alleged occurrences other people were within sight and hearing of the place of the alleged occurrence,

[ 179 Pa. Super. Page 331]

    so that it would have been impossible for him to have committed the acts without their knowledge.

Although there is always some inherent danger in relying upon the testimony of very young children, the girls in this case told a straight-forward story, and there is no question that the jury had the right to believe their testimony, which indeed it did.

The only question raised in this appeal relates to the admission of the testimony of a 12 year old girl by the learned trial judge and his charge thereon.

Immediately before closing the Commonwealth case the district attorney made an "off the record" offer, after which he called as a witness, Constance Williams. She was permitted to testify, over objections, that during the summer of 1953 before the start of school, she went into defendant's garage to get a drink of water, and that while there he suggested she take a ride on the cart, which she did, that when she got up the defendant sat on the cart and asked her to sit on his lap facing him, and that she refused and left the garage.

It is the admission of this girl's testimony to an alleged occurrence more than a year prior to the offenses for which defendant was indicted, that appellant contends was error.

This witness was asked on cross-examination when she had told her mother of the occurrence, and replied, "Well, I had been over (to) Sally's ... Just before school had started ... This year ... And she said something about Mr. Boulden had showed her a dirty picture; and so then I had told her what happened. And somehow her mother overheard and she told Sally to go over and tell Mrs. Parker, and so Mrs. Parker called me over and she asked me what had happened; and then we went over and told my mother."

[ 179 Pa. Super. Page 332]

No effort was made by counsel for defendant to get the hearsay testimony concerning the picture out of the record, and no emphasis was placed upon this in the appellant's argument. It is, however, a part of the testimony of the witness to whose entire testimony there is objection.

For the purpose of this case we shall assume, but not decide, that the alleged occurrence of the summer of 1953 constituted a crime. Whether it did or not, the testimony should not have been admitted.

The general rule is that "on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible." 22 C.J.S. Criminal Law § 682. Shaffner v. Commonwealth, 72 Pa. 60 (1872); Snyder v. Commonwealth, 85 Pa. 519 (1877); Swan v. Commonwealth, 104 Pa. 218 (1883); Commonwealth v. Saulsbury, 152 Pa. 554, 25 A. 610 (1893); Commonwealth v. House, 223 Pa. 487, 492, 72 A. 804 (1909); Commonwealth v. Shanor, 29 Pa. Superior Ct. 358, 362 (1905).

In Shaffner v. Commonwealth, supra, page 65 it was said:

"If the evidence (of an offense not charged) be so dubious that the judge does not clearly perceive the connection (with the crime charged), the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt."

See also Commonwealth v. House, supra, page 492.

The reason for the general rule was stated by Judge, later Chief Justice, KEPHART, in Commonwealth v.

[ 179 Pa. Super. Page 333]

    centuries, ever since the liberal reaction which began with the Restoration of the Stuarts, this policy of exclusion, in one or another of its reasonings, has received judicial sanction, more emphatic with time and experience. It represents a revolution in the theory of criminal trials, and is one of the peculiar features, of vast moment, which distinguishes the Anglo-American from the Continental system of Evidence."

There are, of necessity, a number of well established exceptions to the general rule, but before discussing them an examination of the rule itself is in order. The original rule of England and early America on this point was that evidence of the commission of a crime other than that charged was not admissible when relevant merely to show disposition. In other words if the evidence was relevant for any other purpose except to prove the defendant's disposition to commit the particular crime, or crimes generally, it was admissible.

For over a hundred years now Pennsylvania and many other jurisdictions in the United States have drifted away from the original rule and have followed the general rule first set forth above and added thereto numerous exceptions.

Had our courts followed the original rule and carefully applied it, very few of the numerous cases on the subject would have been decided differently. That is because, in a sense at least, the exceptions are aids in determining relevancy. The courts generally have not hesitated to create a new "exception" to cover a case where the evidence seemed relevant for purposes other than disposition to commit crime. For this ...


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