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COMMONWEALTH PENNSYLVANIA v. ROBERT KJERSGAARD (03/14/80)

filed: March 14, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT KJERSGAARD, APPELLANT



No. 792 October Term, 1978, Appeal from Judgment of Sentence entered by the Court of Common Pleas, Philadelphia County, Criminal Division, September Term, 1976, No. 246, 247 entered January 12, 1978

COUNSEL

Nino V. Tinari, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Gates*fn* and Dowling,*fn* JJ. Gates, J., files a dissenting opinion.

Author: Dowling

[ 276 Pa. Super. Page 370]

Defendant's principle exception to the judgment of sentence imposed following his conviction of rape*fn1 and corruption of minors*fn2 is the propriety of admitting evidence of a prior offense.

"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 the 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

[ 276 Pa. Super. Page 371]

    logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. See, Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value. Commonwealth v. Peterson, 453 Pa. 187, 197, 198, 307 A.2d 264, 269 (1973).

While this may be Hornbook law and is easily formulated, its application has plagued the courts. The decisions are rather numerous, the reasoning usually articulate, but the conclusions frequently divided. The problem would appear to be that the so-called special circumstances are of an unusually subjective nature and invite more than normally one's own philosophical approach to criminal justice. A resolvement of whether in a particular case the exceptions or the general rule should prevail intrudes upon such basic concepts as the nature of a trial: whether it is really a search for truth and whether substantial justice should prevail over a perfect trial.

The facts established through the jury's imprimatur of guilty are these: the victim, a 16 year old girl, newly arrived in Philadelphia needing directions approached appellant on a Center City sidewalk. He inquired if she was looking for employment and learning that she was, offered to introduce her to an elderly neighbor in need of someone to care for her. The young girl agreed to accompany the 35 year old defendant to the lady's home, but when they arrived at where he stated that she lived, he said that he would first have to visit his own apartment across the street to pick up something and telephone the prospective employer. Having lured the girl into his apartment, the defendant began a discussion of sexual activities of girls in the neighborhood. He said that fifteen other young women had been murdered because they had refused his orders to undress. Growing apprehensive she attempted to leave, but the defendant blocked the path to the door, removed a pair of scissors from his pocket and threatened to kill her if she didn't undress.

[ 276 Pa. Super. Page 372]

When she refused, he pressed the blade to her throat, forced her to remove her clothing and thereafter committed several acts of rape. He advised her that he would kill her if she screamed and if she did so, a number of other men would come who would also rape her. He finally allowed her to dress and leave in a cab whereupon she drove to the police station and immediately reported the rape. The officers, based on her description, were able to locate the defendant's apartment where they seized a pair of scissors and arranged for a stakeout. Three days later the defendant was arrested upon his return to the apartment from New York where he fled following the crime. Shortly after his arrest, the defendant made a full confession corroborating the victim's account in all material respects. He also identified the pair of scissors taken by the police from his apartment as those used to threaten the girl.

To rebut the defendant's contention that the girl had consented to intercourse after voluntarily accompanying the defendant to his apartment, the Commonwealth produced evidence that less than two (2) months before his arrest, the defendant had raped a 14 year old girl in St. Petersburg, Florida. There were many similarities in the two crimes. The defendant told this victim that a neighbor was interested in purchasing a bicycle that she wished to sell and lured her to his apartment ostensibly to visit the neighbor. He bolted the door, drew a switchblade knife, pressed it to her throat and demanded that she undress. He then raped her repeatedly during the course of the afternoon and evening threatening to kill her if she screamed. He allowed her to leave the next morning whereupon she immediately notified the police and directed them to the defendant's apartment which was unoccupied by the time that they arrived. At the trial, the girl identified the defendant as her assailant. She had also given the police a detailed physical description of him at the time of the rapes including numerous distinctive tattoos on his arms.

The Commonwealth contended and the trial court agreed that evidence of this prior offense was admissible to show a

[ 276 Pa. Super. Page 373]

    common scheme, plan or design and to negate the defense of consent. There are significant similarities between the two offenses. They both followed a chance meeting in a public place with young girls who responded to an offer of assistance and were lured to an apartment where they were prevented from leaving. In each case he pressed a sharp blade to their throat, ordered them to disrobe, threatening that if they screamed, he would kill them. In contrast to the viciousness of the assaults, he eventually allowed them to leave and immediately upon their departure, fled the scene.

Defense argues that the distance between the two crimes and the interval of time prohibited the admissibility of the prior incident. In Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977), Justice Roberts, quoting Professor Wigmore, stated that the length of time must depend largely on the circumstances of each case and always to be left to the discretion of the trial court. The fact that the other crime occurred in a jurisdiction other than that where the instant offense occurred, does not render evidence of such other crime inadmissible. Wharton's Criminal Evidence ยง 250, p. 573. Defendant's reliance upon Commonwealth v. Boulden, 179 Pa. Super. 328, 116 A.2d 867 (1955), and Commonwealth v. Bradley, 243 Pa. Super. 208, 364 A.2d 944 (1976) is misplaced. In those cases, evidence of other crimes (preceding the charged offense by one and six years, respectively) was admitted not to show the similarity of the appellants' modus operandi, but rather to suggest that the appellants engaged in single schemes of which the individual crimes revealed their aberrational mental and moral nature. Because in each case the ...


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