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decided: August 12, 1988.


Appeal from the Order entered on July 24, 1986, in the Superior Court of Pennsylvania at No. 1607 Pittsburgh, 1984, vacating the Judgment of Sentence entered on November 29, 1984, and remanding for a new trial in the Court of Common Pleas of Beaver County, Pennsylvania, Criminal Division, at No. 848 of 1983. 358 Pa. Super. 626, 514 A.2d 200 (1986)


Edward J. Tocci, Dist. Atty., Ahmed T. Aziz, Asst. Dist. Atty., Beaver, for appellant.

John P. Dohanich, Robert A. Banks, Ambridge, for appellee.

Zappala, J., did not participate in the consideration or the decision of this case. Stout, J., files an opinion in support of affirmance in which Nix, C.j., and Flaherty, J., join. Larsen, J., files an opinion in support of reversal in which McDermott and Papadakos, JJ., join.

Author: Per Curiam

[ 519 Pa. Page 150]


The Court being evenly divided, the decision of the Superior Court is affirmed.

[ 519 Pa. Page 151]


STOUT, Justice.

This is an appeal by the Commonwealth from the Order of the Superior Court vacating the judgment of sentence of the Court of Common Pleas and remanding for a new trial, 358 Pa. Super. 626, 514 A.2d 199. We affirm.

Appellee was convicted of burglary and rape. The eighteen-year-old victim was raped at about 2:30 or 3:00 a.m., June 28, 1983, in her home on Main Street in Aliquippa, Pennsylvania. She said the rapist was a black man, about twenty-five years of age, who was muscular but not heavy. He had short hair and carried a small gun which protruded about an inch or an inch-and-a-half over his finger. He instructed the victim not to make any noise on pain of death. Because the rapist held a blinding flashlight to her face, the victim could not identify him.

After the rape, which occurred in a back, first-floor room, the rapist directed the victim to the living room. There he inquired as to where her mother was, whether there was a dog on the premises, and where her mother's purse and jewelry were kept.

After this conversation, the victim, who no longer saw the gun, ran screaming from the living room to her brother's home across the street. The rapist ran out behind her but did not cross the street.

The victim's mother, who was awakened by the screams, ran downstairs and saw a black man running down her front steps. She said the person, who turned his head towards her, had a wide nose. From a distance of some fifteen feet, she noticed that he was wearing a light, shortsleeved summer shirt that was open at the collar, dark pants, either gray or brown, and not jeans. His feet were clad either in white socks or shoes. She could not identify Appellee either in court or from a photographic array.

Two gold rings were missing from the victim's house.

Stephen Novosalec, who lives a half-block away and across the street from the victim, arose about 2:30 a.m.,

[ 519 Pa. Page 152]

June 29, 1983 to prepare for a fishing trip. As he was about to step onto his porch, he heard a scream coming from the direction of the victim's house. On looking out, he saw one person screaming and running across the street, and saw another person running down the sidewalk on the other side of the street. This person was a male about six feet tall. He had on jogging pants, a brown and white tasseled cap, a light windbreaker and light shoes. Mr. Novosalec did not see the runner's face and could not identify Appellee.

Over the objection of defense counsel, Nick Kosanovich, who lives two blocks from the victim's home, testified that he was finishing a shower about 7:00 or 7:30 a.m., June 29, 1983, when he heard banging on his cellar door and then heard it open. He pulled back the shower curtain and, for ten to fifteen seconds, observed Appellee in front of him. He was clad in a ragged, off-colored shirt and red, cut-off sweat pants. Mr. Kosanovich saw no gun. He yelled. Appellee ran. Mr. Kosanovich called the police. Between twenty and thirty officers from Aliquippa and two surrounding townships responded and surrounded the wooded areas which were near the homes of Kosanovich and the rape victim and all exits from the wooded areas by which they felt the suspect might flee. While Appellee was in the bed of a creek that runs through the woods, he was shot and apprehended.

Although Appellee was being tried for the earlier burglary and rape and not for the entry into the Kosanovich home, the learned Trial Judge admitted the testimony of Mr. Kosanovich "to establish identification of the person presently on trial and also to show a common scheme or plan and to show intent." N.T., April 10, 1984, at 201. This was error.

The law of this Commonwealth is summarized in Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981) where it is written that:

It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special

[ 519 Pa. Page 153]

    circumstances, is inadmissible against a defendant who is being tried for another crime because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury's mind . . . . The general rule, however, allows evidence of other crimes to be introduced to prove . . . (2) intent . . . (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.

Intent is not an issue in this case. A breaking and entering followed by a rape proclaims mens rea, and is without ambiguity. The identity of the actor is at issue here and the Commonwealth sought to prove it through evidence of ...

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