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decided: July 12, 1978.


No. 358 October Term, 1977, Appeals from the Judgments of Sentence Imposed October 28, 1976, by the Lehigh County Court of Common Pleas, Nos. 1263, 1264, 1268, 1271, 1274, 1275, 1276, of 1975, Criminal Division.


Thomas F. Traud, Jr., Ronald E. Corkery, Allentown, with them William H. Platt, for appellant.

Scott Oberholtzer, Assistant District Attorney, Allentown, with him Stuart T. Shmooker, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Cercone and Spaeth, JJ., join in this opinion. Van der Voort, J., filed a dissenting opinion, in which Price, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 256 Pa. Super. Page 440]

Appellant contends that the lower court improperly permitted the introduction of evidence of crimes unrelated to those listed in the indictments. We agree and, therefore, would grant appellant a new trial.*fn1

On March 7, 1975, appellant was arrested on multiple charges of possessing and delivering marijuana.*fn2 The indictments

[ 256 Pa. Super. Page 441]

    filed by the Commonwealth specified that appellant sold drugs to a high school student on a number of designated occasions ranging from about November 30, 1974, to about January 1, 1975. At a jury trial on September 19 and 21, 1975, the Commonwealth's primary witness, a sixteen year old boy, testified as follows: appellant and he consummated a series of marijuana transactions from the end of October, 1974, through January, 1975, at Dempsey's Diner in Allentown, Lehigh County. Appellant would drive to these meetings in a white Datsum station wagon; some exchanges occurred inside this station wagon. The witness admitted that he had recently pleaded guilty to selling drugs to his high school classmates.

Appellant testified that he never sold his accuser marijuana, despite the boy's repeated offers to buy from October, 1974, through January, 1975. He admitted meeting the sixteen year old boy at Dempsey's Diner on one occasion on October, 1974, but stated that all other conversations from this date through January, 1975, occurred over the telephone. He also testified that he had been at his parent's home watching television on two of the particular dates named in the indictments and bill of particulars. Finally, he testified that the white Datsun station wagon had been in a repair shop from October 31, 1974, to January 14, 1975.*fn3

On cross-examination, the prosecutor, over objections, asked appellant if, in December, 1973, or January, 1974, he had offered to sell marijuana to a courtroom spectator, one Donald Batz. Appellee denied that he had ever met Batz before. The Commonwealth subsequently called Batz on rebuttal; in an offer of proof, the prosecutor asserted that appellant had offered to sell Batz marijuana in March, 1974. Appellant's counsel objected because such testimony would be remote and would contravene the rule against introducing evidence of "other crimes." The prosecutor responded that he did not seek to introduce the evidence as an exception to the "other crimes" rule; instead, he argued that the evidence impugned appellant's credibility because appellant

[ 256 Pa. Super. Page 442]

    had not objected to the initial inquiry as to previous offers to sell and had denied making any such offers.*fn4 The lower court overruled the objection, and Batz testified that he was an undercover narcotics agent and that in the second week of March, 1974, appellant, while working at the Dixon Street Saloon in Allentown, offered to sell him a pound of marijuana for $425. Because of the steep price, negotiations collapsed. On September 21, 1975, the jury convicted appellant of all charges, and on October 28, 1976, after denying post-verdict motions, the lower court imposed a five to ten year term of imprisonment. This appeal followed.

Appellant contends that the Commonwealth's cross-examination and Batz's rebuttal testimony improperly introduced "other crimes" evidence. In Commonwealth v. Bradley, 243 Pa. Super. 208, 212, 364 A.2d 944, 945-46 (1976), our Court recently reiterated the rule against introduction of evidence of other crimes allegedly perpetrated by a defendant: "'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

[ 256 Pa. Super. Page 443]

    others; or (5) to establish the identity*fn5 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."*fn6

In the instant case, we believe that none of the traditional exceptions to the "other crimes" rule applies and that evidence of appellant's alleged offer to sell marijuana to narcotics agent Batz should have been excluded. The 8 1/2 month hiatus between the alleged offer to sell and the first of the sales charged in the indictment dispels any claim that the distinct transactions were all part of a continuing scheme, plan, or conspiracy. Commonwealth v. Fortune, supra. The Commonwealth makes no attempt to demonstrate that the offer to sell and the actual sales involved a modus operandi so unique as to be tantamount to appellant's signature; rather, these alleged crimes have no distinctive elements

[ 256 Pa. Super. Page 444]

    separating them from ordinary drug transactions and locking them together into a chain. Commonwealth v. Fortune, supra; McCormick, supra at 449. While the Commonwealth asserts that Batz's testimony demonstrated appellant's awareness of the substance of marijuana and thus negated a defense predicated on mistake, accident, or lack of intent to sell a controlled substance, appellant freely admitted smoking marijuana on occasion and did not base his defense in any way on mistake or entrapment. Finally, the Commonwealth asserts that the alleged prior offer establishes that monetary gain motivated the sales charged in the indictments. However, in Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214, 218-19 (1976), our Supreme Court stated that "evidence of a distinct crime, even if relevant to motive, 'must give sufficient ground to believe that the crime currently being considered grew out of or was in any way caused by the prior set of facts and circumstances.'" See also Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971). Here, while monetary gain may have been a common motive between the alleged prior offer to sell and the subsequent alleged sales, there is no causal connection between the two crimes and the occurrence of the first crime sheds no light on why or how the subsequent crimes charged occurred. In short, the alleged March, 1974 offer to sell does not assist the jury in its determination of whether the Commonwealth has proven the elements of the crime of selling marijuana between November 30, 1974, and January, 1975. The only relevance of the prior offer is "to ground the [impermissible] inference that accused is a bad man and hence probably committed this crime." McCormick, supra at 453. See also Commonwealth v. Bradley, supra.

Even if one of the traditional exceptions could be invoked, we would still hold that the lower court abused it discretion in admitting evidence of the alleged prior offer to sell marijuana. In McCormick, supra, the commentator chastises judges who end all inquiry once they decide whether or not a particular exception to the "other crimes" rule applies. The commentator warns that this practice of "pigeonholing"

[ 256 Pa. Super. Page 445]

    may cause trial and appellate judges to ". . . lose sight of the underlying policy of protecting the accused against unfair prejudice. The policy may evaporate through the interstices of the classification." McCormick, supra, at 453. Accordingly the commentator recommends that courts balance ". . . on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, and the strength or weakness of their other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility. [supra] at 453." In Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186, 191 n. 11 (1977), our Supreme Court recently endorsed the application of this balancing process, even though the Commonwealth had established the independent relevancy of the "other crimes" evidence through application of the traditional exceptions. See also Commonwealth v. Patterson, supra. (Dissenting Opinion of HOFFMAN, J.); Commonwealth v. Bradley, supra. Thus, even assuming independent relevancy under a traditional exception, we should still determine if the policies behind the "other crimes" rule mandate exclusion of evidence of the alleged prior offer to sell marijuana.

In the instant case, we believe that the balancing process operates to exclude evidence of the March, 1974 offer to sell. First, the Commonwealth has little need to produce evidence of the prior offer to sell because it can rely upon the direct testimony of a participant in the charged drug transactions to inculpate appellant. Commonwealth v. Bruno, 215 Pa. Super. 407, 258 A.2d 666 (1969). Second, the evidence that the accused actually attempted to sell marijuana to undercover agent Batz is weak; the Commonwealth did not secure a conviction or even arrest appellant on this charge. Commonwealth v. Bradley, supra. Third, the 8 1/2 month gap ...

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