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filed: May 10, 1985.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Lycoming County, Criminal Division, No. 82-10-383


Michael J. Casale, Jr., Williamsport, for appellant.

Robert W. Ferrell, III, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Cavanaugh, Beck and Tamilia, JJ. Beck, J., files a concurring opinion.

Author: Tamilia

[ 342 Pa. Super. Page 204]

Appellant, George Marshall Sparks, was convicted in a jury trial of three counts of conspiracy and three counts of

[ 342 Pa. Super. Page 205]

    theft by receiving stolen property.*fn1 Appellant's motions in arrest of judgment and for a new trial were denied by the lower court. Sentence of one and one-half years to five years of imprisonment and concurrent sentences totaling six and one-half years to nineteen years of imprisonment were imposed. We affirm.

Appellant first contends that the lower court erred in not sustaining the demurrer to the evidence on the conspiracy charges. Because appellant did not rest following the adverse ruling of the lower court, but elected to present a defense, the correctness of the ruling on the demurrer is no longer an appealable issue. See, e.g., Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980) citing Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976) and Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959). Hence, we cannot address appellant's contention.

Appellant next contends that the lower court erred in permitting the Commonwealth's introduction of appellant's subsequent criminal activity. Specifically, appellant contends that it was error to admit testimony of the Commonwealth witness, Harry Swank. Swank testified that he had taken two chain saws to appellant's place of business approximately three months after the incidents for which appellant was on trial. Swank stated that he informed the appellant that the saws were stolen and asked appellant if he would buy them. Swank further testified that appellant stated that it was too early in the season, he didn't want the chain saws, he would take all the antiques that Swank could obtain, Swank should inform him of the direction from which the antiques had come and he, appellant, would get the antiques out of town in a day or so.

[ 342 Pa. Super. Page 206]

It is well-settled that evidence of a defendant's other criminal activity is inadmissible as evidence of his guilt at his trial on another charge. Commonwealth v. Page 206} Kenny, 326 Pa. Super. 425, 474 A.2d 313 (1984); Commonwealth v. Shealey, 324 Pa. Super. 56, 471 A.2d 459 (1984); Commonwealth v. Barba, 314 Pa. Super. 210, 460 A.2d 1103 (1983); Commonwealth v. Martinez, 301 Pa. Super. 121, 447 A.2d 272 (1982). However, as exceptions to this rule, evidence of other crimes may be introduced to prove motive, intent, absence of mistake or accident, common scheme or plan, or identity. Commonwealth v. Shealey, supra; Commonwealth v. Barba, supra; Commonwealth v. Martinez, supra. When one of these exceptions applies, however, the trial court must balance the need for the other crimes evidence against the possible prejudice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Hawkins, 295 Pa. Super. 429, 441 A.2d 1308 (1982); Commonwealth v. Bond, 261 Pa. Super. 311, 396 A.2d 414 (1978). Nonetheless, "'[w]hen the evidence is relevant and important to one of these . . . [exceptions], it is generally conceded that the prejudicial effect may be outweighed by the probative value.'" Commonwealth v. Hawkins, supra, 295 Pa. Super. at 438, 441 A.2d at 1312 quoting Commonwealth v. Peterson, 453 Pa. 187, 198, 307 A.2d 264, 269-70 (1973). See also, Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984).

In the instant case, the Commonwealth was required to prove that appellant possessed stolen goods with knowledge that they were stolen or at least with a belief that they had probably been stolen. 18 Pa.C.S.A. § 3925; Commonwealth v. Barba, supra. Appellant's defense to the charge of theft by receiving stolen property was his lack of knowledge regarding the stolen character of the property he was receiving and innocent intent. Appellant had repeatedly testified that he was never told that the goods were stolen and denied knowledge of the stolen character of the goods.

[ 342 Pa. Super. Page 207]

[W]hen the crime charged involves the element of knowledge, intent, or the like, the state will often be permitted to show other crimes in rebuttal, after the issue has been sharpened by the defendant's giving evidence of accident or mistake, more readily than it would be part of Page 207} its case in chief at a time when the court may be in doubt that any real dispute will appear on the issue.

McCormick on Evidence, § 190 at 452 (Cleary Ed. 1972) (emphasis added). See also Commonwealth v. Martinez, supra; Commonwealth v. Bond, supra; Commonwealth v. Wright, 259 Pa. Super. 293, 393 A.2d 833 (1978). At the time the Commonwealth offered the Swank testimony, the issue of appellant's knowledge and intent had been sharpened by appellant's defense. Hence, the Commonwealth needed to introduce the evidence to rebut the assertion of lack of knowledge or intent. Compare, Commonwealth v. Martinez, supra ...

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