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filed: October 18, 1985.




John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Eric J. Woltshock, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Wieand, Cirillo and Johnson, JJ. Wieand, J., files a concurring opinion. Johnson, J., files a dissenting opinion.

Author: Cirillo

[ 346 Pa. Super. Page 441]

This is an appeal from the judgment of sentence imposed on a conviction for murder in the third-degree. We affirm.

The charges lodged against the appellant, David Murphy, arose out of the death of Thomas Joyce. Joyce spent a day visiting with his children and his estranged wife, Sharon Joyce. The victim's wife told him that Murphy tried to rape her the night before. Joyce then left, but returned a short time later. He informed Sharon that he had been to Murphy's residence but that no one answered the door. A few hours later, Joyce, this time accompanied by Daniel Hunt, again went to Murphy's house to confront him about the alleged rape attempt. Thomas Joyce knocked on the door and appellant's wife told him to go away. He then proceeded to break a picture window and slash it with a hunting knife. While doing this he said, "I want you, Murphy." Hunt attempted to pull Joyce off the window sill and at the same instant, Murphy fired a shot, from inside the house, which hit Joyce in the neck. As Joyce and Hunt ran off the porch, Murphy fired a second shot which also hit Joyce. He

[ 346 Pa. Super. Page 442]

    died on the way to the hospital as a result of the gunshot wounds.

Following a jury trial, Murphy was convicted of murder in the third-degree and was sentenced to a term of imprisonment of seven and one-half to fifteen years. Post-trial motions were timely filed and denied.

On direct appeal appellant raises the following issues:

1) Whether evidence introduced at trial denied Mr. Murphy his Constitutional right to a trial before an impartial jury?

2) Whether defense counsel's failure to object to the introduction of irrelevant and prejudicial testimony of a prior criminal act resulted in the ineffective assistance of counsel?

We find the first issue to be waived. At trial, Sharon Joyce testified that she told her husband that Murphy had tried to rape her. Additionally, two other witnesses testified to being told by Sharon and Thomas Joyce of the alleged attempted rape. Appellant contends that this testimony denied him his constitutional right to a trial before an impartial jury. However, because trial counsel failed to object to the testimony concerning the alleged prior criminal act of Murphy, this issue was not preserved for appellate review. See Commonwealth v. Northington, 494 Pa. 155, 430 A.2d 1164 (1981); Commonwealth v. Griffin, 271 Pa. Super. 228, 412 A.2d 897 (1979).

Appellant also contends that trial counsel was ineffective for failing to object to the testimony concerning the alleged rape. Further, he argues that the testimony was highly prejudicial to his defense. We find appellant's claim to be without merit. Since counsel cannot be deemed ineffective for failing to pursue a meritless argument, Commonwealth v. Carter, 329 Pa. Super. 490, 478 A.2d 1286 (1984), the judgment of sentence is affirmed.

The challenged evidence in the case at bar presents a classic textbook example for the application of the "same transaction" or "res gestae" exception to the general rule

[ 346 Pa. Super. Page 443]

    that "evidence of criminal activity not charged in the indictment or information on which the defendant is being tried cannot be introduced at trial." Commonwealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694-95 (1978). In Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932), the Supreme Court spelled out the "same transaction" exception stating that such evidence is admissible where the "prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts." Accord Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Evans, 343 Pa. Super. 118, 494 A.2d 383 (1985); Commonwealth v. Shirey, 333 Pa. Super. 85, 481 A.2d 1314 (1984); Commonwealth v. Robinson, 316 Pa. Super. 152, 462 A.2d 840 (1983) (allocatur denied); Commonwealth v. Davenport, 286 Pa. Super. 212, 428 A.2d 647 (1981).

The "same transaction" exception has been viewed by our courts as a supplement to the five well-recognized exceptions to the general rule that evidence of other crimes is inadmissible to prove the crime for which the defendant is being tried. Shirey, supra; Commonwealth v. Stufflet, 276 Pa. Super. 120, 419 A.2d 124 (1980); see also McCormick, Evidence § 190 (2d Ed. 1972); J. Wigmore, supra at § 218. These exceptions include:

(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. 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

[ 346 Pa. Super. Page 444]

    probative worth of this evidence outweighs the tendency to prejudice the jury. (citations omitted).

Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981); Commonwealth v. Styles, 494 Pa. 524, 528, 431 A.2d 978, 980 (1981); Shirey, supra 333 Pa. Super. at 123, 481 A.2d at 1334.

We are compelled to note that there has been much controversy surrounding the use of the phrase "res gestae" when referring to evidence of a prior criminal act that becomes part of the history of the event on trial. Indeed, in our recent decision in Commonwealth v. Evans, 343 Pa. Super. 118, 494 A.2d 383 (1985), we refrained from using the term "res gestae" at all when referring to the admissibility of "evidence of other criminal activity [which] forms part of the history of the event or serves to enhance the natural development of the facts." Id., 343 Pa. Superior Ct. at 132, 494 A.2d at 390. It has even been suggested by Professor Wigmore that the term "res gestae" be abandoned as a useless and confusing phrase. Wigmore, supra at § 218. Further, it has been proposed that the "res gestae" exception is not really an exception at all, but rather a well-established principle of multiple admissibility. Id. at §§ 215, 216.

In light of the foregoing, we adopt the view that the term "res gestae" should be abandoned. However, this should be limited to the situation where the crime charged arose from the prior criminal activity and evidence of the prior act is needed to complete the full picture of the event on trial.*fn1

Once it is established that the "same transaction" exception is applicable, the court must then balance the prejudicial impact of the evidence against its probative value to determine admissibility. Absent a flagrant abuse ...

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