filed: October 12, 1989.
COMMONWEALTH OF PENNSYLVANIA
CLIFFORD T. NEWMAN, APPELLANT
Appeal from the Judgment of Sentence entered July 22, 1988 in the Court of Common Pleas of Centre County, Criminal No. 87-740, 87-771.
Jeffrey W. Stover, State College, for appellant.
Ray F. Gricar, Dist. Atty., Bellefonte, for Com., appellee.
McEwen, Olszewski and Popovich, JJ.
[ 388 Pa. Super. Page 147]
This direct appeal has been taken from the judgment of sentence to two consecutive terms of imprisonment of from ten years to twenty years each, imposed after a jury determined appellant was guilty of the offenses arising from two separate occurrences*fn1 of rape, separated by an eighteen month interval, upon patients at the hospital where appellant was employed as an x-ray technician. We are constrained to reverse and remand.
Appellant asserts that he was irretrievably prejudiced because he was compelled to undergo, in one proceeding, trial upon two distinct charges of rape. An analysis of this argument must commence with an examination of Rule 1127 of the Pennsylvania Rules of Criminal Procedure, which provides, in relevant part:
RULE 1127. JOINDER -- TRIAL OF SEPARATE INDICTMENTS OR INFORMATIONS
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is
[ 388 Pa. Super. Page 148]
capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
While we share the view of the prosecution that the evidence of the two offenses is so distinct as to preclude danger of confusion on the part of the jury, we are unable to agree that the evidence of each of the offenses would be admissible in a separate trial for the other offense. This particular clash between proof and prejudice has so troubled the appellate tribunals of this Commonwealth that the question has been the subject of careful study and intense expression in both decision as well as in dissent.*fn2
It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except under special 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.
[ 388 Pa. Super. Page 149]
Similar safeguards are necessary where a defendant is tried for two or more offenses in one trial, for the prejudice to the defendant maybe just as insidious and the temptation on the part of the prosecution to cumulate the crimes may be just as great.
Commonwealth v. Morris, 493 Pa. 164, 175-176, 425 A.2d 715, 720 (1981).
The Supreme Court in Morris thereby ruled that the question of the consolidation of two or more offenses for trial is to be governed by and subject to the same principles and limitations as are applicable to the admissibility of evidence of a distinct crime.
Since this issue has already been so thoroughly addressed in the appellate courts, it here better serves to simply state the clear and certain principles to be sifted from those pronouncements:
Evidence of a distinct crime is inadmissible against a defendant who is being tried for another crime.
The reluctance of the courts to discard evidence which may have probative value has caused the judicial creation of a number of exceptions to this principle.
Evidence which falls within an exception does not, however, thereby become per se admissible. Rather, it is only deemed of sufficient probative value as to merit a balancing by the trial court to determine whether its probative value exceeds its prejudicial impact.
The Commonwealth correctly recounts the five most frequently cited exceptions to the general principle which excludes evidence of a distinct crime, when it states that evidence of a distinct crime may be admissible to establish (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
[ 388 Pa. Super. Page 150]
crime on trial.*fn3 The prosecution strenuously argues that the "common scheme, plan or design" exception is applicable because "both rapes were part of a common scheme, plan or design of appellant and are so related to each other that proof of one tends to prove the other."
The "common design" exception contemplates that both crimes share such similar characteristics of commission that evidence of the peculiar facts of one crime tends to establish that the accused committed the other, unrelated crime. The shared similarities which produce the conclusion of "common design" may only be found, however, in the acts which compose the crime and which are performed by the perpetrator. The two cases we here examine share considerable commonality, namely, the situs of the attack, the required presence of the accused at the situs, and the necessary presence of both victims at the situs. These similarities, however, while representing identical factors of both criminal episodes, are not elements of the acts which compose the commission of the crime by the perpetrator.
[ 388 Pa. Super. Page 151]
absent from other sex-related crimes." Commonwealth v. Booth, supra, 291 Pa. Super. at 289, 435 A.2d at 1226. There is in the present case, however, no such pattern, or similar fundamental characteristic of the commission of the crimes by the perpetrator.
The essential elements of the act of rape, as well as other sexual crimes, will necessarily produce any number of similar characteristics when two acts of rape are scrutinized for shared features, particularly where, as we have here seen, there is commonality of roles and situs attendant the criminal episodes.
The plain fact is that once our scrutiny and comparison of the instant offenses for shared similarities goes beyond the situs and the status of the participants, and we proceed to a scrutiny of the acts of the perpetrator during commission of the crimes, the characteristic of commonality all but vanishes. We are, therefore, compelled to the conclusion that the similarities necessary to effect application of the "common design" exception are simply not present.*fn5
Since a scrutiny of the details of the two crimes does not reveal sufficient shared similarities as to permit application of the "common design" exception, neither rape would be admissible at a trial of the other. Thus, the condition precedent, established by Rule 1127, to the consolidation of
[ 388 Pa. Super. Page 153]
the separate informations for trial was not met, and appellant was entitled to a separate trial upon each of the two separate offenses. We are, therefore, compelled*fn6 to vacate the judgments of sentence and remand the cases to the Common Pleas Court so as to afford appellant a separate trial upon each charge of rape.
Judgment of sentence reversed. Case remanded. Jurisdiction relinquished.
Judgment of sentence reversed. Case remanded. Jurisdiction relinquished.