Com. v. Claypool

• Decision Date: 16 September 1983
• Citation: 317 Pa.Super. 320,464 A.2d 341
• Parties: COMMONWEALTH of Pennsylvania v. Daryl Nason CLAYPOOL, Appellant.
• Court: Pennsylvania Superior Court

Page 341

464 A.2d 341

317 Pa.Super. 320

COMMONWEALTH of Pennsylvania v. Daryl Nason CLAYPOOL, Appellant.

Superior Court of Pennsylvania.

Argued September 30, 1981.

Filed July 15, 1983.

Reargument Denied Sept. 16, 1983.

Frances S. Palmer, Hermitage, for appellant.

Charles S. Hersh, Asst. Dist. Atty., Mercer, for Commonwealth, appellee.

Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.

MONTEMURO, Judge:

This is an appeal from the judgment of sentence imposed on the appellant, Daryl Nason Claypool, for rape, ¹ involuntary deviate sexual intercourse ² and simple assault. ³ Appellant contends, inter alia, that the trial court erred in allowing the Commonwealth to introduce evidence of appellant's prior criminal conviction for rape. ⁴ The record before us supports the appellant's contention, and accordingly, we vacate the judgment of sentence and remand the case for a new trial.

The appellant's contention is centered around the admission of evidence concerning a prior criminal conviction for rape which was alluded to by the prosecutor in his opening statement, brought out in the testimony of the victim and further amplified in the examination and cross-examination of the appellant, and through the testimony of the appellant's wife as a rebuttal witness for the prosecution.

The facts giving rise to this matter occurred in the early morning hours of November 7, 1979. The appellant, a long distance truck driver, had been in Baltimore, Maryland picking up a load of steel. His wife, Patricia Claypool, was in the hospital undergoing minor surgery. Mrs. Claypool's sister, Susan Durney, had agreed to babysit for the Claypool children, Nason and Amy, ages 3 and 1 and 1/2 respectively. Mrs. Durney and the children were alone in the Claypool residence on the night and early morning in question.

At about 1:30 A.M., the appellant arrived home unexpectedly, pounded on the door, and was admitted by Mrs. Durney, who was wearing a long-sleeved flannel nightgown. The appellant and Mrs. Durney talked briefly while the appellant drank a beer from a six-pack he had purchased earlier. ⁵ Mrs. Durney then went upstairs to the bedroom in which the Claypool children were sleeping.

Shortly thereafter, she heard her name being called and went to the doorway of her room. The appellant was standing in the doorway of the other bedroom attired only in a T-shirt and briefs and was holding a gun; either a shot gun or a rifle. He pointed the gun toward her and told her to come into the bedroom. At first, she refused, but he repeated his demand and she entered the bedroom. Mrs. Durney repeatedly asked the appellant to put the gun down because she was scared, but the appellant refused and said to her:

"... better not try to get away or to scream or holler ... he would shoot me and anybody else who got in his way and hopefully that if the police came he would get killed too because he would never go to jail again."

Mrs. Durney testified that the appellant told her he had been in jail, a fact of which she was aware. He also told her that he had been in jail for rape, a fact of which she was not aware. She recounted appellant's words:

"He told me that him and another fellow were at his cousin's house and they had been drinking and they tied up his cousin and then they took the cousin's wife upstairs and that he was in jail for that."

She then testified that she was "scared to death because then I knew that that's what he was going to do to me." She also testified that the appellant made various other threats, ⁶ grabbed her wrists, threw her on the bed, pulled off her nightgown and spread her legs, leaving bruises. Appellant proceeded to engage in several acts of sexual intercourse with the victim, both vaginal and oral.

The appellant admitted having sexual relations with Mrs. Durney but claimed the acts were entirely consensual. He acknowledged having the gun while standing in the hallway, but claimed that he had taken it out while contemplating suicide and had forgotten he was holding it when he called to his sister-in-law.

Our scope of review in this matter is the determination of whether the trial court abused its discretion in allowing the admission of evidence of appellant's prior rape conviction. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977). The trial court's stated purpose in allowing the introduction of the evidence of the prior conviction was "to show why the will of Susan Durney was overcome to make the act of intercourse and possibly later involuntary deviate sexual relations to be without consent."

In Commonwealth v. Seigrist, 253 Pa.Super. 411, 385 A.2d 405 (1978), the trial court, sitting without a jury, allowed the treating physician of a rape victim to testify from a written report he had made of the incident. The report stated various attendant facts, including a reported statement by the defendant in which he "told the patient he had been in jail many times, lived in Lebanon, and jumped parole." Id. at 421, 385 A.2d at 410. This court upheld the lower court's holding that the testimony was admissible, stating:

Appellant's sole contention is that the italicized portion of the above quoted passage constituted inadmissible hearsay which was prejudicial to the appellant. Appellant correctly notes that the prosecutrix could have testified to what the appellant told her, not to prove the truth of the assertion that the appellant had been in jail many times, but rather to prove the fact of the assertion which was clearly relevant to the question of lack of consent.

Id. at 421, 385 A.2d at 410. In Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502, 503 (1980), the victim of a rape testified that the defendant said to her "that fifteen other young women had been murdered because they refused his order to undress." Id. at 371, 419 A.2d at 504. The court, relying on Seigrist, supra, ruled that the defendant's "admissions" were cogent evidence that his victims submitted only upon the threat of injury or death." Id. at 376, 419 A.2d at 596.

While these cases would allow testimony of prior criminal acts as relevant on the issue of the victim's consent, we do not think they control the present case.

A defendant's statements regarding his prior criminal acts used as threats to overcome the will of a victim may be used as evidence in the proper circumstances. However, countervailing principles inherent in our system of jurisprudence militate against the use of evidence which might tend to inflame or prejudice the trier of fact. The general prohibition against admission of evidence of a defendant's prior criminal acts is one manifestation of the judicial recognition of these principles:

One of our most fundamental and prized principles in the administration of criminal law is that a district crime, unless under special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that a person has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant. Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955); Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220, 1225 (1981).

The exceptions under which evidence of prior criminal acts is admissible are well established in the decisions of our courts. They include those cases where the evidence is introduced to prove: (1) motive; (2) intent; (3) 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 other; or (5) the identity of the person charged with the commission of the crime on trial. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Booth, supra. To this list is sometimes added an exception wherein the evidence is part of the res gestae of the charged offense. That is to say that "such evidence is admissible where 'such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the material development of facts.' " Commonwealth v. Brown, 462 Pa. 578, 591, 342 A.2d 84, 90 (1975) (quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932)); Commonwealth v. Stufflet, 276 Pa.Super. 120, 419 A.2d 124-25 (1980).

Our Supreme Court, in Commonwealth v. Ulatoski, supra, has established an additional barrier to the admission of prior crimes evidence even where its relevance has been established by its inclusion within one of the above exceptions. The Court determined that a trial court should exercise its discretion:

to exclude the other-crimes evidence, even when it has substantial independent relevancy, if in [its] judgment its probative value for this purpose is outweighed by the danger that it will stir such person in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial. [McCormick, Evidence, § 190 at 453-454] (Emphasis added).

Id. 472 Pa. at 63, 371 A.2d at 191 n. 11. This court has set forth the factors to be considered in this balancing tests as:

... on the one side, the actual need for the other crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of their other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmasting hostility.

Commonwealth v. Hude, 256 Pa.Super. 439, 445, 390 A.2d 183, 185-86 (1978) (quoting McCormick, Evidence, § 190 at 453). See also Commonwealth v. King, 290 Pa.Super. 563, 575, 434 A.2d 1294, 1300 (1981); ...