Opinion
December 12, 1969.
March 19, 1970.
Criminal Law — Evidence — Proof tending to show guilt of other crimes — Reference to arrest of defendant while in a federal prison.
1. In a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged.
2. In this case, in which it appeared that a police officer testified that he arrested defendant while defendant was in a federal prison, it was Held that the admission of this testimony constituted prejudicial error requiring a new trial.
Before WRIGHT, P.J., MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ. (WATKINS, J., absent).
Appeals, Nos. 1000 and 1001, Oct. T., 1969, from judgment of sentence of Court of Oyer and Terminer, Nos. 601 and 602 of Jan. T., 1966 and No. 570 of June 1966, in case of Commonwealth of Pennsylvania v. Frank Bonnano. Judgment vacated and new trial granted.
Indictments charging defendant with burglary, aggravated robbery, and conspiracy. Before BARBIERI, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
F. Emmett Fitzpatrick, Jr., for appellant.
James D. Crawford, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
WRIGHT, P.J., would affirm on the opinion of Judge BARBIERI.
JACOBS, J., dissented.
Argued December 12, 1969.
In Commonwealth v. Trowery, 211 Pa. Super. 171, 235 A.2d 171 (1967), photographs of the defendant from a police file commonly known as the "rogues gallery" were introduced into evidence over timely objections. This Court held that admission to be reversible error. As we stated in Trowery, the well established common law rule is that, ". . . in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. Shaffner v. Commonwealth, 72 Pa. 60, 13 Am. Rep. 649 (1872); Commonwealth v. Burger, 195 Pa. Super. 175, 171 A.2d 599 (1961)." See also, Commonwealth v. Allen, 212 Pa. Super. 314, 242 A.2d 901 (1968).
The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes and to preclude the inference that because he has committed other crimes he was more likely to commit the crime for which he is being tried.
In the instant case, Officer Barbera testified that he arrested appellant, Frank Bonnano, while appellant was in a federal prison. In Commonwealth v. Choice, 211 Pa. Super. 176, 235 A.2d 173 (1967), in a dissenting opinion to a per curiam affirmance, it was stated that evidence could not be admitted at trial which might have the effect of predisposing the jurors to believe the defendant guilty by virtue of previous police contact. 211 Pa. Super. at 180. In that case, the jury heard testimony that the defendant was arrested "at his parole office." The dissent reasoned that Trowery required that a new trial be granted. The testimony in the instant case that appellant was arrested while in federal prison violates the principles of Trowery.
The judgment of sentence is vacated and a new trial is granted.
WRIGHT, P.J., would affirm on the opinion of Judge BARBIERI.
JACOBS, J., dissents.