Commonwealth v. Blady

LIPEZ, Judge:

In a jury trial, defendant was convicted of arson-endangering property, 18 Pa.C.S. § 3301(b)(1), risking catastrophe, 18 Pa.C.S. § 3302(b), and criminal mischief, 18 Pa.C.S. § 3304(a)(1). Post-verdict motions were filed and denied, and judgment of sentence entered. In this appeal from that judgment of sentence,¹ we reverse and grant a new trial, because we agree with defendant’s contention that the court below erred in admitting testimony concerning an arson defendant committed in New Jersey in 1965 as substantive proof of the crimes charged in this trial.²

The charges in this trial arose out of a fire on October 5, 1978 at the Petto Allen Inn in Honesdale, Pennsylvania. A detective from the Morristown, New Jersey police department testified that on December 21, 1978 defendant confessed to setting this fire. The Commonwealth then attempted to elicit from the detective testimony concerning defendant’s arson conviction in New Jersey for á fire he confessed to setting at the Hotel Revere in Morristown on May 22, 1965. Over defense objection, the court below admitted this testimony.

The general rules applicable to testimony of this type have been stated by our Supreme Court:

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. Commonwealth v. Fortune, 464 Pa. 367, 373, 346 A.2d 783, 786 (1971) [sic]; Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334, 336 (1955). The general rule, however, allows evidence of other crimes to be introduced to prove (1) motive; (2) intent; (8) 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 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. Commonwealth v. Fortune, supra; Commonwealth v. Wable, supra. Thus, although the law does not allow use of evidence which tends solely to prove that the accused has a “criminal disposition,” evidence of other crimes is admissible for certain purposes if the probative worth of this evidence outweighs the tendency to prejudice the jury.

Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981).

The Commonwealth argues that the similarities between the 1965 New Jersey fire and the 1978 Pennsylvania fire were so great as to show a distinctive modus operandi.³ Commonwealth v. Morris, supra, specifically formulated the requirements for admissibility of such evidence⁴ as follows:

As Professor McCormick explains, a distinctive and unusual “modus operandi” appears where “crimes of the accused [are] so nearly identical in method as to earmark them as the handiwork of the accused.” He adds a further clarification:

Here much more is demanded then [sic] the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual or distinctive, as to be like a signature.

McCormick on Evidence, § 190 at 449 (2d Ed. 1972). The Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others. See, Commonwealth v. Fortune, supra.

Id., 493 Pa. at 176, 425 A.2d at 720-21. Cf. Commonwealth v. Rini, 285 Pa.Super.Ct. 475, 480, 427 A.2d 1385, 1388 (1981).

The Commonwealth relies on the following similarities in the evidence concerning the 1965 and 1978 fires: (1) the defendant was angry before the fires were started; (2) defendant was a resident at each hotel at the time it had the fire; (3) both hotels were old and had wooden floors, on which the fires were started in a pile of papers; (4) defendant returned to his room after each fire; (5) after returning to his room, defendant attempted to help others get out of the hotel; and (6) after both fires, defendant re-entered the hotel after initially leaving. Defendant responds by pointing out some dissimilarities,⁵ but even without considering these, we do not believe the Commonwealth’s six similarities are a sufficiently distinctive modus operandi to constitute defendant’s “signature.” Only the third even relates to the manner of commission of the crime, and lighting a pile of papers on a wooden floor is hardly a distinctive method of setting fire to an old building.

The fourth, fifth and sixth similarities are conduct the defendant would be equally likely to engage in, whether he had set the fires or not. The fact that the defendant was angry at the time of both fires is at least of some help to the Commonwealth’s position, but in neither case was the defendant angry at anyone or anything connected with the hotel. Essentially, the Commonwealth contends that the defendant’s unique “signature” consists of being a hotel resident, who is angry at something unrelated to the hotel at the time the hotel has an arson committed by very common means. This is not such a high correlation in details as to make it very unlikely that anyone other than the defendant could have committed the crime, as required by Commonwealth v. Morris, supra.

The connection between the fires is further weakened by the fact that they took place thirteen years apart in two different states. Of course, we agree with the Commonwealth’s assertion that the length of time between incidents is merely a factor to be weighed in light of the circumstances of each case. See Commonwealth v. Ulatoski, 472 Pa. 53, 63, 371 A.2d 186, 191-92 (1977), reh’g den’d. The Commonwealth’s copious brief discusses numerous cases, in some of which the prosecution was permitted to show prior criminal activity occurring even more than thirteen years before the crime for which the defendant was being tried, but all these cases involved clearly distinguishable facts.

In Commonwealth v. Patskin, 372 Pa. 402, 413, 93 A.2d 704, 710 (1953), evidence that the defendant had beaten his wife was admissible as evidence of motive and malice against the same victim when he was accused of murdering her seventeen years later. The “modus operandi” exception was not involved. Cf. Commonwealth v. Ulatoski, supra. In United States v. Woods, 484 F.2d 127, 134 (4th Cir. 1973), evidence was admitted that six infants under the defendant’s care had died of cyanosis as much as twenty-four years before the infant cyanosis murder with which she was charged, but the court specifically grounded admissibility on the great number of similar incidents involved. In People v. Peete, 28 Cal. 306, 169 P.2d 924 (1946), the allowance of evidence of a 1920 murder to prove the defendant committed a 1944 murder, was based not only on stronger similarities than we have between the fires in this case, but also on the fact that the defendant in Peete had been in prison from shortly after the 1920 murder until shortly before the 1944 murder. We shall not discuss the many other cases cited by the Commonwealth. Many involve much shorter time intervals, and all are factually distinguishable, like Patskin, Woods and Peete.

Judgment of sentence reversed, and a new trial ordered.

WICKERSHAM, J., files a dissenting opinion.

1 . While the appeal is properly before us because judgment of sentence was entered, the trial judge did not file an opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925(a). There is no point in remanding for an opinion, however, since the trial judge had left the bench by the time this appeal was heard. Cf. Nigrelli v. Cody, 281 Pa.Super.Ct. 156, 161, n.2, 421 A.2d 1195, 1198, n.2 (1980), rearg. den’d.

2 . Because of our disposition, we need not consider defendant’s other claims for a new trial: (1) that his confession should have been suppressed as a product of coercion; and (2) that his confession should have been suppressed because of violation of the “six-hour rule” of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Cf. Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980), rearg. den’d (1981) (involving same defendant, but different fire).

3 . The Commonwealth’s brief also makes frequent mention of the “common scheme” exception, which is easily confused with the “modus operandi” exception, courts and litigants frequently using one phrase when they mean another. See, e.g., Commonwealth v. Kjersgaard, 276 Pa.Super.Ct. 368, 372-75, 419 A.2d 502, 504-05 (1980). Some factual situations do implicate both, but the two exceptions are quite distinct. The distinction can be easily illustrated. This case, for example, could involve the common scheme exception if there were evidence that both hotels were owned by the same person, and that defendant held a long-standing grudge against that person. There is no such evidence here, however, or any other evidence of a common scheme, and therefore we shall not discuss this exception in the text, despite the numerous references to it in the Commonwealth’s brief.

At one point in the court below, the prosecution also made mention of the so-called “identity” exception, but as McCormick has observed, “[A] need for proving identity is not ordinarily of itself a ticket of admission, but that the evidence will usually follow, as an intermediate channel, some one or more of the other theories here listed. Probably the second (larger plan), the third (distinctive device) and the sixth (motive) are most often resorted to for this purpose.” McCormick on Evidence (2d ed. 1972) § 190, p. 451 (footnote omitted). See also United States v. Woods, 484 F.2d 127, 134 (4th Cir. 1973).

4 . Although Morris involved joinder of charges for trial, the Court adopted the same standards as applies to admissibility of prior criminal acts under the “modus operandi” exception, so the Morris formulation of that standard is directly applicable here.

5 . Dissimilarities on which defendant relies are: (1) in one case, defendant was angry at a girl friend, while in the other, he was angry at the world in general; (2) one fire was started with matches, the other by throwing a cigarette; (3) one fire was set in a closet, and the other was not; (4) one fire was in the first floor lobby, the other in the basement; and (5) an alarm was pulled in one case, but not the other.