Commonwealth v. Booth

CAVANAUGH, Judge,

concurring:

While I concur in the result reached by the Majority, because the issue of the admissibility of evidence offered to show a common plan, scheme or design has been waived, I would decline to reach the merits.

Prior to the taking of testimony trial counsel objected to the presentation of evidence by the Commonwealth to show common plan, scheme, or design. This objection was overruled without prejudice to appellant to make specific objections when such evidence is presented. At trial testimony was heard without objection1 from four witnesses, other than the complaining witnesses, concerning offenses committed by the appellant for which he had not been charged. Because trial counsel failed to make specific objections to the testimony at trial, appellant is foreclosed from raising this issue on appeal. See Commonwealth v. Griffin, 271 Pa.Super. 228, 412 A.2d 897 (1979); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979). Although the issue of waiver has not been addressed by either party, this court may reach the issue sua sponte. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Tunnel, 463 Pa. 462, 345 A.2d 611 (1975).

Appellant’s waiver of the issue notwithstanding, I am compelled to comment on what I deem to be erroneous in the Majority’s disposition on the merits.

*293The rule of evidence that a distinct crime, except under certain special circumstances, cannot be received in evidence against a defendant being tried for a different crime has been referred to us “one of our most fundamental and prized principles in the administration of criminal law.” Commonwealth v. Wright, 259 Pa.Super. 293, 298, 393 A.2d 833, 835-36 (1978) quoting Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). See also Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867 (1955). The reasons for this rule are two-fold: The fact that a defendant has committed one criminal act is not proof that he committed another. Secondly, because the risk of jury prejudice is so great, the defendant may be convicted of being a “bad person”, rather than of the specific crime charged. Id. See generally, McCormick on Evidence, § 190 at 447-54 (2d ed. 1972).

Because of the potential lack of probative value and the risk of prejudice, evidence of unrelated criminal acts are not admissible unless such evidence fits within certain special circumstances exceptions. Thus evidence of other crimes may be admissible when it is offered to prove motive, intent, absence of mistake or accident, identity of the accused, or common plan, scheme or design of two or more crimes which are so related that proof of one tends to prove the other. Commonwealth v. Wright, supra, Commonwealth v. Showalter, 231 Pa.Super. 278, 332 A.2d 456 (1974). However, even if the evidence comes within one of the special circumstances exceptions, in determining its admissibility the trial court must balance the need for the evidence against its potential prejudice. Commonwealth v. Wright, supra.

In the instant case the Commonwealth offered the testimony of four witnesses who had been incarcerated in the Susquehanna County jail at or about the time that the acts with which the appellant was charged were committed. These witnesses, McKinney, Cronk, Razderk, and Koshinski, testified concerning criminal acts allegedly performed by the appellant. The lower court admitted this testimony as evidence of a common plan, scheme or design. In reference to *294the admission of this testimony into evidence, the Majority states:

. . . [W]e are satisfied that the evidence of “other crimes” was properly admitted instantly. All of the acts alleged were of similar character: An inmate in the Susquehanna County jail is invited to the sheriff’s quarters and offered beer and alcohol; afterwards, appellant makes sexual advances to the inmate either in the cell or in the private rooms; the sexual activity is always of the same variety. The pattern repeated in each of the encounters related by the various inmates who testified carried a mark of distinction absent from other sex-related crimes. . . The high degree of similarities among the acts alleged persuade us that a common plan or design was established.

A review of the record, however, reveals that the acts testified to were not of the similar character described by the Majority. McKinney testified that on four occasions he was invited into the appellant’s quarters where acts of oral sodomy were performed. On three of these occasions McKinney, appellant and Butts were present. The fourth incident included only McKinney and the appellant. McKinney denied ever being served alcohol by the appellant. Cronk testified that while in the appellant’s quarters the appellant asked him to take a shower with him but Cronk declined. No sodomy occurred nor was any alcohol served. Razderk testified to drinking beer and scotch in the appellant’s quarters but he did not testify that any sexual acts were committed. Finally, Koshinski testified to being furnished alcohol by the appellant, but not to the occurrence of any sexual acts.

Thus while the evidence may show a propensity in the appellant for homosexual activity, the record in the instant ease clearly shows that no common plan was established. As the Majority states, where the “other crimes” evidence contains many dissimilarities from the crime charged and contains no distinctive elements, it is error to admit such testimony. In sum, the evidence here showed nothing more than reckless opportunism in the exercise of appellant’s *295proclivities rather than the sinister methodology signifying common plan, scheme or design.

Moreover, the mere existence of a “high degree of similarities among the acts allegéd” is not sufficient to bring such evidence within the common plan, scheme, or design exception. As noted above, to be admissible the crimes alleged must be so related that proof of one tends to prove the other. Thus McCormick limits the admissibility of common plan, scheme, or design evidence to situations where the prosecution uses the evidence to shed light on the disputed issues of the defendant’s motive, identity, or intention. McCormick, supra at 448 49. This proposition was cited with approval in Commonwealth v. Bradley, 243 Pa.Super. 208, 214 n.2, 354 A.2d 944, 947 n.2 and is consistent with the principle that testimony of other alleged crimes may not be offered to demonstrate criminal propensity. See also Commonwealth v. Boulden, supra. In Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979) Judge Spaeth in a concurring opinion addressed the problem of common plan evidence in prosecution for sexual offenses and the application of the Bradley and Boulden decisions to such situations:

Those decisions adhere to the principle that in a prosecution for a sexual offense the Commonwealth may not introduce evidence that the defendant committed prior or subsequent offenses against third persons similar to the offense committed against the complaining witness, if its only purpose is to show that the defendant is generally lustful or sexually depraved. It is hornbook law that evidence of prior criminal acts is admissible if “[t]o show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial,” McCormick on Evidence § 190 at 449 (Clearly ed. 1972) (footnote omitted); it is also hornbook law that evidence of “[ojther like sexual crimes with other persons do[es] not qualify for this purpose.” Id. (footnote omitted). See also Wigmore, supra § 402(c) (“The defendant’s former rape or attempt of rape of a third person cannot be treated as indicating a *296passion or desire for the woman in issue. . . . ” (original emphasis).

271 Pa.Super. at 319, 413 A.2d at 425.

In the instant case the appellant did not attempt to establish that he lacked motive, or that he committed the crimes accidentally or that the complaining witnesses were mistaken as to the identity of the perpetrator. Therefore, in allowing the evidence of common plan under its mistaken view of the facts, the Majority thereby sanctions the admission of testimony establishing that the defendant committed the acts charged in the past as proof that he will, and in fact did, commit those acts again. Evidence admitted for this purpose is irrelevant and prejudicial.

Further, the Majority seems to rely on Bradley for the proposition that sex offenses2 committed less than one year are not too remote so as to render them inadmissible. However, Bradley should not be given such an expansive reading and the language must be viewed within the proper context. In Bradley this court approved the holding in Boulden which sought to limit the prior decision in Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949). We stated:

The trial court and the Commonwealth rely heavily on Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949), as support for an expanded and loose definition of “plan or design.” In Kline, the Pennsylvania Supreme Court stated that, “The word ‘design’ implies a plan formed in the mind. That an individual who commits or attempts to commit abnormal sex offences is likely to have such a mental ‘plan’ finds recognition in the fact that when a *297defendant is charged with the commission of a sexual offence the law is more liberal in admitting as proof of his guilt evidence of similar sexual offences committed by him than it is in admitting evidence of similar offences when a defendant is charged with the commission of non-sexual crimes.... [I]f A is being tried for the rape or attempted rape of Y the fact that recently he raped or attempted to rape X is admissible in evidence because it tends to prove that he possessed such an abnormal mental or moral nature as would likely lead him to commit the offence charged.” 361 Pa. at 443-444, 65 A.2d 351 (1949). (emphasis supplied). In Kline, however, the defendant was charged with a rape occurring on October 20, 1946, and another witness testified that defendant exposed himself to her sometime late in October. “There was thus a close relationship in time, with the probability that the events occurred within a week of each other and the possibility that they occurred the same day.” Commonwealth v. Boulden, supra, 179 Pa.Super. at 347, 116 A.2d at 876. We agree with Judge Woodside’s opinion in Boulden that the rule of the Kline case should not be extended beyond its facts to permit evidence of events occurring more than one year prior to the offense charged.

243 Pa.Super. at 214, 364 A.2d at 947. This language does not establish a general rule as the Majority seems to conclude, but rather is merely noting its approval of the holding in Boulden in light of its own particular facts. (There in a prosecution for corrupting the morals of two girls it was held that admission of testimony that defendant, a year prior to offenses for which he was being tried, had committed a similar act with another girl and had shown a pornographic picture to yet another girl was error.) Also in Bradley we stated that the court should be more willing to construe reasonable time litigations even more strictly when the prosecution seeks to offer in its case in chief evidence of other offenses not documented by recorded convictions or even resulting in arrest or trial. 243 Pa.Super. at 216 n. 5, 364 A.2d at 948 n. 5.

*298In conclusion, I note that my disagreement with the majority is threefold. First, the issue was waived by trial counsel’s failure to object. Second, the testimony adduced fell far short of establishing a common plan. Finally, assuming arguendo that a common plan was shown, such evidence was not admissible because it did not tend to prove the crimes charged.

In Commonwealth v. Boulden Judge Woodside set forth three dangers which accompany the admission of evidence of other crimes: (1) A defendant would have to meet charges of which he had no notice and which might be totally fabricated; (2) the defendant would have to respond to collateral issues and the attention of the jury would be diverted from the crime being charged; (3) the jury might conclude that proof of prior offenses justified a condemnation of the defendant irrespective of his guilt of the crimes charged. Because each of these dangers are overwhelmingly present in the instant case and because the common plan, scheme or design exception has been extended far beyond its permissible scope, I strongly disagree with the majority. By allowing the testimony of McKinney, Cronk, Razderk, and Koshinski the majority extends the common plan, scheme or design exception to such an impermissible degree as to deny the defendant a fair trial.

. Although the Majority states that such evidence was admitted over objection, no objection was made. Trial counsel did object during the direct examination of a complaining witness, Butts, to questions concerning crimes prior to the dates alleged on the indictment. However, such evidence involving a victim of sexual offenses is governed by a more liberal standard. Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979).

. Formerly it was held that courts may be more liberal in allowing evidence of prior crimes to show common plan, scheme or design where the crimes were involved are sex offenses. Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1974). However, in Commonwealth v. Shively, 492 Pa. 411, 417, 424 A.2d 1257, 1259-60 (1981) (per O’Brien, C. J. with one Justice concurring and two Justice concurring in the result), Kline was expressly overruled. Cases of this court have also seriously questioned the holding of Kline and have urged that sexual and nonsexual crimes must be treated alike in deciding whether evidence of prior criminal activity should be admitted. See Commonwealth v. Bradley, supra; Commonwealth v. Boulden, supra.