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Use of "Similar Crimes" Evidence by the Defense

In Pennsylvania, we tend to hear about how the prosecution is able to use “evidence of prior bad acts” to show the defendant’s character only if it’s being used to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). However, like the Commonwealth, the defense may also use evidence of prior crimes that the victim has made that tend to show that the identity of the defendant that is alleged to have committed the offense may be inaccurate. This is based upon the theory that a prior report of a crime that is substantially similar to the instant one is relevant to show for the defense that the defendant may have been improperly identified.

In Commonwealth v. Gill, —- A.3d —-, 2019 WL 1348188 (Pa., March 26, 2019), the defendant was charged with having committed a burglary of his neighbor’s home in 2016. There was also a prior burglary reported in 2013. Those facts were similar in that: (1) approximately $ 40,000 in stolen money; (2) money stolen from a safe/lockbox; (3) a perpetrator, perhaps known by [the victim], who used a key to access the safe/lockbox; (4) no sign of forced entry; rather, the perpetrator entered the home through a door that [the victim] typically kept unlocked; (4) a perpetrator who knew about the safe/lockbox; and (5) a crime that occurred within a one-month time range. It was on this basis that the Pa. Supreme Court determined that the trial court did not abuse its discretion in allowing the defense to present such testimony.

Practice Tip: From a practical perspective, during the formal discovery process, defense counsel should also likely be seeking any and all evidence of prior crimes or acts reported by the victim of a similar nature to the instant offense.

If you’ve been charged with a serious offense, such as a burglary, you need a knowledgable, seasoned defense attorney at your side. Contact the firm of Shaffer & Engle for a free case review and consultation.