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March 25, 1985



John R. Carroll, Philadelphia, for appellant.

Ray Gricar, Assistant District Attorney, Bellefonte, for Com., appellee.

Author: Spaeth

Spaeth, President Judge:

[ 349 Pa. Super. Page 272]

This appeal is from a judgment of sentence for first-degree murder. Appellant assigns some nine trial errors, but we need address only two: 1) whether the evidence presented was sufficient to sustain the jury's verdict; and 2) whether the trial court committed reversible error by admitting evidence of appellant's prior misconduct. We have concluded that the evidence was sufficient, but we agree with appellant that the trial court committed reversible error in admitting evidence of appellant's prior misconduct. We therefore vacate the judgment of sentence and remand for a new trial.

The evidence implicating appellant in the death of Thomas Kinser was entirely circumstantial evidence may satisfactorily prove any or all of the elements of a crime beyond a reasonable doubt. Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979). Pur tasks is to review the evidence in the light most favorable to the Commonwealth, "accept§ing} as true all evidence and all reasonable inference upon which, if believed, the factfinder could have properly based its verdict..." Id., 488 Pa. at 540, 412 A.2d at 1364.

The Commonwealth established at trial that appellant was the last known person to see Thomas Kinser alive. On December 14, 1980, Kinser borrowed a van from his family to dive appellant, who was his friend and former roommate, to nearby Lewistown. According to Kinser's mother, appellant had requested this favor a few days earlier. The van was found early the next morning in the parking lot of

[ 349 Pa. Super. Page 273]

    the apartment building where Kinser lived, but Kinser had disappeared.

When questioned by Kinser's girlfriend and family, appellant gave conflicting explanations of the disappearance. He told Linser's girlfriend that Kinser has left him at approximately five o'clock, after they had returned from Lewistown, and that he had paid Kinser in drugs for the trip. He suggested to Kinser's mother that Kinser might have traveled south because of the cold weather. When Mrs. Kinser asked appellant whether her son had money with him, appellant said that he did not know of any. A short time later, however, appellant telephoned Mrs. Kinser to assure her that Kinser was carrying about two hundred dollars. When Kinser's father asked appellant to discuss the stories about the drugs and the two hundred dollars, appellant refused.

Almost a year later, on September 27, 1981, a decomposed body partially covered with logs and debris was discovered by teenagers in a wooded area. The remains were identified through dental charts as those of Thomas Kinser. An autopsy revealed a single bullet hole through the top of the skull. According to medical testimony, death could have occurred any time between December 1980 and April 1981.

A bullet from a .25 caliber handgun was found with Kinser's remains. Using a metal detector, police also uncovered a .25 caliber shell casing in the immediate area. This shell casing was linked to a gun purchased by appellant about a week before Kinser's disappearance. Appellant had test-fired the .25 caliber weapon before buying it. The seller was able to show police where the test-firing had occurred, and another .25 caliber bullet and another shell casing were recovered from that site. A ballistics expert testified that the two casings--the casing found in the immiediate area of Kinser's body and the casing found at the test-firing site-- were fired from the same gun. These casings were also of the same vintage as the gun and ammunition sold to appellant. The bullet found with the body could not be compared with the bullet found at the test-firing site because of the deterioration of the bullet found with the body. No gun was ever produced at trial.

The Commonwealth also presented evidence of a motive for the murder. In May 1980 appellant stole a fourteen pound synthetic ruby from a display case in the Materials Research Laboratory at Pennsylvania State University. The ruby was valued at between two and three hundred dollars but one witness testified that appellant told him it was worth one or two million dollars. Appellant hid the ruby in the woods, where it was later found, sometime that fall, by a woodcutter, who took it home with him. Thomas Kinser had seen the ruby and during the summer spoke of it admiringly to his mother. Also, Kinser was familiar with the area where the ruby was hidden. Coupled with this evidence was testimony suggesting that appellant was the sort of person who would lure someone who had betrayed him into the woods and shoot him.

The preceding evidence was sufficient to convict appellant of murder in the first degree. Appellant's opportunity to kill Kinser was shown. Kinser was last known alive in the company of appellant. Moreover, appellant's subsequent accounts of their day together were suspicious. From the autopsy and ballistics testimony, the jury could have found that a bullet fired from appellant's .25 caliber gun was the cause of death. The jury also could have found that appellant had fired the gun, because it was his gun, and had done so with intent to kill Kinser, the intent being inferred from the evidence of the bullet hole in the skull. See Commonwealth v. Crownson, supra. Further evidence of intent was the evidence of the purchase of the gun. The evidence regarding appellant's prior theft of the ruby, thand the evidence regarding appellant's prior theft of the ruby, and the evidence suggesting that appellant would deal with someone who betrayed him by luring him into the woods and shooting him, further supported the Commonwealth's case, for it tended to prove both motive and disposition.

In considering the admissibility of the evidence regarding the ruby and luring someone into the woods, we may start with the general rule that evidence of prior offenses is generally inadmissible in a criminal trial because ""[t]he presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectively strip him of the presumption of innocence"', but it nevertheless may be admissible to show "(1) motive, (2) intent, (3) a common scheme or plan involving the commission of two or more crimes so closely related that proof of one tends to prove the other, (4) the identity of the accused as the perpetrator, (5) [absence of] accident or (6) lack of mistake." Commonwealth v. Styles, 494 Pa. 524, 527-28, 431 A.2d 978, 980 (1981) (quoting Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978)).

The Commonwealth argues that the evidence of appellant's prior theft of the ruby falls within the exception ofr motive, and also within the "same transaction" exception articulated in Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975), because the theft ""formed part of a chain, or was one of a sequence of acts, or became part of the natural development of the facts."' Id., 462 Pa. at 591, 342 A.2d at 90 (quoting Commonwealth v. Williams, 307 Pa. 134, 160 A.602(1932)). The Commonwealth further argues that the probative value of the evidence outweighed any prejudice to appellant.

We are not persuaded by this reasoning. Its premise, as acknowledged by the Commonwealth, is that appellant "had reason to believe that Kinser had stolen the ruby from its hiding place." Brief for Commonwealth at 25. This premise, however, is not supported by the evidence. There is no evidence--and the Commonwealth does not claim otherwise--that Kinser did in fact steal the ruby. While it is true that Kinser knew of the campsite in the woods where appellant hid the ruby, there is no evidence that he knew that appellant had hidden the ruby there, much less ...

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