Appeal from order of Superior Court, Oct. T., 1969, No. 902, affirming order of Court of Common Pleas of Montgomery County, June T., 1960, No. 320, in case of Commonwealth of Pennsylvania v. Jesse W. Wilson.
Harry L. Green, Jr., Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, Executive Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien.
Appellant was sentenced in 1960 to imprisonment for a term of not less than five and not more than fifteen years after his conviction by a jury on a charge of arson. Subsequent to the verdict, a new trial motion was filed, but no appeal was taken from the judgment of sentence. In 1969, appellant filed a Post Conviction Hearing Act petition, as a result of which he
was granted leave to appeal nunc pro tunc. His appeal to the Superior Court resulted in an affirmance of the judgment of sentence by a divided court. Two of the dissenters in the Superior Court expressed the view that a new trial was required because of (1) the introduction of evidence of other crimes; (2) the introduction of evidence concerning another fire; and (3) allowing a police officer to testify as to appellant's sanity. The third dissenter agreed with the other two as to the impropriety of the introduction of evidence of other crimes. We granted allocatur and now we reverse.
The case involved the alleged arson by appellant of his former mother-in-law's home. On the day of the arson charged to appellant, a barn owned by the grandfather of appellant's former wife was burned. Nine Commonwealth witnesses testified that appellant had been observed near that fire. The Commonwealth seeks to justify the introduction of that testimony under the rule that evidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or to establish the identity of the person charged with the commission of the crime on trial.
We stated this rule in Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955), as follows: "But it is also true that sometimes there exist the 'special circumstances' which operate as exceptions to the general rule, and bring the case within the equally well established principle that evidence of other crimes is [emphasis in original] admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or to establish the identity of the person charged with the commission
of the crime on trial, -- in other words where there is such a logical connection between the crimes that proof [emphasis supplied] of one will naturally tend to show that the accused is the person who committed the other. A veritable multitude of authorities in our appellate courts enunciate, albeit in varying language, this familiar principle."
That rule, as stated in Wable, is perfectly good law, but it is simply not applicable to the instant case. There is no proof that appellant set fire to the grandfather's barn. There was no evidence that the fire at the grandfather's barn was incendiary in origin, nor was there any testimony that defendant had in any way had a hand in starting that fire, nor was he ever accused of it. The ...