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COMMONWEALTH v. MCKENNA (09/16/65)

decided: September 16, 1965.

COMMONWEALTH
v.
MCKENNA, APPELLANT



Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, May T., 1963, Nos. 196 and 197, in case of Commonwealth of Pennsylvania v. William McKenna.

COUNSEL

Martin A. Heckscher, with him Herman I. Pollock, Voluntary Defender, for appellant.

William G. Klenk, II, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Flood, Jacobs, and Hoffman, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 206 Pa. Super. Page 319]

Appellant was convicted by a jury of conspiracy and blackmail. After his motions in arrest of judgment and for a new trial were denied, sentence was imposed. This appeal followed.

Appellant contends that a new trial should be granted on the basis of four alleged trial errors. We shall consider them in the order presented.

First, appellant argues that the trial court erred in permitting the Commonwealth to introduce evidence which disclosed to the jury that he had a prior criminal record even though he did not testify. The Commonwealth's second witness, George Newsome, who had pled guilty to the same conspiracy and blackmail charges, testified that he gave the blackmail statement to one Samuel Evans in exchange for $200.00. The statement had the name Matthew Dietz signed at the bottom, but Newsome said he got it from appellant. Newsome testified in chief that when he asked appellant in a tavern how he got the statement bearing the signature of Dietz, appellant told him that he "brought it out of jail with him." Appellant's motions to strike this statement and to withdraw a juror were overruled. Later, defense witness, Dietz, presented a completely different explanation, denying that the signature on the blackmail statement was his and testifying that he gave two letters for mailing to Newsome in a tavern which letters were used but changed to form the blackmail statement. He testified very evasively as to his contacts with appellant while they were in prison together. Dietz was cross-examined regarding his contact with appellant in jail. The Commonwealth in rebuttal, over objection, introduced Moyamensing Prison records which showed that appellant was an inmate

[ 206 Pa. Super. Page 320]

    there from March 21 to April 13, 1963, and that Dietz was there from March 7 to April 26, 1963, in the same block so that they ate and exercised together. The statement was given to Evans on April 19, 1963, six days after appellant was released from prison. Appellant contends that reversible error was committed in allowing into evidence these references to his imprisonment for an unconnected crime. He claims that the prosecution may not introduce evidence of a defendant's prior crimes unless and until the defendant puts his character into issue by his own testimony or otherwise, citing Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932). This is true in that such evidence may not be admitted for the purpose of affecting credibility until a defendant's character is in issue, nor may a prior offense be shown as substantive proof of an unconnected crime. However, commission of another offense is admissible if it ". . . became part of the history of the event on trial, or was part of the natural development of the facts . . ." Commonwealth v. Williams, supra. The testimony that appellant got the statement in jail showed an essential link in the chain of the crime for which appellant was being tried and was properly admitted. Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20 (1935).

The first time appellant's incarceration was mentioned was in the testimony of Newsome, the co-conspirator, who was testifying as to the declaration of a co-conspirator, appellant. If the trial judge had stricken that part of Newsome's testimony in which appellant told Newsome that he had gotten the note from Dietz in jail, the Commonwealth would have been left with a case consisting of a blackmail statement signed by Dietz and passed to the victim by Newsome. Appellant's part in the plot would have been hazy, to say the least. In light of Dietz's later testimony which implicated Newsome but excluded appellant, it was necessary

[ 206 Pa. Super. Page 321]

    to link appellant with Dietz by credible evidence. The fact that this link occurred while both were in jail does not give appellant the right to keep this fact from the jury. Appellant's presence in prison at the time at issue was very relevant in this case and any possible prejudicial impact was outweighed by the probative value of the testimony. We find no error in allowing the admission of the testimony. What was said by the Supreme Court in Commonwealth v. Robb, 284 Pa. 99 at 104, 130 A. 302 (1925), is applicable here: "Nor is there merit in the complaint that it appears from these narratives that defendant had ...


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