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COMMONWEALTH PENNSYLVANIA v. CECIL DAVID BARNHART (08/28/81)

filed: August 28, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
CECIL DAVID BARNHART, APPELLANT



No. 213 Pittsburgh, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Fayette County, No. 235 of 1979.

COUNSEL

Alphonse P. Lepore, Jr., Uniontown, for appellant.

Gerard R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.

Cercone, President Judge, and Shertz and Wieand, JJ. Shertz, J., files a concurring opinion.

Author: Wieand

[ 290 Pa. Super. Page 184]

Cecil David Barnhart was tried by jury and was convicted of burglary*fn1 and criminal conspiracy.*fn2 After post trial motions had been denied and sentence imposed, Barnhart appealed on the grounds that (1) the verdict was against the weight of the evidence and (2) that the trial court erred in denying a defense motion for mistrial when a co-conspirator, testifying as a Commonwealth witness, mentioned other burglaries committed earlier during the same evening. We disagree and affirm the judgment of sentence.

[ 290 Pa. Super. Page 185]

Roy Paul Warman, an admitted accomplice, testified that on the evening of December 27, 1978, he, Marty Cole and the appellant, Cecil Barnhart, had agreed to burglarize a Gas and Go station in Normalville, Fayette County. Appellant was the driver. While he remained in his car, Warman and Cole entered the gas station and removed money, cigarettes, a telephone and a set of torches. These were placed in the trunk of appellant's car whereupon the three men drove away. Warman could not recall how the stolen items were distributed.

It has long been the law of this Commonwealth that the uncorroborated testimony of an accomplice is sufficient to convict a defendant. Commonwealth v. Bradley, 449 Pa. 19, 21, 295 A.2d 842, 844 (1972). See also: Commonwealth v. Bruno, 316 Pa. 394, 402, 175 A. 518, 521 (1934); Commonwealth v. Richbourg, 263 Pa. Super. 494, 398 A.2d 685 (1979); Commonwealth v. Ridgely, 243 Pa. Super. 397, 365 A.2d 1283 (1976). Before a court will award a new trial on the ground that the verdict was against the weight of the evidence, it must appear from the record that the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make the award of a new trial imperative, so that right may be given another opportunity to prevail. Lupi v. Keenan, 396 Pa. 6, 8, 151 A.2d 447, 449 (1959). This is not such a case. The court below properly refused to find the verdict contrary to the weight of the evidence.

During Warman's direct examination, he was asked if he and his co-conspirators had discussed the burglary at the Gas and Go prior to its occurrence. The witness responded, "No, there was prior burglaries -- it was just on our way back." Appellant's counsel moved for a mistrial, which was denied. On appeal, he contends that this was error.

This testimony clearly implicates appellant in other, unspecified burglaries committed shortly prior to the one giving rise to the charges for which he was being tried. It suggests that while appellant and his co-conspirators were returning from the commission of other burglaries, they discussed and then decided to enter the Gas and Go service station.

[ 290 Pa. Super. Page 186]

As a general rule, evidence of other, distinct crimes is inadmissible because the commission of one crime is not proof of the commission of another and because of the prejudice caused to the defendant by such evidence. Commonwealth v. Fortune, 464 Pa. 367, 372-73, 346 A.2d 783, 786 (1975); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973); Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). However, special circumstances justifying exceptions to the general rule exist when evidence of other crimes tends to prove (1) motive; (2) scienter or intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related that proof of one tends to prove the other as well; and (5) to establish the identity of the person charged with the commission of the offense. Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269 (1973); Commonwealth v. Boulden, 179 Pa. Super. 328, 116 A.2d 867 (1955). Recent decisions of this Court have added an additional consideration. Thus, even if a particular exception to the general rule is ...


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