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decided: October 20, 1978.


No. 343 March Term, 1977, Appeal from the sentence of the Court of Common Pleas of Dauphin County, dated March 25, 1977, Nos. 2003 and 2004 C.D. 1976.


Arthur K. Dils, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files a dissenting statement. Hester, J., files a dissenting statement. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 259 Pa. Super. Page 295]

Appellant contends that the lower court erred in permitting the Commonwealth to present, in its case-in-chief, evidence of appellant's alleged involvement in other crimes. We agree and, therefore, vacate the judgment of sentence and remand for a new trial.

On August 11, 1976, Steelton police arrested appellant and charged him with conspiracy,*fn1 burglary,*fn2 and theft by receiving stolen property.*fn3 All charges arose out of the same transaction. On January 18, 1977, a jury trial commenced in the Dauphin County Court of Common Pleas. The Commonwealth presented the following testimony: Lether Monts, the victim, testified that at about 9:30 p. m., on August 5, 1976, he went to bed in an upstairs bedroom in his home. When he awoke in the morning he discovered that the ground level of his house was in disarray and several of his possessions were missing. The stolen items included: a portable television, binoculars, a wallet, a lawnmower, and several articles of clothing. Erick King, 17 years old at the time of trial, testified about his role in the burglary of Mr. Monts' home. King, who lives about four houses away from Monts, stated that at about 10 or 11 p. m., on August 5, 1976, appellant and another individual named Bo*fn4 came to his house and solicited his participation in a house burglary. King was acquainted with appellant through a neighborhood basketball clinic which appellant organized. King and Bo quickly detailed a plan while appellant relocated his car, a maroon Buick Electra, to an inconspicuous position. Appellant waited in his car while King and Bo broke into Monts' home and stole several items. After the burglary, the three divided the goods and then separated. Steelton police arrested

[ 259 Pa. Super. Page 296]

King on August 6, 1976, for the perpetration of this burglary. On cross-examination, King stated that on August 8, 1976, in response to a telephone call from appellant, he went to appellant's home where, in the presence of appellant and his wife, King wrote and signed a statement*fn5 completely exculpating appellant from any participation in the burglary. On redirect examination, King explained that he copied the statement from a paper prepared by appellant and that he did so upon appellant's suggestion that to do so would "clear" both of them.

Officer Deardorff of the Steelton Police arrested King. Because King implicated appellant in the burglary, police obtained and executed a search warrant for appellant's home. Appellant cooperated with the police and showed them a cardboard box containing a portable television and a tape player. The police seized those two items as well as two other televisions and several other articles. Over appellant's continuing objection, the Commonwealth presented two other witnesses who each identified one of the two other televisions as his own and stated that it had been stolen several months earlier.

In defense, appellant took the stand and testified that he has worked for Bethlehem Steel Corporation as an insurance investigator for ten years. He met Erick King when appellant organized a summer basketball program for youths in Steelton. King was a member of appellant's 1976 summer team but because of some problems, appellant told King that he could no longer participate in the youth program.

Appellant categorically denied any participation in the burglary. He explained that while preparing to go to work on the morning of August 6, 1976, he saw a tall cardboard box blocking his driveway. Because he was expecting a ride to work and because of the heavy rain that morning he brought the box into his garage. His wife, intending to put trash into the box, transported it into the kitchen. Appellant ...

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