*1 “a fee tax, head ... charge persons traveling air commerce . . .” there can be no doubt whatsoever that both tax ordinances Sections 18-200 and amending 18-204 Philadelphia Code No. (Bill 207 and Bill No. are 287) in- constitutionally impermissible and must valid, be stricken. decree Court Common Pleas Phila- is reversed.
delphia Each party own costs. pay Mr. Justice Nix concurs the result. Appellant.
Commonwealth v. Peterson, *2 Eagen, J., 1973. Before March. Jones, O. Argued JJ. Manderino, Nix O’Brien, Roberts, Pomeroy, *3 Defender, Public Assistant Corbett, Jr., John H. and Defender, Public Assistant Dean, Mm J. John with appellant. George Defender, Public Boss, H. Attorney, Assistant District Eberhardt, Robert L. Attorney, for Duggan, District Mm Robert W. appellee. Commonwealth, July 2, 1973: Opinion Eagen, Mr. Justice togeth- Raymond
Appellant, Peterson, indicted, alleged accomplices, of armed counts er with several robbery, receiving goods and violation stolen suppress Pretrial motions Uniform Firearms Act. testimony on the trials and identification jury held and trial was indictments were denied two County. Allegheny Pleas of the Court Common appellant’s judge all demurrers to The trial sustained robbery. charges except On counts of armed two guilty. charges jury Mo- returned verdicts these for a new trial and Peterson denied, tions of from two concurrent three sentenced to terms years imprisonment. appeal An one-half seven per Superior in a curiam affirmance, Court resulted Superior Peterson, Pa. Ct. Commonwealth (1972). granted A. This Court allocatur.1 2d 741 pertinent The first indictment are as facts 10 a.m. on October men 24, 1970, Around follows: Market in Oakmont the Foodland and asked entered purchase ostensibly money manager orders. for the manager accompanied to his men where- office, pistol produced upon them one of demanded *4 manager complied money. and the robbers fled objected appellant Although in-court the identifications witnesses, suppression judge’s correction the of the made six irrefragable and thus allocatur was limited to the was decision proper not to consolidate or these indict of whether issue single trial. in a ments A the men with Edward witness, saw Kaminski, $3500. vinyl top. orange enter an colored car a black with digit He noticed the license number was third the In “N” “53”. and last either “35” or two were manager, employees addition other store three robbery witnessed the and all at identified Peterson perpetrators. trial as one Evidence relevant indictment indi- second evening cates that of October four men 24, 1970, in what was as a described rust-colored car with a black top parked Wilkinsburg. on Franklin Avenue in Three alighted Having and entered the Little General Store. group pulled first asked to checks, cash then shotgun They money. out a sawed-off and demanded registers fled from two or cash and $14 $9 $8 employee. tripped from an A clerk the alarm summon- ing police entering who as the arrived robbers were high get-away speed their car. A chase ensued which ended when robbers’ car in- crashed. Three men, cluding appellant, apprehended at near the scene of accident. The car contained sawed-off shotgun twenty one dollar bills. A calibre .30 ground on the revolver found beneath the auto. The car bore the license number Kam- “14N-135”. Mr. subsequently inski identified the car as the one used robbery. employees in the Oakmont At trial, this as one store identified Peterson of the robbers. timely made counsel Peterson’s motions for sever- again prior assigned ance trial and the lower post-trial error in court’s declination as motions and appeal. prejudice The contention arose testify fact Peterson from the wished concern- robbery, ing but Oakmont also desired to remain charge stemming silent on the from Wilkinsburg expose hold-up. Since he did wish to himself to on the latter he testify crime, cross-examination did not permitted is also asserted at all. It consolidation *5 the to the evidence of crimes and accumulate the jury infer from ulti- criminal was disposition guilt which found. mately the the absence
At outset we are constrained to note in of rule of criminal jurisdiction any procedure in- the of two or more joining covering severing its dictments. Pa. R. Crim. P. confined 219(b) by is to or situations where “two more offenses” language are “in the same indictment our
In order to facilitate of this appeal, disposition the of we consolidation indict- approach adopt in Fed. R. P. which ments embodied Crim. provides: or in- indictments, court order two more or “The mazy or both be tried the offenses, formations together if if there is more than and the defendants could one, indictment a or information. joined have been single be the as The shall same the prosecution procedure if indictment or single were under such information.” [Emphasis supplied.]2 of the federal returns in- approach
Adoption the orbit and influence of the stant Penn- problem Criminal we Procedure, Rules since con- sylvania of two be the consolidation indictments sider proper counterpart 219(d) R. Pa. Crim. P. more inclusive appears provides: “If it that a 14 which defendant P. Fed. R. Crim. by joinder prejudiced government a offenses or of or the by joinder or information or indictment such for an defendants may together, order election or court trials provide grant counts, or severance defendants whatever ruling requires. by justice In on motion a defendant relief other may attorney government order court for severance inspection any in camera statements or court to deliver government by which the the defendants intends made confessions joinder original If the trial.” evidence introduce In that no discretion. event a severance improper, confers Rule 14 ordered, failure to sever constitutes reversible error. be must joinder only original play proper. if the into comes Rule severance, despite propriety original joinder, permits a It prejudice. to avoid if needed joined properly if been the same offenses could have single governed Rule in a indictment situation [the 219(b)]. 219(b) specifically permits Pa. R. Crim. P.
“of ... indictment [t] wo more offenses the same char- if are of the same or similar [the offenses] *6 acter.” brief character- as the Commonwealth’s Here, ized the in these two there were offenses, similarities (3) (1) (2) grocery locat- of two robberies stores (4) ed miles from each other within twelve five seven (5) using orange-colored persons several hours, top get-away Un- automobile with a black as a car. satisfy questionably, the standards these similarities joinder. (D.C. P. States, See Drew v. United 331 2d 85 1964).3 Cir. that simi- fact these offenses were
However, closely place lar related and man- time, character, properly ner and hence could have been execution, joined in the first instance does settle matters. principal ap- Our and concern must be next whether prejudiced pellant, as as a result of the asserted, joint trial. general proposition
As a is well established that grant or denial of severance is a matter of discre judge, the trial whose tion with conclusion will be only preju for manifest abuse discretion or reversed injustice clear defendant. dice and Common (1965). 416 Pa. A. Patrick, v. 206 2d 295 wealth (10th v. States, United 389 P. 2d also Sullins 985 See 1968); (S. State, 483 P. Dobbins 2d 255 Cir. Ct. 1971). Wyo. 3 States, (8th United 356 F. Johnson v. also See Cir. multiple 1966), violations the Mann Act over a four- females, involving proper; period different hold Pummill
month (8th 1961), States, Cir. F. 2d 34 bank robberies ten v. United properly joined apart towns held different in two in the months indictment. same cogni- special have taken and treatises cases may if prejudice occur
zance of three kinds mere- particularly are those that offenses—and of a ly out and do not arise character” of “similar (1) joined. single These are: defend- trasaction—are may de- or confounded his embarrassed ant become (2) jury may of one of use the evidence fense; disposition charged infer a criminal crimes guilt of part found his from which is of the defendant may (3) jury charged; or or crimes the other crime of the various the evidence cumulate separately, guilt, it would if considered when, and find supra, Drew v. States, United not so find. See Wright, §222. and Procedure Practice Federal allegation appellant was em- turn to the
We confounded his defense since he wished barrassed charge testify not on It on one but the other. although important note that Peterson asserted testify he wished to con- for severance his motion *7 robbery cerning but remain on the Oakmont silent charge, indicated the nature of the testi- he never other give mony on the first to indictment. he wished strenuously urged to the hold are follow we While (D.C. ing F. States, 335 2d 987 Cir. of v. United Cross appellant 1964), reads case our own view joint broadly. in a Cross and There, indictment, too robbery in Count 1 with another were February rectory 1962, on Count 2 23, church May robbery home on tourist 1962. of a The with joinder theory similar transactions and motions jury denied. convicted him on for severance acquittal brought on Count 2. At Count specify upon the count which he did trial Cross and the reasons silent remain but therefor, to wished ultimately testified on he both Peterson, counts. unlike he had wished to appeal remain asserted he silent On robbery testify but about church incidents about home. tourist at the Appeals
The Court the District Columbia holding and ordered a new that defend- trial, reversed motion Rule ant’s for severance under 14 should have granted. recognized been The court to testi- have only on one a failure fied count would have accentuated testify only to on the other and that Cross’s alterna- present testimony on tive was weak 1. It was Count testify by therefore concluded Cross had been coerced to joint of similar the fact of transactions; him trial, effect, had rendered unable to remain on silent 1. Count
Proceeding from factual situation which is the argument of Cross, converse in addi- Peterson’s is that right tion to the to remain silent, accused crime right testify also has the own behalf his and there- fore he was coerced into on rob- silence the Oakmont bery by the instant consolidation. in Baker
However, v. United 401 F. States, (D.C. 1968), Cir. the same circuit court took occasion ways on, comment and in certain limit, Cross decision.
Baker on was convicted seven counts of a nine-count charging indictment offenses of income tax evasion and larceny. appeal argued, In his he inter alia, that sever- granted testify ance should been have since he wished to as to some counts mid remain silent others. opinion
In its the court stressed the element of dis- regard grant cretion inhering severance, judge, saying pp. in the trial 976-77: “Appellant proposition cites Cross that ‘a timely testify and bona fide election the accused requires as to some counts and not as to others a Rule *8 reading severance.’ We think this of Cross is far too broad. Such a rule, fact, would divest the court of all control over the matter severance and entrust it to the defendant. .
“. . need for a [N]o severance exists until convincing showing makes a defendant that he has both, concerning testimony give important one count to testifying strong on other. to refrain from and need making showing, the de- In it is essential that such information—regarding present enough the na- fendant give testimony he on one count to wishes ture wishing testify on the other reasons to and his satisfy prejudice claim of —to the court that intelligently weigh genuine the con- enable it and to judicial ‘economy expedition in ad- and siderations having against ministration’ the defendant’s interest testifying.”4 respect free choice it that Peterson’s need to refrain While is obvious testifying on No. 8871 from from Indictment stemmed caught any red-handed and excul- the fact that he was patory testimony sound and be would thus contrived only specu- patently court could incredible, the lower testimony give he late as to the nature had concerning no [Oakmont] Indictment No. 8071 since proffer appellant’s made in behalf. informational was The contention that Peterson’s defense was embarrassed proof. for want of and confounded fails erupt prejudice If held to the moment a defend- testify not all of ant he wishes on some but asserts clearly charges, then control has severance passed hands of the trial court and into the out right of the defendant. control While absolute States, (D.C. Robinson v. United 459 F. See also 2d Cir. States, 1972) Bradley (D.C. v. United 433 F. Cir. 1969). Bradley, In a defendant with two counts of house testify defensively only breaking that he wished to asserted requested charge The court held the evidence as to severance. mutuaUy on trial of the other and was admissible each count regard upheld to the assertion that of severance. With the denial Judge Spotswood charge, silent on one to remain wished defendant charge planned, to that “If ... a defense Robinson said: judge duty that he the trial order to so advise counsel’s intelligence greater his discretion the mat exercise could with 1124. 433 F. 2d at ter.”
197 pro- quarters, is severance some it is not advocated or vided either the federal rules. This state Court consistently grant has ruled the or denial of severance is a matter the trial court’s discretion.5
Appellant’s preju- contention is that he was second “probability” jury diced used the evidence of the one crime of or to convict him the other cumu- guilt charges. lated the evidence find under both brings This us once to and the second third prejudice may kinds of that offenses of a occur when joined. similar character are It is black letter law that of one crime evidence is against being inadmissible a defendant tried for another crime because the of of fact the commission one of- proof fense is not of the of another. commission See Foose, Commonwealth v. 441 Pa. A. 2d 272 452 173, (1971). special there sometimes cir- However, exist operate exceptions general which cumstances as bring equally rule and within case estab- well principle lished that evidence of other admis- prove (1) (2) sible it when tends to motive; intent; (3) (4) absence of or mistake accident; common plan design embracing or scheme, commission or proof more crimes so related to each other that prove (5) one tends to or others; to establish the identity person commission of 5 Project The ABA Minimum on Standards for Criminal Justice Relating give Standards and §2.2 Joinder Severance would such right, provided: absolute it is therein two or “Whenever more joined solely ground they been offenses have for trial on the character, are of the same similar the defendant shall have a right to a severance the offenses.” Enactment of such a rule many present would obviate difficulties with “similar trans fully Note, Single which are action” discussed Joint and 8 14 of Trials Under Rules the Federal Rules of Criminal Pro (1965) Comment, 74 Tale B.J. 553 cedure. Joinder of Right Silent, Violation as a of an Accused’s Counts Remain L.Q. (1968). Temp. there the crime other where is such words, trial—in connection between the crimes that logical proof show one tend to the accused is the naturally will other. who committed the See Commonwealth person 114 A. 2d 382 Pa. When the Wable, (1955). is relevant and these five important evidence conceded issues, generally prejudicial be value.6 outweighed by probative effect may *10 conclude that Although any we notwithstanding rule other relating to the exception crimes, evi- each of these not particular dence of crimes would in have a trial for the separate other,7 been admissible explained Bradley States, supra, in v. the Court United As “[W]here, relating F. at 1118: ‘under the rules to other crimes, the on evidence of each of trial would be ad the other, separate possibility trial for the the of “crim missible way enlarged by propensity” prejudice be in the inal would no joinder.’ the This is so for rather obvious fact of reason jury’s prejudice might eases the result from the ‘[i]n such joint would, hearing of the other crime in a trial be the evidence possible Consequently, separate no different from that trials.’ mutually joined of offenses would be admissible where evidence offenses, ordinarily separate re trials of those severance not propensity’ prejudice. pre quired And account of ‘criminal on every relating cept require that one item of evidence ‘does not other, in a trial for the but rather offense be admissible relating rules “other whether the in a broader sense to looks ” been satisfied.’ evidence have crimes” beyond need of discussion that evidence of other is obvious It separate trials either been introduced at of not have crimes could motive, or accident. intent or absence of mistake to show indictment surrounding there is these crimes show that the facts Nor do person probability due committed both offenses the same reasonable relating the and distinctive facts of unusual ato concurrence committed. crimes were in which manner very commodity fungible robbery and there is often a Armed instantly. particularly overlap un- There was no little evidence Although operandi. in both witnesses modus or distinctive usual they trial, because recalled it was Peterson identified stores we do not believe of reversal the instant case is either warranted or as mandated, appellant conceives, Drew by States, United supra.
In Drew, the Court of Dis- supra, Appeals trict Columbia recognized that joinder similar offenses will often cause the intro- prejudice through duction of evidence which fails to meet the “other wag crimes” There test. the defendant for the indicted robbery of a on July store and for at- 27, 1962, tempted robbery a similar store 1962. August 13, Joinder the two crimes met the of Buie requirements 8(a) but because the sit- two fact [similar offenses] uations similar meet enough qualifica- tions the other crimes the failure trial rule, court grant separate trials was held to be reversible error. The court reasoned that had prejudice occurred joint because evidence relating to might offenses been have confused It jury. cited cases which all upheld because the evi- any peculiar his face rather than feature about him. Some *11 being witnesses from the Oakmont store remembered Peterson totally black, including gloves they thought dressed in black which light By way contrast, in nnusual of warm weather conditions. eyewitness Wilkinsburg simply the at store remembered the being robbery in robbers dressed “beautiful clothes”. In the first pistol second, shotgun produced. a was In the a brandished. was overlaps only get-away The evidence extent that the car orange-colored in both identified as a rust or instances was model Additionally, top. pistol with a black the found beneath car the apprehension by manager at the time of was identified the the being exactly gun pulled like Oakmont store as the on him. Nor examples plan were the instant common or scheme so prove proof appeal In that one tends the other. related the Jackson, codefendant, of Peterson’s William Mr. Justice O’Bbien assuming Wilkinsburg “[E]ven the Court. that wrote and neighborhood’ proof ‘in same there no are the offered Oakmont question product in the of a common that the crimes scheme conspiracy continuing appellant between and his or of a codefend Jackson, 462, (1973). 451 Pa. 924 Commonwealth A. ants”. joint been ad- would have the in dence admitted single when the converse: inferred trials, mitted joint inadmis- be trial would admitted evidence improper joinder under Rule separate is trials, sible in 14. recognized appeals that court also
However,
joinder
ad-
when
of similar offense
certain instances
capable
missibility
is
not met but the evidence
test is
not
separation
danger
jury,
is
confusion
present
permissible.
case,
present
is
exception.
squarely
this
falls
within
we believe,
relying
regard
on
In
the court
United
Cir.),
(2d
cert. de
P. 2d
Lotsch,
States v.
Judge
(1939). There
307 U.S.
Order affirmed. by Concurring Opinion Pomeroy: Mr. Justice
I concur in the result reached the Court because my from review the record I am satisfied that the Pennsylvania test Rule of Criminal Procedure 219 (b)—“transactions together constituting connected or parts plan”—is of a common scheme or here met. That say, is to I believe that robberies these two grocery apart about five stores, miles on the eastern periphery metropolitan Pittsburgh, a common show plan design, identity scheme, and that Peterson’s as perpetrator robbery (where of the second he caught red-handed) probative establishing that he perpetrator only was also of the first. Not were the closely space, geta- related time and but the way orange car in both was described as with a black top. vinyl robbery At the Oakmont it was said to have plate digit a license with a third of “N” and last two digits of either “35” or while Wilkinsburg “53”, was found to have the license “14N135”. At Oakmont *13 202 awas it WilMnsburg in while
a brandished was pistol the seat found under was a however pistol, shotgun; Peter- WilMnsburg. Finally, in car used of the getaway both at by present trial witnesses was identified son not satisfy if case does In short, robbed stores. I at a be then would 219(b), of Rule requirements to know loss what would. decide whether unnecessary
I it therefore find be- 219 permissible Rule of offenses under or design common plan scheme, yond scope rule that a man’s mis- evidentiary past exception in his conduct establisMng not relevant conduct a later occasion.1 Opinion
Dissenting
Mr. Justice
:
Roberts
I
from the
anoma-
patently
am
dissent
compelled
by the majority’s opinion
lous
produced
today.
result
in two
charged
separate
was
indictments
Appellant
and distinct
robberies. Notwith-
two separate
motion for
his
severance of these of-
timely
standing
for
tried
both
was
robberies in
fenses,
appellant
majority
may
have held the two robberies
here
be
scheme, plan
design
part
or
a common
because
tbe
not
follow
Jackson,
language
ing
Commonwealth
in
451 Pa.
A.
“However,
assuming
WilMnsburg
(1973)
even
:
and Oak
neighborhood’,
proof
tbe
there
no
are ‘in
same
was
offered
mont
product
question
in
were the
of a common
crimes
scheme or of a
appellant
continuing conspiracy between
and his co-defendants.” The
however,
Jackson,
question
holding
not
did
conclude the
in
of a com
design
scheme, plan
here. Jackson
with the
mon
robbery
no
and there were
circumstances to indicate that
Oakmont
(other
might
Taylor),
than Peterson and
man
who
unknown
participated
robbery.
in the Oakmont
Jackson
As
been
have
appellant
states,
opinion
“[as] between
[Jackson] and his
Jackson
proof
ques
no
. . .
there was
that the
in
. . .
crimes
co-defendants
statement,
my view,
common scheme.” That
...
tion
Peterson,
apprehended fleeing
for
who was
true
not hold
does
participant
robbery
as a
identified
the first.
second
that al-
tidal. The
concludes
its
majority,
opinion,
“evidence
each
these
though
particular
trial
for
would not
in a
have been admissible
for
not error
court
other,”
deny
motion
appellant’s
timely
severance,
try
these offenses
trial.
single
This result
is both
and untenable. As the
illogical
due to the
majority concedes,
potential
prejudicing
“evidence
one crime is inadmissible
jury,
against
*14
a
tried for
defendant
another crime because the
being
fact of the
of one
commission
offense is not proof
certain limited
commission
of the
of
exceptions]
[with
another.” See Commonwealth n.
441 Pa.
Foose,
173,
Moreover, States Court of Appeals of Columbia stated District in Drew v. United F. 2d States, (D.C. Cir. 1964), prejudice defendant this of inures type situation be- use the “jury may cause a evidence one of the crimes infer criminal on disposition charged the part of guilt the other found from his the defendant which “jury may charged,” cumulate or the crime or crimes guilt charged find of the evidence various separately, find.” it not so if would considered when, just certainly logical rule is the more The more a defendant that as where, here, separate so offenses, and distinct dissimilar prejudicial of one to admit evidence be error Avould defendant of the other, at a offense right timely absolute motion, should have, Bar Associa- severance offenses. American Relating to and Severance Joinder tion’s Standards by prowling supports categorically for an ab- vieAV this right nature. “When- to severance cases solute joined for trial sole- or more offenses have been ever two they ly grounds or similar are the same on the right to a sever- shall have a character, defendant added.) offenses(Emphasis American ance Project on Minimum Standards Bar Association Relating to Joinder and Criminal Standards Justice, 1968). (Approved §2.2 Draft, Severance, rule eliminate would not the discretion This *15 grant upon timely judge trial motion severance It however, the defendant. restrict exercise would, to situations where the offenses in- of that discretion enough to meet similar the “other crimes” volved were arose such offenses out of the same or where trans- test, Compare episode. or occurrence, Commonwealth action, (1973). Campana, A. 2d Pa. 304 432 283, v. 452 relevant a case law review convinces Indeed, great being a rule is, fact, extent, me that this joined today. single where offenses a Thus, followed plan, design scheme, common or trial have sufficient or other crimes test, arose out meet same episode, occurrence, transaction, courts criminal have denying discretion no abuse found defendant’s
205
United
v.
motion
e.g., Bradley
See,
severance.
States, 433 F.
States
United
Cir.
2d 1113
(D.C.
1969);
v.
Lee,
428
F.
917
Cir.
cert.
404
denied,
2d
(6th
1970),
Baker v. United
U.S.
92
1017,
S. Ct. 679
(1972);
States, 401 F.
958
2d
Cir.
cert.
(D.C.
1968),
denied,
Commonwealth v.
400 U.S.
91 S. Ct.
965,
367
(1970);
Patrick,
Pa.
Mr. Nix and Mr. Justice Mandseino join this dissenting opinion.
Common wealth v. DuVal, Appellant.