Appeals from judgment of sentence of Court of Common Pleas of Lehigh County, Jan. T., 1969, Nos. 73 and 84, in case of Commonwealth v. Samuel Paul Trapp.
Malcolm J. Gross, Assistant Public Defender, for appellant.
Wardell F. Steigerwalt, Assistant District Attorney, and George J. Joseph, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Jacobs, JJ., would affirm the judgment below.
[ 217 Pa. Super. Page 385]
Appellant and a co-defendant were tried together before a jury on charges of burglary, larceny, receiving stolen goods, and conspiracy. After the jury had been selected before the Administrative Judge and sworn, both defense counsel moved for a mistrial on the ground that trial booklets had been submitted to the jury panel
[ 217 Pa. Super. Page 386]
which included the information that appellant and co-defendant were being charged with other crimes.*fn1 These motions were denied, and, after presentation of evidence, the jury found both defendants guilty. Motions for new trial and in arrest of judgment were filed and denied. This appeal followed.
The question presented in this case is whether a new trial should be granted because of the potential prejudice created by the distribution of the trial list.*fn2
Pennsylvania law is clear that evidence 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. Commonwealth v. McDaniel, 217 Pa. Superior Ct. 20, 268 A.2d 237 (1970); Commonwealth v. Free, 214 Pa. Superior Ct. 492, 259 A.2d 195 (1969). McDaniel was concerned with the
[ 217 Pa. Super. Page 387]
discovery after trial that several jurors were aware from the trial booklet that the defendant was charged with other crimes. There we found that this information "might well have prejudiced [appellant] by predisposing the jurors to believe the accused guilty, thus, effectively stripping him of the presumption of innocence." McDaniel, supra at 23, 268 A.2d at 238. The same prejudice was present here, since the Commonwealth presented the jury with information indicating that appellant was charged with other crimes.
The prejudice to the defendant was further aggravated by the fact that the booklets listed other burglaries charged against co-defendant. Jurors are very likely influenced by the maxims of guilt by association and "birds of a feather flock together". Almost inevitably, appellant would be tarred with the same brush as the co-defendant. The intrusion into the trial of other alleged crimes raised issues to which appellant could not realistically present a defense. Clearly, appellant's association with the other charges ...