Commonwealth v. Boykin

Concurring Opinion by

Mr. Justice Boberts :

I agree that the trial court did not err in allowing the Commonwealth to introduce the oral confession of *32 the appellant admitting intentionally suffocating two other infants besides the deceased Bruce Carlisle. However, I believe that the majority’s application of Commonwealth v. Wable, 382 Pa. 80 , 114 A. 2d 334 (1955), to reach that result is inaccurate.

Wable stands only for the proposition that evidence of prior crimes is admissible where a common scheme, plan or design in fact exists. The prior criminal activity of the defendant is only admissible when, in conjunction with the crime for which the defendant is then on trial, “. . . it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or 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.” Id. at 84 , 114 A. 2d at 336-37 .

Evidence of prior crimes (under the common scheme, plan or design exception) is admissible where it tends “[t]o prove the existence of a larger continuing plan, scheme, or conspiracy, of which the present crime on trial is a part.” McCormick, Law of Evidence, §157 (1954 Ed.) (emphasis added) (footnotes omitted). Here, the Commonwealth did not prove, nor even attempt to prove, that the death of Bruce Carlisle was a part of any larger contvnwing plan, scheme or conspiracy. 1 Accordingly, the majority’s reliance on Wable is misplaced.

The general rule, “as stated by most courts, is that evidence of other offenses is inadmissible in a criminal *33 prosecution for a particular crime. This rule is qualified by a number of exceptions stated in terms of the capacity of the evidence to prove some specific fact or issue such as intent, plan, scheme or design. But since the range of relevancy, other than for the purpose of showing criminal propensity, is almost infinite, we think the rule may be phrased a little less mechanically. Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.” U. S. v. Stirone, 262 F. 2d 571, 576 (3rd Cir. 1958), rev’d. on other grounds, 361 U.S. 212 (1960). (Emphasis added.) (Citations omitted.) (Footnotes omitted.)

Thus, appellant’s oral confession, admitting two other infanticides, was admissible on grounds other than common plan, scheme or design, in that it was relevant in proving her “intent” to take the life of Bruce Carlisle. Appellant contended that the death of the child was accidental. On direct examination, appellant testified: “By Me. Shenkin: Q. Do you remember at 6:45 a.m. on 1-14-71, which would be just after the morning after you had given the written statement, did you tell Detective Dubiel that you held the baby against your shoulder knowing that it would smother? A. No, I did not. Q. When you held the baby were you smothering the baby? A. No, I wasn’t. Q. Did you mean to smother the baby? Did you want to? Was it your in tention? Mr. D’Ambrosio: Objection. I didn’t hear any answer to any of these questions. A. 1 didn’t understand the question. Q. If you don’t understand the question, answer that. When you held the baby did you intend to smother it? A. No, l did not.”

In light of appellant’s defense of accident, and her supporting testimony, it was permissible for the Commonwealth to introduce evidence tending to establish her felonious intent.

*34 It is well settled that . . when intent is an essential element of the offense charged, other offenses similar to and not too remote from the crime charged may be shown.” U. S. v. Laurelli, 187 F. Supp. 30, 33 (M.D. Pa. 1960), affirmed, 293 F. 2d 830 (3rd Cir. 1961), cert. denied, 368 U.S. 961 (1962). See also, McCormick, Law of Evidence, §157 (1954 Ed.); Commonwealth v. Kravitz, 400 Pa. 198, 217 , 161 A. 2d 861, 870 (1960), and the cases cited therein. As this Court stated in Commonwealth v. Novak, 395 Pa. 199, 204 , 150 A. 2d 102, 105 (1959): “Evidence to prove motive, intent, plan or design is admissible [citing cases].” (Emphasis added.) (Citations omitted.)

Further, as stated by Wigmore in discussing the “intent” exception to the general prohibition against the introduction of evidence of prior crimes: “It is not here necessary to look for a general scheme or to discover a united system in all acts; the attempt is merely to discover the intent accompanying the act in question ; and the prior doing of other similar acts, whether clea/rly a pwt of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based pwrely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satisfies our logical demand.” II Wigmore on Evidence, §302 (3rd Ed. 1940).

Thus, where as here, the crime (murder) involves the element of intent, the Commonwealth may be allowed, within the discretion of the trial court, to show other crimes in rebuttal (as was done in the instant case), particularly “after the issue [intent] has been sharpened by the defendants giving evidence of accident or mistake. . . .” McCormick, Law of Evidence, §157 (1954 Ed.).

I join in the result reached by the majority.

*35 Mr- Chief Justice JONES joins in this concurring opinion.

Robert Wible, one of the infant® whose death appellant confessed to, died four months prior to the demise of Bruce Carlisle. The other child, Brent Traverse, died approximately two years before Bruce Carlisle.