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COMMONWEALTH v. BONNANO (03/19/70)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 19, 1970.

COMMONWEALTH
v.
BONNANO, APPELLANT

Appeals from judgment of sentence of Court of Oyer and Terminer, Nos. 601 and 602 of Jan. T., 1966 and No. 570 of June 1966, in case of Commonwealth of Pennsylvania v. Frank Bonnano.

COUNSEL

F. Emmett Fitzpatrick, Jr., for appellant.

James D. Crawford, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Watkins, J., absent). Opinion by Spaulding, J. Wright, P. J., would affirm on the opinion of Judge Barbieri. Jacobs, J., dissents.

Author: Spaulding

[ 216 Pa. Super. Page 202]

In Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A.2d 171 (1967), photographs of the defendant from a police file commonly known as the "rogues gallery" were introduced into evidence over timely objections. This Court held that admission to be reversible error. As we stated in Trowery, the well established common law rule is 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)." See also, Commonwealth v. Allen, 212 Pa. Superior Ct. 314, 242 A.2d 901 (1968).

[ 216 Pa. Super. Page 203]

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 the crime for which he is being tried.

In the instant case, Officer Barbera testified that he arrested appellant, Frank Bonnano, while appellant was in a federal prison. In Commonwealth v. Choice, 211 Pa. Superior Ct. 176, 235 A.2d 173 (1967), in a dissenting opinion to a per curiam affirmance, it was stated that evidence could not be admitted at trial which might have the effect of predisposing the jurors to believe the defendant guilty by virtue of previous police contact. 211 Pa. Superior Ct. at 180. In that case, the jury heard testimony that the defendant was arrested "at his parole office." The dissent reasoned that Trowery required that a new trial be granted. The testimony in the instant case that appellant was arrested while in federal prison violates the principles of Trowery.

The judgment of sentence is vacated and a new trial is granted.

Disposition

Judgment vacated and new trial granted.

19700319

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