Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 251-253 April Term, 1974. NO. 1866 OCTOBER TERM, 1975.
Maxine J. Stotland, Assistant District Attorney, Philadelphia, for appellant.
Donald C. Marino, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion, in which Jacobs and Spaeth, JJ., join.
[ 247 Pa. Super. Page 201]
On February 7, 1974, at approximately 2:30 A.M., a young lady, the prosecutrix in the case before us, left her apartment on South 47th Street in Philadelphia and walked to a store located at the corner of 49th Street and Chester Avenue. On the way back to her apartment, the prosecutrix was accosted by a man with an ice pick, taken into a garage in a nearby alleyway, and there raped and robbed. Two weeks later, the prosecutrix was at a police station when she spotted appellee Roy Patterson talking to a police officer. The prosecutrix immediately identified appellee as the man who had raped her. Appellee was charged with robbery, assault, and rape, was tried by a judge and jury, and on March 12, 1975 was found guilty as charged. Post-trial motions were filed and the lower court after hearing argument granted appellee's motion for a new trial. The case is before us on the Commonwealth's appeal from the Order of July 10, 1975 granting a new trial. The sole issue before us is whether the lower court abused its discretion in finding that testimony of a witness that she had been raped by appellee on February 12, 1974 (five days after the prosecutrix in the case before us had been raped) had improperly been admitted into evidence.
It is clear that, except under certain circumstances, in Pennsylvania evidence which discloses the commission of another crime cannot be introduced against a defendant who is being tried for a separate and distinct crime. Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). The reason for this, of course, is that a person must not be found guilty of one crime merely because he is known to have committed other crimes. Evidence of other crimes is admissible, however, when it tends to prove: (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme, plan, or design, or (5) the identity of the person who
[ 247 Pa. Super. Page 202]
committed the crime. Commonwealth v. Peterson, 453 Pa. 187, 197, 307 A.2d 264 (1973). In the case before us, the prosecutrix was accosted at approximately the same time of night as the other rape victim, the two crimes were only five days apart and occurred in the same two-block area, and the attacker of both women wore sunglasses even though it was nighttime. The prosecutrix was taken into a garage in an alley; the other victim was being taken into an alley at gunpoint when she managed to talk her assailant into taking her indoors. The only appreciable difference between the two crimes was that the prosecutrix was threatened with an ice pick and the second victim was threatened with a gun. Both victims had ample opportunity to observe their assailants, and both positively identified appellee. As was noted in Commonwealth v. Fortune, 464 Pa. 367, 373, 346 A.2d 783 (1975) and Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334 (1955), evidence of other crimes will be admissible when there is such a logical connection between the crimes that proof that the accused committed the other crime or crimes will naturally tend to show that the accused was the person who committed the crime for which he was currently being tried. We find in the case before us the requisite "logical connection" between the two crimes, and we hold that the testimony of the second witness was properly admitted for the purpose of proving the identity of the man who raped the prosecutrix. We therefore hold that the lower court abused its discretion in granting appellee's post trial motions and ordering a new trial.
Reversed and remanded for consideration of appellee's remaining post trial motions.
HOFFMAN, Judge (dissenting):
I dissent because I believe that the lower court did not abuse its discretion in ...