Admission of Evidence of Similar Crimes, Behaviors, and/or Acts; Relevance
Commonwealth v. Gill, 158 A.3d 719 (Pa. Super. 2017), allocatur granted Dec. 20, 2017, appeal docket 65 WAP 2017
Gill was charged with burglary, theft by unlawful taking, receiving stolen property, criminal trespass, terroristic threats, tampering with or fabricating physical evidence, and intimidation of witnesses arising from a burglary in 2013 where $40,000 in one hundred dollar bills had allegedly been removed from the victim’s home.
Gill filed a motion in limine for the admission of evidence of similar crimes, behaviors, and/or acts. Specifically, Gill sought to admit evidence of a subsequent burglary of the victim’s residence in June 2016. Gill argued that the 2016 burglary incidents appeared to be identical to the 2013 burglary, for which he was charged, raising a serious question as to the identity of the perpetrators of the 2013 burglary. Gill noted the following similarities between the 2013 and 2016 burglaries:
- The alleged amount stolen is again approximately $40,000[.00];
- The money is again allegedly stolen from a Sentry 1106 safe (lockbox);
- The alleged perpetrator in the June 23, 2016[,] crime is alleged to have used the key to gain access to the safe/lockbox;
- There were no signs of forced entry as is believed the perpetrators entered through a “typically unlocked” basement door;
- It is believed the perpetrator is someone the victim knew and who knew about the safe; and
- The crime is alleged to have occurred over a one month period.
Slip Op., at 4.
Therefore, Gill argued, evidence regarding the 2016 burglary of the victim’s home should be admissible in order to demonstrate that someone else, not Gill, committed the 2013 burglary. The Commonwealth countered that the 2016 incident was dissimilar and therefore irrelevant to the 2013 incident, summarizing the incidents as follows:
The case that we’re dealing with occurred, and actually we will be moving to amend the complaint to [the] date of August 22, 2013. At that time, [the victim] had,… about $40,000[.00] in a lockbox in his basement.
His wife had been admitted to the nursing home. He was making trips back and forth, and at that time there were two people who had access to his garage door code, his neighbor, [Ms.] Prather, and [Appellee], and that’s what he told the police.
At that time, there were no signs of forced entry into the home. There were also no signs of forced entry to the lockbox. He kept the lockbox in the basement. He kept his keys to the lockbox hanging on the wall. Someone knew exactly where the key was, opened the lockbox and took the money. That was the case in 2013.
If you fast forward to 2016, [the victim] was admitted to the hospital himself. He was having some issues with his heart. He did have a large sum of money, he indicated approximately around $40,000[.00] in his house at that time. That’s the only similarity in these cases.
The person who stole the money from him, as he reported in 2016, entered, according to the police report, by climbing onto a pile of wood that was located next to his second floor deck. They found evidence, because two of the logs had been knocked off, and they found a shoe with prints on the window ledge, and then entry in through a sliding glass door, which [the victim] kept unlocked, into the house. Once in the house, it was observed there were pry marks on the lockbox, and someone had first attempted to pry open the lock, and then after some time had located and used the key to open the box.
Four day[s] later, again there was an attempt to burglarize. There are additional pieces of lumber from the woodpile that are disturbed on the ground, additional footprints, as well as what the police believe to be a handprint on the downspout, but at this point, [the victim] locked the sliding glass door, and there was forced entry into the basement. There was splintered wood found there, the strike plate was missing, and there was evidence that someone had broken into the basement by force. Again, had opened the lockbox this time using the key. No additional signs of forced entry, because they knew at that point where the key was and there was no money in the box at this time.
Slip Op., at 7-8.
The trial court granted Gill’s motion in limine to allow admission of evidence related to the 2016 burglary and directed the Commonwealth to provide Gill with all reports, statements, and investigatory files related to the 2016 burglary. The Commonwealth appealed, arguing that the 2016 burglary incidents do not bear a “highly detailed similarity” to the 2013 burglary and are not relevant to prove another individual committed the 2013 burglary.
On appeal, the Superior Court acknowledged that evidence which tends to show that the crime for which an accused stands trial was committed by someone else is relevant and admissible. However, the court explained, admission of such evidence is only proper after consideration of the following factors establishing the evidence’s relevance and probative value as set forth in the court’s decision in Commonwealth v. Palagonia, 868 A.2d 1212 (Pa.Super. 2005):
1) the lapse of time between the commission of the two crimes; and
2) the resemblance between the methodologies of the two crimes.
Thus, even if the time lapse between commission of the crimes is brief…, the evidence is not admissible unless the nature of the crimes is “so distinctive or unusual as to be like a signature or the handiwork of the same individual.”
Slip Op., at 11.
Additionally, the Pennsylvania Supreme Court recognized in Commonwealth v. Bronshtein, 691 A.2d 907, 916 (Pa. 1997) that:
the issue is whether there was a logical connection between the two crimes in question that would allow admission of this evidence to prove the identity of the perpetrator. The probative value of the degree of similarity of the crimes is inversely proportional to the time period separating the crimes.
Slip Op., at 11.
Applying these factors to the 2013 and 2016 burglaries at issue, the Superior Court emphasized the remoteness in time between the 2013 and 2016 incidents, as well as the differing conduct in gaining access to the house – the 2013 burglary, entry to the house was through the garage door keypad and there was no use of force and in the 2016 burglary, tools and/or force was used to access the house and attempt to open the lockbox. Based on these facts, the court concluded that the 2016 burglary incidents and the 2013 burglary incident were not so “highly similar, distinctive, or unusual as to reveal the handiwork of an individual,” regardless of the fact the burglaries involved the same residence, and similar amounts of money taken. Id., at 11-12.
Based on this reasoning, the Superior Court held the trial court erred in granting a motion in limine to allow evidence of a 2016 burglary in appellee’s trial for the 2013 burglary.
The Pennsylvania Supreme Court granted allocatur on the following issue:
Whether absent of [sic] finding the Court of Common Pleas acted with manifest unreasonableness, partiality, prejudice, bias, or ill-will, the Superior Court of Pennsylvania erred in finding evidence of another burglary committed against the same victim, at the same location, also without the use of forcible entry, and also utilizing the same key to unlock the same lock box containing the same alleged amount of money taken from the same victim (3) years after the instant alleged burglary is not relevant to the defense of the crime for which Petitioner is charged and tends to prove a common scheme, plan, or design rendering the evidence admissible as evidence of similar crimes, behaviors, and/or acts.