No. 174 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Sect., Phila. County, on Nos. 518/520 Oct. Term, 1975.
Neil Leibman, Philadelphia, for appellant.
Robert W. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone and Price, JJ., concur in the result. This decision was reached prior to the retirement of Jacobs, former President Judge. Hoffman, J., did not participate in the consideration or decision in this case.
[ 262 Pa. Super. Page 593]
This appeal arises from judgment of sentence imposed upon appellant's conviction for robbery. Appellant makes three arguments for discharge, or in the alternative, a new trial.
Appellant first argues that the lower court erred in admitting evidence of his prior criminal conduct.
Appellant was charged with the robbery of the Fern Bar in Philadelphia on April 21, 1975, about 9:30 p. m. At trial, the bartender, Clinton Harrison, described the robbery as follows. Appellant entered the bar and ordered two Rolling Rock beers. After ordering the second beer, appellant pulled a gun on Harrison and demanded the money in the cash register. Harrison at first brought appellant only the paper money, but when appellant ordered him to go back and "bring it all," Harrison gave him the change as well. Appellant had warned Harrison that if he did not give him everything, appellant would kill him. After getting the money, appellant left the bar. The Commonwealth introduced a gun, which Harrison identified as the gun appellant used during the robbery.
[ 262 Pa. Super. Page 594]
After Harrison completed his testimony, the Commonwealth called Joseph Kryston, the bartender of the R&F Tavern, located approximately four blocks from the Fern Bar. Kryston testified as follows. On August 24, 1975, three days after the robbery of the Fern Bar, appellant entered his bar at 7:00 p. m. and ordered a Rolling Rock beer. Appellant left the bar after drinking the beer, but two and a half hours later he returned and ordered another Rolling Rock. While appellant was drinking the beer, he pulled a gun on Kryston and threatened to kill him if he did not give him money. When Kryston brought appellant the paper money from one of the bar's two cash registers, appellant demanded the change in that register, as well as the money in the other register. After Kryston gave him this money, appellant left. Within three to five minutes after leaving the bar, appellant was apprehended by the police and was identified by Kryston at the scene of the crime. Kryston identified the gun identified by Harrison as the gun appellant had used on him.
The Commonwealth justifies the introduction of Kryston's testimony on the ground that the robberies of the two bars showed a common scheme, and that proof of appellant's commission of the second robbery therefore tended to prove his commission of the first.
The law is clear that as a general rule the Commonwealth may not introduce evidence of distinct crimes against a defendant in a prosecution for a separate offense. Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978); Commonwealth v. Terry, 462 Pa. 595, 342 A.2d 92 (1975); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973) (plurality opinion); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). This limitation on the Commonwealth's proof springs from the recognition that proof "that a person has committed one offense is not proof that he has committed ...