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COMMONWEALTH PENNSYLVANIA v. EDWARD DAVENPORT (04/20/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: April 20, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
EDWARD DAVENPORT, APPELLANT

No. 1016 Octobre Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1743, 1744 October Term, 1978

COUNSEL

William P. James, Philadelphia, for appellant.

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

Brosky, Hoffman and Cirillo, JJ.*fn*

Author: Brosky

[ 286 Pa. Super. Page 214]

Appellant was convicted at trial without a jury of aggravated assault, criminal conspiracy and robbery on the highway. All appellant's post-verdict motions were denied with the exception of a motion in arrest of judgment on the aggravated assault conviction. Appellant was given a suspended sentence on the conspiracy conviction and three years probation on the robbery count. This appeal followed. The sole contention on appeal is that the lower court improperly admitted evidence of "prior crimes" by the appellant and thereby deprived him of a fair trial. We affirm the lower court's actions.

The facts surrounding appellant's conviction are as follows. On October 20, 1978, at approximately 10:30 p. m., Officer William James of the Philadelphia Police Department was patrolling in an unmarked police car when he observed Thomas Davis walking east on Allegheny Avenue toward 13th Street. Officer James further observed three black males emerge from a parking lot a short distance behind Davis, proceed to follow and converge on Davis, and knock him to the ground. At this point, Officer James and his partner interceded, apprehending appellant as he stood over an unconscious and bleeding Davis. The other two men with appellant attempted to leave when they saw the officers approaching but were arrested by Officer James' partner.

At the appellant's preliminary hearing and trial, Thomas Davis testified that on October 20, 1978, he entered a bar on the corner of 13th Street and Allegheny Avenue, where he drank one beer and went to the men's room. While Davis was in the men's room, three men, including appellant, entered and demanded money from him. While two men held the victim's arms, the third rifled his pockets and socks and relieved him of $22. Mr. Davis testified that his only recollection thereafter was waking up in Temple University Hospital.

Appellant was subsequently arrested and charged with aggravated assault, criminal conspiracy and robbery. At the

[ 286 Pa. Super. Page 215]

    preliminary hearing, Officer James and Thomas Davis testified. The trial court denied appellant's pre-trial motion to quash the informations, instead ordering the robbery information amended to read robbery "on the highway." Appellant's contention on appeal is that he was only charged with the robbery on the highway that Officer James witnessed and not with the robbery in the bar that Thomas Davis remembered. Therefore, the testimony of Davis was inadmissible because it related to a prior crime for which appellant was not now standing trial. See Commonwealth v. Harris, 263 Pa. Super. 110, 397 A.2d 424 (1979); Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978). We disagree.

Appellant contends that there are two separate and distinct criminal acts involved in this case. It would not have taxed the imagination of the fact finder, however, to conclude that the testimony of Officer James and Thomas Davis chronologically complemented each other and that what was involved sub judice was one continuing crime beginning sometime after 9:50 p. m. in a bar and ending a very short time later on the street less than one block away. Thus, the trial court could have properly inferred that the testimony of Thomas Davis was not of a prior crime committed by appellant but related to the same transaction out of which grew the indicted crime. As has been stated by our Supreme Court:

While it is true that generally evidence of crimes other than the one for which the defendant is being tried is not admissible, there are certain well-defined exceptions to that rule. Among these is the "same transaction" or "res gestae" exception. McCormick, Evidence, ยง 190 at 448 (2d ed. 1972). In Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932), this Court spelled out that exception, saying that such evidence is admissible where "such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts." Id., 307 Pa. at 148, 160 A. at 607. See also

[ 286 Pa. Super. Page 216]

We, therefore, hold that the prejudicial effect of any inference alleging prior criminal activity by appellant was unfounded.


*fn* Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.


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