Commonwealth v. Webb , 237 Pa. Super. 131 ( 1975 )

Concurring Opinion by

Jacobs, J.:

The majority concludes that the failure to raise an insanity defense at an unrelated trial 18 months earlier, for a separate offense occurring 33 months earlier, is evidence admissible to rebut appellant’s defense of insanity raised in the instant case. I cannot accept this contention.

“Any analysis of the admissibility of a particular type of evidence must start with a threshold inquiry as to its relevance and probative value.” Commonwealth v. McCusker, 448 Pa. 382, 391, 292 A.2d 286, 289 (1972). Evidence to be relevant must tend to prove or disprove the existence of a particular material fact. “[T]he most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence?” McCormick, Handbook of the Law of Evidence, 437 (2d ed. 1972) (emphasis original). See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892) ; People v. Warner, 270 Cal. App. 2d 900, 76 Cal. Rptr. 160 (1969). Relevant evidence must have probative value and in some degree advance the inquiry. Commonwealth v. Jones, 459 Pa. 62, 327 A.2d 10 (1974). Evidence will be admissible if it “tends even somewhat remotely to show that a fact in controversy did or did not exist.” 1 Wharton’s Criminal Evidence 287 (13th ed. 1972). In my opinion the rebuttal testimony offered by the Commonwealth in the instant case failed to meet even this test.

The issue is not one of temporal remoteness, that is, whether evidence that the appellant was sane 33 months prior to the time in question is relevant. The question is even further removed, it is whether the failure to raise an insanity defense at such a prior time in answer to a different offense is relevant to refute a present claim of insanity. I cannot find that such a fact has any probative value whatsoever in the instant proceeding.

However, although objection was made at trial, defense counsel did not raise this issue in post-trial motions. Therefore, it cannot be considered on appeal, Benson v. Penn Central Transp. Co., 463 Pa. 37, 342 A.2d 393 (1975), and the judgment must be affirmed.

Watkins, P.J., joins in this concurring opinion.