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COMMONWEALTH v. ALLEN (03/24/72)

decided: March 24, 1972.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Fayette County, No. 32 of 1970, in case of Commonwealth of Pennsylvania v. William E. Allen.

COUNSEL

Arnold W. Hirsch, for appellant.

No oral argument was made nor brief submitted for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Watkins, J. Wright, P. J., would affirm the judgment below.

Author: Watkins

[ 220 Pa. Super. Page 404]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Fayette County after conviction of the defendant, William E. Allen, of armed robbery; and from the refusal of the post-trial motion for a new trial and in arrest of judgment.

The case arises out of an armed robbery of the Kroger Store Uniontown, Pennsylvania. Five witnesses testified that an armed robber entered the store and committed the crime. The manager of the store, who was accosted by the robber, failed to identify him but the other four witnesses did identify him. The appellant complains that one of the witnesses testified to seeing him commit an entirely different burglary. The trial court erred in refusing to declare a mistrial after this witness for the Commonwealth stated on direct examination that the defendant had been observed by the witness committing another unrelated robbery at another

[ 220 Pa. Super. Page 405]

    time. The witness stated that he had seen the defendant when he robbed the store another time. The defendant did have another case pending against him for robbery and subsequently he was tried and acquitted of that charge.

Evidence of a different crime, except under special circumstances, cannot be given against the defendant on trial for another crime because the fact of the commission of one offense is no proof of the commission of another. Commonwealth v. Jenkins, 442 Pa. 588, 277 A.2d 356 (1971). See also, Commonwealth v. Rivers, 218 Pa. Superior Ct. 184, 279 A.2d 766 (1971); and Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A.2d 171 (1967).

It is the well established common law that in criminal cases proof which tends to show the accused is guilty of the commission of other crimes is not competent and inadmissible for the showing of the commission of the particular crime charged. Commonwealth v. Trowery, supra.

We cannot see the special circumstances present in this case. The testimony was not offered to prove common scheme, plan or design embracing the commission of the two burglaries. The witness had already identified the defendant as the one who had committed the crime charged so there was no need to establish his identity by testimony concerning the second burglary.

We also agree with the defendant that the court erred in refusing to allow the defendant the use of the police investigative report for cross-examination purposes. The prosecuting officer was on the stand and had used the report to refresh his recollection. He stated that it contained his interviews of the various clerks in the store who had testified for the Commonwealth. Commonwealth v. ...


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