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February 5, 1982


No. 1755 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Wayne County, Criminal Division, No. 97 October Term 1978.


Robert N. Bryan, Honesdale, for appellant.

Stephen G. Bresset, Assistant District Attorney, Honesdale, for Commonwealth, appellee.

Price, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting opinion.

Author: Lipez

[ 298 Pa. Super. Page 83]

In a jury trial, defendant was convicted of arson-endangering property, 18 Pa.C.S. § 3301(b)(1), risking catastrophe, 18 Pa.C.S. § 3302(b), and criminal mischief, 18 Pa.C.S. § 3304(a)(1). Post-verdict motions were filed and denied, and judgment of sentence entered. In this appeal from that

[ 298 Pa. Super. Page 84]

    judgment of sentence,*fn1 we reverse and grant a new trial, because we agree with defendant's contention that the court below erred in admitting testimony concerning an arson defendant committed in New Jersey in 1965 as substantive proof of the crimes charged in this trial.*fn2

The charges in this trial arose out of a fire on October 5, 1978 at the Petto Allen Inn in Honesdale, Pennsylvania. A detective from the Morristown, New Jersey police department testified that on December 21, 1978 defendant confessed to setting this fire. The Commonwealth then attempted to elicit from the detective testimony concerning defendant's arson conviction in New Jersey for a fire he confessed to setting at the Hotel Revere in Morristown on May 22, 1965. Over defense objection, the court below admitted this testimony.

The general rules applicable to testimony of this type have been stated by our Supreme Court:

It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special circumstances, is inadmissible against a defendant who is being tried for another crime because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury's mind. Commonwealth v. Fortune, 464 Pa. 367, 373, 346 A.2d 783, 786 (1971) [sic]; Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334, 336

[ 298 Pa. Super. Page 85]

(1955). The general rule, however, allows evidence of other crimes to be introduced 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. Fortune, supra; Commonwealth v. Wable, supra. Thus, although the law does not allow use of evidence which tends solely to prove that the accused has a "criminal disposition," evidence of other crimes is admissible for certain purposes if the probative worth of this evidence outweighs the tendency to prejudice the jury.

Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981).

The Commonwealth argues that the similarities between the 1965 New Jersey fire and the 1978 Pennsylvania fire were so great as to show a distinctive modus operandi.*fn3

[ 298 Pa. Super. Page 86]

    out some dissimilarities,*fn5 but even without considering these, we do not believe the Commonwealth's six similarities are a sufficiently distinctive modus operandi to constitute defendant's "signature." Only the third even relates to the manner of commission of the crime, and lighting a pile of papers on a wooden floor is hardly a distinctive method of setting fire to an old building.

The fourth, fifth and sixth similarities are conduct the defendant would be equally likely to engage in, whether he had set the fires or not. The fact that the defendant was angry at the time of both fires is at least of some help to the Commonwealth's position, but in neither case was the defendant angry at anyone or anything connected with the hotel. Essentially, the Commonwealth contends that the defendant's unique "signature" consists of being a hotel resident, who is angry at something unrelated to the hotel at the time the hotel has an arson committed by very common means. This is not such a high correlation in details as to make it very unlikely that anyone other than the defendant could have committed the crime, as required by Commonwealth v. Morris, supra.

The connection between the fires is further weakened by the fact that they took place thirteen years apart in two different states. Of course, we agree with the Commonwealth's assertion that the length of time between incidents is merely a factor to be weighed in light of the circumstances of each case. See Commonwealth v. Ulatoski, 472 Pa. 53, 63, 371 A.2d 186, 191-92 (1977), reh'g den'd. The Commonwealth's copious brief discusses numerous cases, in some of which the prosecution was permitted to show prior criminal activity occurring even ...

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