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decided: September 27, 1976.


Appeal from the Order and Sentence of the Court of Common Pleas, Criminal Division, of Wayne County, to No. 73 June Term, 1973. No. 872 October Term, 1976.


William C. Costopoulos, Lemoyne, Richard D. Ballou, Honesdale, for appellant.

Nicholas A. Barna, Stephen G. Bresset, Honesdale, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Van der Voort and Spaeth, JJ. Price, J., did not participate in the consideration or decision of this case. Watkins, President Judge, and Van der Voort, J., dissent.

Author: Hoffman

[ 243 Pa. Super. Page 210]

Appellant was convicted by a jury on June 27, 1974, of forcible anal sodomy*fn1 on Robert M. sometime during December, 1968. He appeals from the judgment of sentence on the ground that the trial court impermissibly

[ 243 Pa. Super. Page 211]

    allowed the introduction into evidence of other acts of sodomy allegedly committed by appellant on Robert M. and on other persons on occasions prior to, and subsequent to, the date of the crime charged in the indictment. We agree with this contention, and we reverse the judgment of sentence.

On August 21, 1973, appellant was arrested and charged with having committed forcible anal sodomy on Robert M. during December, 1968. At the time of the alleged crime, appellant was a member of the supervisory staff of Hillcrest School, an institution for mentally retarded children, and the victim was a thirteen-year-old resident of that school. At trial, Robert M. testified that appellant engaged in forcible anal sodomy on his person in December, 1968. The victim also testified that appellant committed forcible acts of oral and anal sodomy on his person at least once every two weeks for a period of one year prior to the December, 1968 incident. The Commonwealth then called four other witnesses who were former residents of the Hillcrest School to testify about involuntary deviate sexual acts they had witnessed appellant commit. John E. testified that between 1965 and 1971, the appellant committed forcible acts of anal intercourse on his person on four separate occasions. Theodore J. testified that on one occasion he observed the defendant performing anal intercourse on John E. Carl H. testified that he saw appellant commit anal sodomy on Grant B. and force Robert M. to commit oral sodomy on appellant. Carl H. also testified that appellant forced him to perform oral sodomy five or six times. Neither Theodore J. nor Carl H. were able to provide dates for the alleged incidents. Finally, McKinley J. testified that he observed defendant perform anal intercourse on Robert M. in 1962. Because appellant did not begin his job at Hillcrest until early 1966, the date of the alleged occurrence witnessed by McKinley J. is also unclear. An outer time limit, however, can be established

[ 243 Pa. Super. Page 212]

    because McKinley J. testified that he left Hillcrest in 1967. In sum, all of the alleged acts occurred sometime between the beginning of 1966 and 1971, but no specific dates can be pinpointed.

"One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant." Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). See also Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Boulden, 179 Pa. Super. 328, 116 A.2d 867 (1955); See, generally, McCormick on Evidence, ยง 190 at 447-454 (2nd Ed. 1972). Special circumstances justifying exceptions to the general rule exist when the evidence of other crimes "tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) 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 of one will naturally tend to show that the accused is the person who committed the other." Commonwealth v. Peterson, supra, 453 Pa. at 197-198, 307 A.2d 269. See also Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); Commonwealth v. Boulden, supra.

The lower court allowed the introduction of the testimony on the theory that it helped to show a common scheme, plan or ...

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