Nos. 67 and 78 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, as of Nos. 607, 608 and 609 September Sessions, 1974.
Arthur G. Nassau, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Jane Greenspan, Philadelphia, for appellee.
O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., and Pomeroy, former J., did not participate in the consideration or decision of this case. Nix and Larsen, JJ., dissent.
On May 27, 1975, a jury convicted appellant of murder of the first degree for the July 29, 1974, killing of Timothy Shinn in Philadelphia. The jury also found appellant guilty of possession of an instrument of crime. Post-trial motions were denied. Appellant was sentenced to life imprisonment on the murder conviction and a five-year period of probation on the possession conviction to be served consecutively. This direct appeal followed.*fn1
Appellant contends that the trial court erred in admitting into evidence testimony of prior criminal acts occurring on the day before the killing.*fn2 We hold that the evidence of prior criminal acts should not have been admitted and we therefore reverse and remand for a new trial.
Appellant was first brought to trial for the murder of Timothy Shinn on February 5, 1975. During that proceeding, the Commonwealth attempted to introduce evidence of prior criminal acts and the court declared a mistrial. Upon retrial before another judge, the Commonwealth succeeded in introducing the very same evidence of prior crimes. That trial led to appellant's convictions.
The prior criminal acts at issue involved two separate incidents occurring on July 28, 1974. The first incident took place in the afternoon while appellant was piloting a pleasure boat. Appellant was towing his sister-in-law on water skis when another boat crossed the tow line causing his sister-in-law to fall. Appellant drew out a .38 caliber automatic pistol and aimed it at the operator of the passing craft. Appellant's brother took the gun away from him and returned it later in the day.
The second incident took place a few hours later at about 8:00 p. m. Appellant's girlfriend, Anita Green, testified that appellant told her that on his way to her home another car "tried to cut him out in the traffic" and that the driver shouted at him. She testified further that appellant said he pulled out his gun. Ms. Green also stated that appellant told her that the other driver was "lucky the safety mechanism was on because he felt like blowing [his] head off."
The Commonwealth's other evidence reveals that at 9:00 p. m. appellant and Anita Green were at the home of appellant's brother Richard. Appellant and his brother argued about appellant's drinking, his "bad nerves," and about the gun he was carrying. Richard would not permit the weapon to remain in the house and so Anita put the gun in a paper bag and placed it under the front seat of ...