No. 44 Pittsburgh, 1980, No. 61 Pittsburgh, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lawrence County at Nos. 117 and 118 of 1979
Norman A. Levine, New Castle, for appellant.
Paul W. Johnson, Assistant District Attorney, New Castle, for Commonwealth, appellee.
Spaeth, Johnson and Popovich, JJ. Spaeth, J., concurs in the result.
[ 297 Pa. Super. Page 219]
Appellant, Robert E. Lee, was arrested for robberies which had occurred at a Lawson Milk Company, on October 3, 1978, and at a Fast and Friendly Food Market, on October 22, 1978. Two separate trials were held, and appellant was found guilty both times by a jury for robbery. Post-verdict motions were denied, and appellant was sentenced at No. 117-1979 (the Lawson's robbery) to a term of imprisonment of not less than six nor more than fourteen years in prison. Appellant's other sentence, at No. 118-1979, was a concurrent term of imprisonment of not less than five nor more than ten years. Both sentences also were to run concurrent with the term appellant was already serving on a previous conviction. Appeals from both terms, Nos. 117-118 of 1979, have been filed to this Court and consolidated. Although appellant raises similar issues in both appeals and the facts pertinent to each overlap, the issues will be addressed in separate discussions. For the following reasons, we reverse the judgment of sentence and remand for a new trial at No. 117-79 (44 Pittsburgh 80), and reverse the judgment of sentence and order appellant discharged at No. 118-79 (61 Pittsburgh 80).
In this appeal, it is alleged that the trial court erred in allowing a police officer to testify that appellant was arrested twenty days after the crime in a Lawson's parking lot and had possession of a gun when, in fact, appellant contends he was not arrested at that time for the crime in question. We agree.
As a general rule, the prosecution cannot introduce testimony from which the jury could reasonably infer that the defendant has been engaged in criminal activity not
[ 297 Pa. Super. Page 220]
charged in the indictment or information for which the defendant is being tried. See Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978); Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973) cert. denied, 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973). Our cases have so often stated that:
"[t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence [ . . . ] Com[monwealth] v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975) (quoting Com[monwealth] v. Clark, 453 Pa. 449, 452-3, 309 A.2d 589, 590-91 (1973)." Commonwealth v. Spruill, 480 Pa. 601, 605-606, 391 A.2d 1048, 1049-50 (1978).
The first area of inquiry is whether the jury could reasonably infer, either expressly or by implication, from the facts presented that the accused had engaged in unrelated criminal activity. See Commonwealth v. Fuller, supra. In the instant case, we conclude that the jury could so reasonably infer such activity from all of the attendant circumstances. See Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976).
The record reveals the following:
During the prosecution's case-in-chief, a police officer, Richard Dunkerley, was called to the stand. However, before he testified, the following occurred:
"MR. JOHNSON: We will call Officer Dunkerley.
MR. PANELLA: May we have a sidebar?
[ 297 Pa. Super. Page 221]
MR. PANELLA: Your Honor, I would like an offer of proof on this testimony from this officer from Hermitage. I don't know what he is going to testify to.
MR. JOHNSON: This officer arrested the Defendant.
THE COURT: What he wants to know, you tell on the record, we offer to prove by this witness these things and then I will know what you are going to ask him.
MR. JOHNSON: We offer to prove on the record that the Defendant is alleged to have had a certain gun in this robbery and he was arrested about three weeks later with a gun that matches this gun exactly at the Lawson's store in another community under suspicious circumstances. Now, we are not going to go into the circumstances behind the arrest, but it certainly is good evidence that he has a same gun he was seen with.
THE COURT: We are/not [sic] going to let you refer to suspicious circumstances. This officer may testify that he had an occasion to arrest the man, if that is what he did, and then in a search of this person, he found this revolver and was identified by somebody as being the one that looked like the one used in the store.
MR. PANELLA: I don't think that, number one, that the Defendant was never [sic] charged on this other Lawsons -- never charged for any crime for Lawsons, this Lawsons he is describing. He was never charged with any crime. He was never charged with a crime carrying a gun. I don't think his witnesses have identified this gun as the same gun.
MR. JOHNSON: They have identified it to me as being the exact gun -- one of them.
THE COURT: We are going to permit that part of it that I said I would permit, but nothing more and if he goes over the bounds, you move for a mis-trial [sic] and we will grant it.
MR. PANELLA: You are going to permit what? The fact he was arrested on another charge?
MR. JOHNSON: I am not going to mention any other charges.
[ 297 Pa. Super. Page 222]
MR. PANELLA: That the officer arrested him?
MR. JOHNSON: I am not going to mention that.
MR. PANELLA: How are you going to get in the fact that he found him with a gun if he wasn't arrested? He seen a guy with a gun?
MR. PANELLA: He has never been charged with any crime.
THE COURT: We are going to permit it. You have an exception on the record. We will permit it to that extent that I stated and no further.
RICHARD DUNKERLEY, called as a witness, being first duly sworn according to law, testified as follows:
BY MR. JOHNSON : Direct Examination:
Q. State your name, please.
Q. What is your occupation?
A. I am a police officer.
Q. With what police department?
A. Municipality of Hermitage, ...