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COMMONWEALTH v. TROWERY (11/16/67)

decided: November 16, 1967.

COMMONWEALTH
v.
TROWERY, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Chester County, March T., 1966, No. 189, in case of Commonwealth of Pennsylvania v. John W. Trowery.

COUNSEL

C. Harry Buckley, for appellant.

Norman J. Pine, First Assistant District Attorney, with him A. Alfred Delduco, District Attorney, for Commonwealth, appellee.

Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Spaulding, J. Wright, J., would affirm on the opinion of Judge Kurtz of the court below.

Author: Spaulding

[ 211 Pa. Super. Page 172]

This appeal is from the trial and conviction by a jury of John W. Trowery, appellant, on a charge of robbery while armed with an offensive weapon and with accomplices. Trial was held in the Quarter Sessions Court of Chester County and defendant was sentenced to imprisonment for a period of not less than 7 1/2 nor more than 15 years and to pay a fine of $500 with costs of prosecution.

The facts relating to defendant's arrest and conviction are not in dispute. On the morning of April 25,

[ 211 Pa. Super. Page 1731966]

two unidentified men entered and robbed the Farmers Bank of Parkesburg. Immediately after the bandits left, one of the employes rushed out of the bank and, from the outside steps, observed a third man sitting in the driver's seat of an automobile across the street. This automobile was used as a "getaway" car by the bandits after the robbery. From an examination of photographs from State Police records, this witness identified the defendant as the man she had seen in the car across the street.

On this appeal appellant contends primarily that prejudicial error was committed by the introduction into evidence, over timely objection, of his photograph from the police file known as the "rogues gallery." He also asserts reversible error in the failure of the trial judge specifically to admonish the jury that the testimony presented to them relating to identification should be received with caution. Since we find the admission of the rogues gallery photograph sufficiently prejudicial to warrant the award of a new trial, we will deal exclusively with that issue.

It is almost too axiomatic to repeat the well-established common law rule that, in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. Shaffner v. Commonwealth, 72 Pa. 60, 13 Am. Rep. 649 (1872); Commonwealth v. Burger, 195 Pa. Superior Ct. 175, 171 A.2d 599 (1961). The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to

[ 211 Pa. Super. Page 174]

    believe the accused guilty, and thus effectually to strip him of the ...


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