No. 615 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Div., Phila. County at Nos. 342-401 March Term 1979.
James F. McBride, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Hoffman, JJ.
[ 289 Pa. Super. Page 535]
This is an appeal from nineteen separate judgments of sentence for robbery. Appellant, assigning several trial errors, asks for a new trial. We have concluded, however, that he had a fair trial, and therefore affirm.
On a motion for new trial we must regard the evidence in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Strube, 274 Pa. Super. 199, 418 A.2d 365 (1979) cert. denied, Strube v. Pennsylvania, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980). So regarded, the evidence may be summarized as follows.
During the fall of 1976 appellant approached John Segal, who was about 90 years old and a proprietor of a sweater shop in the Kensington section of Philadelphia, and asked for ten dollars to help him support his "habit." Feeling sorry for appellant, Segal gave him money to "help him out." N.T. 164. Appellant returned again and again, requesting ever increasing amounts of money. At first appellant only appealed to Segal's sense of charity. Later he made promises of repayment and gave assurances that he would ask nothing more. Finally, beginning in the summer of 1978, he threatened Segal with violence. In September 1978 Segal became ill and entered a hospital; he was not released until late November.
While Segal was hospitalized appellant called St. Stephen's Church in Philadelphia. When his call was answered by the Church's telephone answering machine, he left the following message:
Today I will be down to your church. I found out how much money you got in your bank account. I want you to write me out a check for eight hundred fifty dollars. I
[ 289 Pa. Super. Page 536]
need it for my personal needs, to get back on my feet, because I was just out of jail, and I will really appreciate it if you put ten dollars to get by for today. And you better have it or else I'm going to blow your church right up, so help me God. You understand that? I will do that. I found out how much money you got, so you can come up with a check for --. That is all I got to say. I'll be down a little later. Do it. You better have it or else there is going to be trouble. See you.
Appellant later confronted Reverend Hendricks, the Rector of St. Stephens, and threatened to "blow-up" the church unless he was given $850. N.T. 253-55. Reverend Hendricks refused to give appellant any money and instead reported the incident to the police. N.T. 258.
After Segal was released from the hospital, appellant resumed his demands for money. He threatened to kill Segal, and to "blow your home up with you in it." N.T. 173-74. He also displayed a gun to Segal, and threw a brick through his shop window saying, "You see how easy it is to get money from you." N.T. 175.
Throughout December 1978 and January 1979 appellant came to Segal's shop and took Segal's proceeds for the day. N.T. 171, 177-78. Finally, appellant forced Segal to withdraw money from his savings account. N.T. 180-94, 231-33, 243. The bank personnel, suspicious of Segal's uncharacteristically frequent withdrawals of his savings, notified the police. N.T. 200-01, 238, 281-88, 294-96, 301-06. In response, two detectives visited Segal's shop. While the detectives were there, appellant arrived. Noticing that Segal became visibly upset at seeing appellant, the detectives questioned Segal concerning appellant. When Segal told them what had been happening, they arrested appellant.
Each of the nineteen separate convictions for robbery was based on a withdrawal that appellant forced Segal to make from his savings account between January 12 and February 26, 1979. During this period alone, appellant received approximately $28,000 from Segal.
[ 289 Pa. Super. Page 537]
Appellant, testifying in his own defense, did not deny receiving the money but said that Segal had voluntarily given him it. N.T. 350.
Appellant first argues that it was error for the lower court to admit into evidence the tape recorded message that appellant left for the rector of St. Stephens Church because, according to appellant, its admission violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §§ 5701-5705. This argument is without merit. It is not unlawful to "intercept a wire or oral communication, where all the parties to the communication have given prior consent to such interception." 18 Pa.C.S.A. § 5704(4). Here appellant concedes that all the parties consented to have his communication recorded. Nothing in the Act prohibits the disclosure or use of lawfully obtained evidence.
Appellant next argues that it was error for the lower court to admit the tape recorded message because it "was an irrelevant and impermissible reference to prior criminal activity and severely prejudiced" appellant. Brief for Appellant at 7.
The general rule is that the Commonwealth may not introduce evidence of a crime that is distinct from the crime for which the defendant is being tried. 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); Commonwealth v. Bastone, 262 Pa. Super. 590, 396 A.2d 1327 (1979); Commonwealth v. Bond, 261 Pa. Super. 311, 396 A.2d 414 (1978). This rule is an application of the principle that prohibits the initial introduction by the prosecutor of evidence of bad character.
[C]haracter is never an issue in a criminal prosecution unless the defendant chooses to make it one (Wigmore,
[ 289 Pa. Super. Page 538]
Evidence, vol. 1, §§ 55, 192). In a very real sense a defendant starts his life afresh when he stands before a jury, a prisoner at the bar . . . . The principle . . . is one, not of logic, but of policy (Wigmore, vol. 1, §§ 57, 194; People v. Richardson, 222 N.Y. 103, 109, 110, 118 N.E. 514). There may be cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of a milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime. "The natural and inevitable tendency of the tribunal -- whether judge or jury -- is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge" (Wigmore, Evidence, vol. 1, § 194, and cases cited).
People v. Zackowitz, 254 N.Y. 192, 197, 172 N.E. 466, 468 (1939) (CARDOZO, J.).
It is often said that there are exceptions to this general rule, and that evidence of a distinct crime may be admitted 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 logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.
Commonwealth v. Peterson, supra, 453 Pa. at 197-98, 307 A.2d at 269.
As Professor McCormick has pointed out, however,
[t]here are numerous other purposes for which evidence of other criminal acts may be offered, and when so offered the rule of ...