Com. v. Middleton

• Decision Date: 10 November 1988
• Citation: 550 A.2d 561,379 Pa.Super. 502
• Parties: COMMONWEALTH of Pennsylvania v. Wade MIDDLETON, Appellant.
• Court: Pennsylvania Superior Court

Page 561

550 A.2d 561

379 Pa.Super. 502

COMMONWEALTH of Pennsylvania v. Wade MIDDLETON, Appellant.

Superior Court of Pennsylvania.

Argued June 7, 1988.

Filed Nov. 10, 1988.

Thomas J. Turner, III, Philadelphia, for appellant.

Peter Ainsworth, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before McEWEN, OLSZEWSKI and CERCONE, JJ.

McEWEN, Judge:

We here consider an appeal from the judgment of sentence imposed by the distinguished Judge David N. Savitt following a finding by the jury that appellant was guilty of first degree murder and robbery. The jury was subsequently unable to agree upon the sentence for murder and, as a result, the trial court removed the matter from the jury, and following the denial of post-verdict motions, sentenced appellant to serve a term of life imprisonment for murder, and a consecutive term of imprisonment of from eight years to sixteen years for robbery.

In the early morning hours of December 20, 1984, an assailant knocked Nancy Bolden to the ground after she apparently resisted an attempt to take her purse. The assailant then dragged her into an alley, stripped her of most of her clothing, and brutally beat her, before leaving her partially clothed body covered by a trash bag. Approximately three hours later, appellant Middleton was arrested for the robbery of Ethel Henry approximately four to six blocks away from the area where the assault on Nancy Bolden had occurred. Ms. Bolden died some three months later from the injuries inflicted by her assailant, and approximately fifteen months later, appellant was arrested and charged with her murder.

Middleton first alleges that the trial court erred in denying his motion to dismiss due to prearrest delay. He argues that the Commonwealth intentionally, unreasonably or recklessly delayed his arrest and that he was harmed by the lengthy delay between the date of the crime and his arrest. Specifically, he claims he suffered a loss of memory, rendering him unable to effectively present his testimony and the testimony of others in support of his alibi defense. See Commonwealth v. Berry, 355 Pa.Super. 243, 513 A.2d 410 (1986). Furthermore, he contends that the Commonwealth was, within six months of the date of the crime, in possession of all the evidence used at trial.

The Commonwealth maintains that an investigatory delay, if reasonable, does not violate due process, even if a defendant is actually prejudiced in the preparation of his defense as a result of the delay. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). The Commonwealth argues that Middleton failed to substantiate his claim that the prearrest delay prejudiced him in his defense. The prosecution relies for this argument upon the testimony of appellant himself at the pre-trial hearing of May 18, 1987, a hearing held some two years after the death of the victim and almost ten months after the arrest of appellant. Appellant, at the pre-trial hearing, testified in detail as to his activities during the afternoon of December 19, and the early morning of December 20, when the victim was beaten and robbed. The Commonwealth also argues that the arrest of appellant some fifteen months after the death of Ms. Bolden could not have been unexpected by appellant since at the time of his arrest for the robbery of Mrs. Henry, appellant was informed by the police that he was a suspect in another crime, his clothes were taken for analysis, and patches of his hair were secured for tests. Further, within three months of Ms. Bolden's death, appellant was interrogated by the police about the crime and even underwent lie detector tests, at which time he definitely became aware he was a suspect in the instant murder. While the actual arrest was delayed a further twelve months, appellant was, nonetheless, pursuing his defense since, he testified, his sisters undertook efforts to locate the two young ladies and the bartender in the club where he asserted he had been drinking when the instant murder took place.

The Commonwealth asserts that it conclusively established that any delay prior to Middleton's arrest was a necessary result of a careful and thorough investigation. Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976) (defendant not denied due process despite four year prearrest delay because police encountered difficulty in putting together the case and because defendant was on notice that he was a suspect). The detective in charge of the investigation of Ms. Bolden's death testified (1) that numerous pieces of evidence had to be sent to the FBI crime laboratories for analysis, (2) that interviews with potential witnesses had to be conducted, and (3) that the only eyewitness to the crime could not be located for several months.

Appellant urges that the trial court abused its discretion in finding reasonable investigatory delay because the Commonwealth's explanation for the delay was contradictory. However, the conclusion of the trial court that the delay was reasonable is a determination which is within the discretion of the trial court, whose decision may not be reversed unless there is insufficient evidence in the record to support the court's determination. Our review of the record reveals an ample evidentiary basis to support the trial court's finding that the delay was reasonable. Therefore, this argument is rejected.

Appellant also contends that the admission of evidence of the attack on Ms. Henry constituted reversible error because the circumstances of that robbery were not so similar to the instant case as to identify them both as the product of a "common scheme." The trial court, however, found that the evidence of the attack upon Ms. Henry was relevant and admissible on the issue of identification based upon the following similarities between the two crimes: (1) the attacks occurred within three hours of each other; (2) near alleyways which were only six blocks apart; (3) both victims were women, (4) walking alone, and (5) while Ms. Henry was elderly, Ms. Bolden appeared to be elderly; (6) both victims were called "bitch" by the attacker; (7) an eyewitness to the attack upon Ms. Bolden identified the black coat found near the scene of the attack upon Ms. Henry as the same or similar to the one worn by the perpetrator of the attack upon Ms. Bolden; (8) both the black coat and Ms. Bolden's body, when discovered, were covered with excrement, as was appellant when he was arrested, during the attack upon Ms. Henry, three hours after the attack upon Ms. Bolden; during the attack upon Ms. Henry; and (9) when arrested as a result of the attack upon Ms. Henry, appellant had in his possession articles belonging to Ms. Bolden.

Our Supreme Court, in Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980), specifically addressed the issue we here confront, namely, admissibility of evidence of another crime in a factual setting quite resemblant of the instant appeal:

On April 2, 1976, appellant, Stanley Brown, and his accomplice, Harvey Tabron, agreed to obtain money by robbing an insurance agent working in the neighborhood. Appellant armed himself with a manriki (a two and one half foot chain used as a weapon in the martial arts) and Tabron was armed with a .22 caliber handgun. At approximately 12 noon, John Gallen, an employee of the Department of Housing and Urban Development, was inspecting houses in the 2800 block of Bonsall Street in the City of Philadelphia. Laboring under the mistaken belief that Mr. Gallen was an insurance agent, appellant and Tabron approached him and demanded money. They took from him a camera, two boxes of film, pictures, $16.00 in currency and a wristwatch. They then proceeded to West Sergeant Street.

At approximately 1 p.m. on the same day, the decedent, Carmen Falanga, an insurance agent, was collecting debits in the 2400 block of West Sergeant Street. As Mr. Falanga was entering his automobile, appellant grabbed him by the neck with the manriki and pushed him towards Tabron who had a gun drawn. The decedent began to struggle with appellant and drew a gun. The victim fired a shot at Tabron whereupon Tabron returned the fire, striking and killing the decedent.

Appellant complains that the testimony relating to the robbery of John Gallen was improperly introduced at his trial. He argues that this testimony was not only irrelevant but also highly prejudicial.

" 'It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant's prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that 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. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence' ..."

Commonwealth v. Spruill, 480 Pa. 601, 606, 391 A.2d 1048, 1049-50 (1978) quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975). See also Commonwealth v. Clark, 453 Pa. 449, 309 A.2d 589 (1973).

However, where the evidence is relevant, the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975). Thus, evidence of other crimes has been admitted where that evidence tends to prove motive or intent, Commonwealth v. Terry, 462 Pa. 595, 600, 342 A.2d 92 (1975), absence of mistake or accident, Commonwealth v. Peterson, 453 Pa. 187, 197-8, 307 A.2d 264, 269 (1973), common scheme, plan or design (embracing commission of two or more crimes so related to each other that proof of one tends to...