No. 465 October Term 1977, On Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Div., Criminal Sect. of Phila. County at Nos. 1504-1507, April Term 1975.
Timothy J. Savage, Philadelphia, for appellant.
Michael R. Stiles, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Price, J., dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 315]
This appeal is from judgments of sentence on convictions of robbery, aggravated assault, possession of an instrument of crime, possession of a prohibited offensive weapon, and carrying a firearm without a license.*fn1
The Commonwealth's evidence was as follows. On March 13, 1975, appellant entered a bar in Philadelphia, approached the bartender, who was behind the counter, pointed a gun at him, and demanded money from the cash register. The bar's owner, Clifford Howell, was seated at a booth nearby. Seeing the bartender empty cash from the register, he went over to the counter and saw that appellant had a gun. A struggle ensued; appellant's gun clicked two or three times but did not go off. Howell wrested the gun from appellant, beat appellant on the head with it, and ran to call the police. Appellant jumped up and ran to the door. Howell then got his own gun and shot appellant in the buttocks. Appellant was apprehended a few blocks away and was identified immediately by Howell, who testified that he knew appellant from around the neighborhood and that appellant had been in the bar before.
Appellant testified as follows. He entered the bar without a weapon and spoke to the bartender, who was to pay him off for a numbers bet. When the bartender was unable to make the payment, an argument ensued. Appellant went to the door to leave but was shot without provocation by Howell. Two eyewitnesses, patrons in the bar and friends of appellant's, corroborated this testimony.
Appellant makes various arguments for a new trial or discharge. We consider only one, which we find requires a new trial.*fn2
[ 261 Pa. Super. Page 316]
The Commonwealth introduced evidence, over appellant's objection, that about a month before the robbery appellant and another man had come into the bar and had told Howell that he would have to donate $20 a week to the Muslim Temple Organization, Chapter Twelve; that Howell understood this to be a threat; and that on the basis of this incident Howell filed extortion charges against appellant, which were unresolved at the time of trial. Counsel stipulated that investigation had shown that appellant was in no way connected with the Muslim Temple Organization.
It is black letter law that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. See Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it 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 ...