Com. v. Nocero

• Decision Date: 16 November 1990
• Citation: 582 A.2d 376,399 Pa.Super. 346
• Parties: COMMONWEALTH of Pennsylvania v. David Phillip NOCERO, Appellant.
• Court: Pennsylvania Superior Court

Page 376

582 A.2d 376

399 Pa.Super. 346

COMMONWEALTH of Pennsylvania v. David Phillip NOCERO, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 17, 1990.

Filed Nov. 16, 1990.

Ray H. Scott, Clarion, for appellant.

William M. Kern, Dist. Atty., Clarion, for the Com., appellee.

Before OLSZEWSKI, KELLY and BROSKY, JJ.

BROSKY, Judge.

This is an appeal nunc pro tunc from the judgment of sentence entered by the trial court following appellant's conviction for institutional vandalism. ¹

Appellant presents the following questions for review: (1) whether the trial court erred in prohibiting appellant from cross-examining the arresting police officer with regard to a similar incident of vandalism at Clarion University; (2) whether the trial court erred in failing to award appellant a new trial on the basis of after-discovered evidence; and (3) whether the trial court erred in failing to grant appellant's motion to arrest judgment where another individual subsequently admitted to committing the crime. For the reasons set forth below, we affirm the judgment of sentence.

The relevant facts of this case are as follows. On October 7, 1987, appellant, David Nocero, and a friend entered a student lounge located in one of the dormitories on the Clarion University Campus. In the lounge, Nocero and his companion encountered Elise Ditson, another Clarion student. After blowing cigar smoke into Ditson's face, the boys left the lounge area. Later that evening, Nocero, his friend, and a third boy returned to the area outside of the student lounge. Ditson observed the three boys standing near a water fountain which was located outside of the student lounge. After hearing a scraping sound, Ditson noticed that the water fountain was pulled away from the wall and that one of the boys, later identified as Jeffrey Scott Henry, was kneeling by the base of the water fountain while the others watched and laughed. According to Ditson, the boys pulled the water fountain away from the wall while Henry disconnected or broke the water line. As a result of the broken line, water flooded into the hallway and the elevator shaft of the dormitory. Following the commission of this destructive act, Nocero and his friends left the building.

Nocero was subsequently convicted by a jury on October 7, 1988. Post-trial motions were timely filed with the trial court, but were denied. Appellant was then sentenced on January 24, 1989. No direct appeal was filed on appellant's behalf at this time. On August 28, 1989, appellant filed a petition for post-conviction relief under the Post Conviction Hearing Act. ² After holding a hearing on appellant's petition, the trial court entered an order on April 4, 1990, ³ which reinstated appellant's right of direct appeal from the judgment of sentence. In accordance with this order, appellant timely filed a nunc pro tunc appeal with this court.

Appellant first argues that the trial court erred in prohibiting defense counsel from cross-examining one of the arresting officers with regard to another similar act of vandalism which occurred in the same dormitory two days after the incident for which appellant was convicted. In reviewing this issue, we observe that

'[t]he trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination or cross-examination of witnesses. Such matters are committed to the sound discretion of the trial judge.' ... Commonwealth v. Pittman, 320 Pa.Super. 166, 172-173, 466 A.2d 1370, 1373 (1983) (citation omitted). Decisions regarding such matters will not be reversed on appeal absent a clear abuse of discretion. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984).

Commonwealth v. Grove, 363 Pa.Super. 328, 332-333, 526 A.2d 369, 371-372 (1987), allocatur denied, 517 Pa. 630, 539 A.2d 810 (1987). We shall address appellant's arguments with this standard in mind.

In support of his argument, appellant relies on the fact that the second incident of vandalism, which Scott Henry admitted to committing, ⁴ also involved a broken water line to a water fountain that was located in the same dormitory. In addition, appellant avers that he planned to introduce evidence to the effect that he was not in Clarion when the second offense was committed. Essentially, appellant argues that because of the similar nature of the incidents, and because he was not present at the time the second offense was committed, it was unlikely that he was the perpetrator of the first incident. We find appellant's reasoning to be erroneous, however.

The general rule in Pennsylvania is that "evidence of distinct crimes are not admissible.... However, evidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is relevant...." Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988). Thus, evidence of other crimes may be introduced to prove:

(1) motive;

(2) intent;

(3) absence of mistake or accident;

(4) 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

(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 [or in this case, that the accused did not commit] the other.

Lark, 518 Pa. at 303, 543 A.2d at 497. See also, Commonwealth v. Boyle, 470 Pa. 343, 359, 368 A.2d 661, 669 (1977) and Commonwealth v. Smith, 502 Pa. 600, 609, 467 A.2d 1120, 1125 (1983), for the proposition that evidence of other crimes or bad acts is admissible to establish that another person or persons had the requisite motive or were engaged in a common plan, scheme or design to commit the offense for which the defendant was accused. See also, L. Packel & A. Poulin, Pennsylvania Evidence § 405.2 (1987). In reviewing the above exceptions to the general rule, it is evident that the first four exceptions are unrelated to the issue in this case. Thus, our analysis must focus on whether there is such a logical connection between the crimes that proof of one will naturally tend to show that the same person committed the other.

In ascertaining the identity of the perpetrator of the offense, the Supreme Court has recognized that the evidence of the other like crimes must be

so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature .... [Moreover], '[t]here 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.'

Commonwealth v. Bryant, 515 Pa. 473, 478, 530 A.2d 83, 86 (1987) (emphasis in original), citing C. McCormick, Evidence § 190 (2d ed. 1972) and quoting Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 720-721 (1981). In addition, the Supreme Court has indicated that remoteness is a factor which must also be considered in determining the similarity of the crimes. See Commonwealth v. Clayton, 506 Pa. 24, 33, 483 A.2d 1345, 1350 (1984), appeal after remand, 516 Pa. 263, 532 A.2d 385 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988). In reviewing the above authorities, we therefore find the following factors to be relevant in determining whether evidence of the other uncharged offense or bad act is admissible: (1) the time lapse between the commission of the two crimes; and (2) the resemblance between the methodologies of the two crimes.

Application of the first factor to the present case reveals that the crimes occurred within two days of each other. This court has previously held that where two separate crimes are committed within one hour in the same geographic area, evidence of the uncharged crime is admissible. See Commonwealth v. Middleton, 379 Pa.Super. 502, 509-510, 550 A.2d 561, 564-565 (1988). However, where there is a time lapse of several years or months between the time that the offenses were committed, then evidence of the other crime has been held to be inadmissible. See Commonwealth v. Campbell, 342 Pa.Super. 438, 445, 493 A.2d 101, 105 (1985) and Commonwealth v. Bryant, supra. Unfortunately, we have been unable to discover a case involving a time lapse of two days. Given the facts present in this case, we believe that the lapse of two days between the commission of the first and second offenses was not such a lengthy period of time as to render evidence of the second offense inadmissible.

In addition to the time factor, we must also evaluate the methodologies used in the commission of the two crimes. Both of the crimes in this case involved the disconnection of a water line from the base of a water fountain. As stated by the trial court in its opinion, "ripping a water fountain from its base is not such a unique type of vandalism that the jury could infer [that] the same person did both acts. To this Court's knowledge[,] there is only one way to rip a free standing refrigerated water fountain from its mooring." See Trial Court Opinion, at p. 5. We are inclined to agree with the reasoning of the trial court, and find that the two crimes were not so distinctive or unusual as to be like a signature or the handiwork of the same individual.

Even if we were to agree with appellant that the two crimes were so nearly identical so as to be the handiwork of the same person, we would still find that the evidence was properly excluded by the trial court. First, we note that...