No. 1895 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lebanon County, 1978, No. 350.
Kenneth C. Sandoe, Lebanon, for appellant.
David J. Brightbill, District Attorney, Lebanon, for Commonwealth appellee.
Price, Cavanaugh, and Watkins, JJ.
[ 301 Pa. Super. Page 123]
Appellant, Efrain Martinez, appeals from the judgment of sentence imposed after his conviction for unlawful delivery of a controlled substance.*fn1 Appellant claims that the trial court erred in permitting the Commonwealth's introduction, in its case in chief, of evidence of appellant's subsequent criminal activity.*fn2 We agree and, therefore, grant appellant a new trial.
The following facts were adduced at trial. At approximately 7:20 p.m. on May 1, 1978, Officer Joel Hicks and an informant, Stephanie Lynch, entered DiNunzio's Spaghetti House in Lebanon, Lebanon County. Shortly thereafter, Miss Lynch was approached by appellant, who engaged her in a private conversation. Following this conversation Miss Lynch, appellant and Officer Hicks left the spaghetti house and pursuant to appellant's directions drove Officer Hicks' van to Seventh and Lehman Streets. Upon their arrival and in response to an inquiry by appellant, Officer Hicks gave appellant a one hundred dollar bill and said that he wanted to purchase a fifty dollar bag of heroin. Appellant exited the van and walked outside Officer Hicks' and Miss Lynch's range of vision. Less than one-half hour later appellant
[ 301 Pa. Super. Page 124]
returned to the van carrying a tin foil packet containing a brownish powder,*fn3 a small jar of water and fifty dollars. Appellant gave the foil packet and money to Officer Hicks, and offered him a syringe and water with which to inject the heroin. Officer Hicks ignored appellant's offer and, at appellant's request, left appellant in the vicinity of the William Penn Bar.
Appellant was charged with the unlawful delivery of heroin*fn4 and tried before a jury on September 5 and 6, 1978. For the limited purposes of showing state of mind and intent the trial court permitted the prosecution to introduce evidence of a second sale of heroin allegedly made by appellant in DiNunzio's Spaghetti House on May 19, 1978. The charges filed against appellant for the alleged subsequent sale of heroin were unresolved at the time of trial.*fn5 The jury rendered a guilty verdict, following which appellant filed post-verdict motions alleging, inter alia, that the evidence of the later sale had been improperly admitted. Appellant's motions were denied on June 7, 1979, and this appeal ensued.
"It is well established that evidence of other criminal activity generally is inadmissible against a defendant at his trial on another charge. Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973)." Commonwealth v. Stokes, 279 Pa. Superior Ct. 361, 371, 421 A.2d 240, 245 (1980). "The Commonwealth must prove beyond a reasonable doubt that a defendant has committed the particular crime of which he is accused, and it may not strip him of the presumption of innocence by proving that he has committed other criminal acts." Commonwealth v. Stanley, 484 Pa. 2, 7, 398 A.2d 631, 633 (1979). See also Commonwealth v. DeVaughn, 488 Pa. 629,
[ 301 Pa. Super. Page 125413]
A.2d 660 (1980). Evidence of other crimes may be admissible, however, when it is offered to prove: "(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) the identity of the person charged with the crime." Commonwealth v. Brown, 280 Pa. Superior Ct. 303, 307, 421 A.2d 734, 736 (1980). See also Commonwealth v. ...