*1 witnesses, and, in clos- cross-examine the Commonwealth’s certain ing argued remarks to the weaknesses jury, eye and the lack of against appellant circumstantial evidence that, regard witnesses to the crime. Counsel testified strategies, appellant to the to confer over defense ability that when and lucid. He further testified competent who and stead- knowingly confronted with a defendant such refrained refused to consider an defense he fastly insanity developing from such tactic.
Trial counsel
have broad discretion
inherently
tactics employed.
determine the course of defense
Common
282,
(1980).
490 Pa.
Order affirmed.
Argued Oct. 1980. 30, 1981. Decided Jan. *4 Chief, Div., Baker, Karl Asst. Packel, John Appeals W. Defender, Philadelphia, appellant. Div., Cohn, Lawler, Chief, Andrew Appeals
Robert B. Philadelphia, for appellee. J., ROBERTS, NIX, LARSEN, O’BRIEN,
Before C. KAUFFMAN, FLAHERTY and JJ. OF THE COURT
OPINION NIX, Justice. Morris, by jury Bernard was convicted of two
Appellant, prison robberies sentenced to consecutive terms stemmed from Although of three the robberies two years. days apart five and there separate incidents which occurred appellant for each robbery, was a information in one his motion for proceeding; tried for both offenses on the two informations denied. Post- separate trials denied, and the judgment verdict motions were also Court, divided evenly Superior sentence was an affirmed granted A.2d 653. We Pa.Super. appellant’s petition propriety for allowance of to address the appeal grant the trial refusal to the motion for severance. judge’s
I. m., approximately p. On 6:30 Geraldine January her arrived at Seawright public two small children where As housing apartment building they they lived. entered, a did not know addressed them in a they man whom into where he friendly lobby manner and followed them man while the waited for an spoke group a second *5 minutes, ten Mrs. approximately elevator. After a wait of Seawright, her children and the two men walked to since adjoining building to use an elevator there apartment all with breeze- buildings floors of the two were connected The from the elevator on ways. departed second man third Seawright pushed floor. Mrs. the button the tenth floor the twelfth floor but- remaining pushed and the man floor, eighth pushed ton. Somewhere around the the man a Mrs. emergency stop holdup. button and announced reject- no Seawright money. insisted that she had man ed Mrs. offer of her and struck her Seawright’s purse while searching money. several times inside her brassiere At this had been knocked to the floor point, Seawright Mrs. and held there the man’s foot the side of her resting on face. The man threatened to kill the children and grabbed the face of Mrs. Seawright’s daughter. During this time he kept one hand in his as if a In pocket concealing weapon. her Mrs. struggle, Seawright managed to de-activate the button, emergency stop and the elevator door opened at tenth floor. The man again struck and searched Mrs. Sea- wright, change found a her purse containing inside $95.00 elevator, brassiere and ran from the through breezeway, into the adjoining Mrs. building. Seawright went to the apartment Scott, relative a Craig housing authority and police arrived, Housing police officer. and she city gave and them a of the robber. description
Five after the first days robbery, January m., shortly p. Rodgers before 7:00 Mrs. Carrie her four-year-old waiting son were the same for an building elevator. Two other women were also for the waiting elevator, and two men talking nearby. were Mrs. Rodgers, son, women, her the two one of men boarded the elevator. The two got women off at lower floors. Mrs. Rodgers but, pushed the eleventh floor button for some her, reason unknown to the elevator stopped at ninth floor. The man held the open door his knee and announced holdup. When she said she did not have any the man money, replied that he would have to search her. a small amount of cash He found food her stamps tried to but in her brassiere. He then take pockets nothing *6 Rodgers young her leather coat. When Mrs. her son to told father, wearing his the the hat she to get gag man used coat, taking her. When he off her he ran succeeded from elevator, breezeway, through adjoining into building. housing authority police report She went to the of gave description and the robber. robbery Scott, on of Mrs. Seawright’s description Officer the basis her, of the man who robbed had decided that a man named “Boonie”, He might appel- “Boonie” be the robber. asked herein, go him to Mrs. house. En Seawright’s lant with route, market where wife the two at the Scott’s had stopped where was also at that time. Mrs. gone Rodgers Mrs. appellant identified the man who Rodgers immediately as 10, January her. This identification occurred on had robbed 1975, days Rodgers Appellant three after the robbery. arrested, at a Mrs. also identified line-up Seawright as the who had robbed her earlier. appellant man
II. Pennsylvania Rule Rules of Criminal 219(b) of part, Procedure in relevant that “two or more provides, in the if may charged offenses . . . be same indictment they ” Although are of the same or similar character. . . . offenses, of rule this Court has applies specifically for trial of found it consolidation equally applicable informations.1 separate indictments or Commonwealth 690, Lasch, 573, (1975); Pa. 464 347 A.2d Moore, (d) 317, (1975). 463 Pa. A.2d 850 of 344 Subsection court, motion, “the its provides 219 own Pa.R.Crim.P. order or on of a trials application party, counts. . ..” Joinder of or information is the act
1. offenses in an indictment subject by prosecutor, is the to review the court. Consolidation procedure information are which more than one indictment or brought together single act of for trial. Consolidation is the Comment, court. as a Violation of an Accused’s Joinder Counts Silent, Temple (1968). Right to Remain 41 458 L.Q. 171 propriety It is well that the consolidat established ing is a matter of discretion separate indictments trial trial and the of this discretion will judge, exercise only preju reversed for manifest abuse of discretion or dice clear injustice to the defendant. Commonwealth v. Moore, 317, 320, 850, 463 Pa. (1975); 344 A.2d 852 Common Patrick, 437, 445, 295, wealth v. (1965); 416 Pa. 206 A.2d 298 Banmiller, 132, rel. 129, Commonwealth ex Bolish v. 480, 151 A.2d 481 (1959); Commonwealth ex rel. Spencer v. Ashe, 799, 801, Pa. denied, 364 71 A.2d cert. (1950). U.S. S.Ct. L.Ed. 1390 The question to be addressed in this case proper standard exercise the trial court’s discretion when the defendant has moved for from relief an asserted prejudicial consolida *7 tion. justification traditional for permissible joinder
of or offenses consolidation of appears indictments to be the judicial from economy single results a trial. The argument against or is joinder consolidation that where a offenses, defendant is tried at one for trial several several kinds of prejudice may (1) occur: The defendant be may defenses, confounded in presenting as where his to defense others; one charge is inconsistent his defenses to the (2) the jury use the of evidence one of the to offenses infer a disposition criminal on of and the basis that infer ence, offenses; convict the defendant of the other (3) the jury may cumulate the evidence of the various offenses guilt when, find if the of evidence each offense had been considered separately, it would not so find. Commonwealth Lasch, 573, 585, 690, 464 Pa. 347 A.2d (1975); 696 Com Peterson, monwealth v. 264, 307 A.2d 267 (1975); States, Drew v. United 331 F.2d 88 (D.C.Cir. 1964). Thus in at a arriving meaningful standard to guide discretion, the trial court in its exercise of and to permit appellate courts to determine whether the trial court abused discretion, this weigh we must of possibility prejudice and injustice by caused the consolidation against the consid judicial eration of economy.
172 Peterson, a of this supra, plurality2
In Commonwealth v.
in a
deci-
factors
court’s
Court held that
determinative
whether “the evidence of each
sion to
indictments are
sever
not have been admissible in
crimes would
of
particular
[the]
othér,”3 or
“the
is
whether
evidence
separate
trial
jury
of
by
danger
capable
separation
of
that]
[so
this test to the
present.
Applying
is not
confusion
them,
that
Eagen
although
Justice
concluded
facts before
each
have
particular
crimes would not
evidence
other,
in a
trial
was
joinder
been
for the
separate
admissible
evidence
crimes was
permissible
as to
simple
capable
clear
be
sufficiently
separation
by
Consolidation
the two indictments
jury.
Justice
con-
proper.
Pomeroy
therefore found
Mr.
result,
only
curred in the
but
because he
satisfied
219(b),
to-
test of Pa.R.Crim.P.
“transactions connected
scheme
gether
plan,”
or
common
or
constituting parts
unnecessary
had been met. He
“found
specifically
Rule 219
permis-
decide whether
of offenses under
scheme, plan
design
scope
sible
of the common
beyond
past
rule that a man’s
miscon-
exception
evidentiary
to the
conduct
a later
establishing
duct is
relevant in
his
not
Id.,
Pa. at
A.2d
occasion.”
[Footnote omitted].
Roberts,
at 272.
Justice
dissenting opinion,
joined
In his
Manderino,
this
found it “both anomalous
writer and Justice
two
consolidation of
crimes
contradictory
permit
crime would not be admissi-
trial when evidence of one
*8
Id.,
tried separately.”
ble at
of the other crime if
the trial
203,
453 Pa.
272.
rule
by
at
307 A.2d at
advocated
charged
sepa-
dissent
where “a defendant
two
offenses,
rate
so dissimilar that
would be
and distinct
of one
at a
error
admit evidence
offense
prejudicial
(now
Justice)
2.
Jones and then Justice O’Brien
Chief
Chief Justice
Justice) Eagen’s
opinion.
joined
(later
plurality
Justice
Chief
Justice
concurring opinion.
Pomeroy
Roberts
Justice
filed a dissent-
filed
opinion
by
ing
joined
Nix and
Justices
Manderino.
which
199,
Peterson, supra,
270.
Pa. at
A.2d at
3. Commonwealth
200,
Id.,
271.
4.
307 A.2d at
other,
have,
separate trial of the
the defendant should
on a
motion, an
timely
right
absolute
to severance of the offenses.”
.,
Id
These lines of division remained
in
unchanged
Common
Lasch,
wealth v.
supra.
Eagen,
Opinion
Justice
in his
in
Affirmance,
Support
joined by Justices O’Brien and Pom-
eroy, found that since evidence of the various offenses would
offense,
have been
in
separate
admissible
trial of each
joinder of the offenses was not an abuse of discretion.
Lasch,
dicta, however,
Commonwealth v.
In
supra.
Justice
Eagen
reaffirmed his view that
would be proper
“where the offenses
were
charged
separate and distinct and
where the
easily separable
Id.,
evidence was
by
jury.”
464 Pa. at
n.
Whenever
charged
a defendant is
with two or more sepa-
rate and distinct offenses and evidence of one could not be
admitted
offense,
at a
trial on the
other
defendant has an absolute
right
severance of the of-
fenses.
Lasch,
700-701.5
The Commonwealth us urges adopt the test set forth in plurality opinion Peterson, Commonwealth v. supra, and to hold that a defendant is entitled to appellate relief from a refusal to sever separate indictments for trial only where the defendant was denied a fair trial because jury could not have treated evidence relevant to each charge separately distinctly determining guilt as to each. Under this formulae even when the evidentiary test is not judgment 5. This writer also noted that the should be reversed. *9 evidence is nonetheless where the met, joinder permissible the of confu- jury danger and capable by of the separation sion is not present. of offenses reflects a on
Such a liberal rule It, however, fails resources. judicial concern for of economy misuse the jury may that the recognize possibility the As however, separable and distinct. no evidence matter Foutz, (4th F.2d 733 stated in United States v. Cir. 1976): be an appro- . well and distinct” test . . “simple measuring prejudice resulting the standard
priate cumulating the evidence. confusing from the jury's itself, however, the graver not mischief It does address limiting while its consideration of where the possible jury, relates, properly the to the crime evidence of crime but considers the guilty finds the defendant of of his another. finding probative guilt Id. n.3.
Moreover, judicial conservation of resources goals, while justice, efficient of estimable administration such a exposure higher does not of an accused to justify initially joined offenses are of “When probability prejudice. character, they are of same similar ground that not be admissible at a and evidence of one offense would other, effected saving trial time separate Foutz, supra trial is minimal.” United States at 738. joint judicial time can never be saving More importantly, given factfinding over the preference integrity proc- the one ess. When it is concluded that evidence of crime other, trial for the separate would not be admissible in the we in is irrelevant saying are effect evidence allow prejudicial in the second trial. To irrelevant and to influence a verdict in the name of prejudicial evidence judicial justice. is abhorrent our sense Addi- economy are joint differently defendants trials treated tionally, as a of the from those who receive trial result lack joint in the admission trial evidence uniformity in one of the single which would have been inadmissible had joinder. trials there been no *10 standard, Association’s of the American Bar Adoption offenses, an of the right absolute severance providing rule, however, is its This simplicity. because of appealing such raises of a question implementation the of whether of light heavy broad is feasible in the right severance Furthermore, in situa today’s demands on criminal courts. be tions where evidence of one crime would admissible a another, sever separate trial of a rule automatic requiring the impose ance an burden on administration would undue justice of without to the defend providing any real benefit Therefore, this opinion ant. of Court that is the is to middle course strikes the balance that be desired. III. standing It is a in this principle long Common crime, wealth except spe that evidence of a distinct under circumstances, cial is against inadmissible defendant who is being tried for crime another because commission of one proof another, crime is not of the commission and the effect of such is to evidence create prejudice against defendant in the Fortune, mind. Commonwealth jury’s 367, 373, 464 (1971); Pa. 346 786 A.2d Wable, (1955). A.2d general The rule, however, allows evidence other crimes intro to be motive; intent; duced to prove (1) (2) (3) absence of mistake accident; or scheme, (4) a or plan design embracing common commission two or more crimes so related to each other others; that proof of one prove (5) tends to establish the identity person charged com trial, mission words, of the crime on other where is there such a logical between crimes connection that proof one will naturally to show is tend that accused person who committed the other. For Commonwealth v. tune, Wable, supra; Thus, supra. Commonwealth v. al though the law does not allow use of evidence tends solely to prove that the has a “criminal disposition,” accused evidence of other certain crimes is admissible for if purposes the probative worth of outweighs this evidence the tendency to prejudice the jury. a defendant necessary are where safeguards
Similar trial, is tried for two or more offenses just be as insidious and prejudice to the may defendant cumulate the prosecutors of the temptation part rule we just great. adopt today as crimes bemay or indictments consoli joined offenses bemay defendant’s dated where the offenses show the modus operandi. unusual or distinctive and un- explains, Professor distinctive As McCormick where “crimes of the appears usual “modus operandi”: in method as to earmark so identical nearly accused [are] *11 of the accused.” He adds further them as the handiwork clarification: then mere repeated
Here much more is demanded the class, as same such repeated commission crimes the so or The device used must be unusual burglaries thefts. signature. to be like a distinctive as Evidence, (2d Ed.1972). 190 at McCormick on § The more the other crimes must show than are the same class as the one for which the defendant Rather, high be such a correlation tried. there must being the proof in the details of the crimes that that defendant very unlikely anyone that else but committed one makes See, the the others. Commonwealth v. defendant committed Fortune, supra. in the two
When the similarities robberies we view question, in we that in the instant case are satisfied was Both of the offenses were robberies. appropriate. in were these occurred elevators which Both of robberies buildings housing project. of the same adjoining located in robberies, In identified his both of these the assailant first waiting the an elevator in the victim while victim place five building. only days same The robberies took in apart. The at or about the same time robberies occurred m. The victim in each evening, p. between 6:30 and 7:00 case In each accompanied by was a woman small children. the designat the assailant entered the elevator with robbery ed elevator with that victim victim remained of the until other had left elevator. Both passengers In eighth were or ninth robberies initiated floor. case, holdup was a each the assailant announced that it of the During demanded from the victim. each money robberies, the of the victim and opened clothing assailant any possible money. searched their brassieres for hidden robbery, After each the assailant escaped through breezeway adjoining housing project. connection into an similarity timing, implementation and even the plan escape provides of each distinctive and robbery operandi justify unusual modus which would the conclusion perpetrator of one the perpetrator of the other. that It is difficult to conceive situation where the any proprie- We, therefore, ty joinder could be clearer. affirm learned trial ruling permitted court’s these robberies to be tried trial.6 single
Judgments of affirmed. sentence ROBERTS, J., a dissenting opinion. filed ROBERTS, Justice, dissenting.
Although the majority joined holds offenses for trial “where the offenses show the defendant’s unusual or distinctive modus operandi,” majority misap- *12 plies rule its to the facts of lacking this case. Manifestly that, here is evidence in the words of Professor McCormick (quoted by the device so majority), used unusual “[t]he [is] and distinctive be signature.” as to like a McCormick Evidence 190 at 449 ed. (Cleary 1972). Spaeth As Judge § observed, (now here joined by Judge Hoffman and Judge Cercone, Judge) President place, significant respects first the two
“[i]n robberies were dissimilar. On robber beat and threatened victims, his clothing, the other did not. One robber stole did stopped other not. One robber the elevator be- button, floors stop tween by pushing emergency objection relating alleged prior 6. We have also considered the to an Rodgers completely written statement of Mrs. and find it to be without merit. use did not apparently a floor and other it at stopped weapon had a or either button. One robber emergency place, In the second one, the other did not. feigned were the two robberies exist between similarities that did led to comment as sort of similarities just Peterson, v. A.2d 264 Pa. Commonwealth [453 fungible often a commodi- (1975)], robbery that ‘[a]rmed ’ in an Thus, apartment of robberies . . . if one thinks ty . ask, victim would one will what sort of complex, children, to choose —women such robber expect any such a expect Where would one strength? men of his own bottom, where he the elevator —at robber board boarded, victim or on another could wait until suitable floor, no control over who might where he would have nothing there was so distinctive board? In other words ‘as to like a signature,’ two here about robberies McCormick, ‘show that there is reason- supra, thereby offenses,’ both person the same committed probability able Peterson, supra.” Cercone, and would, Judges Spaeth, like I dissent and Hoffman, motion for trials appellant’s hold that granted. should have been