Lead Opinion
Opinion by
Following a joint trial by jury, appellant and a codefendant were found guilty of murder in the first degree and sentenced to life imprisonment. On this direct appeal from the judgment of sentence,
The Commonwealth’s evidence established that on January 15, 1972, George Fautz, a barber, was brutally beaten and robbed in his Harrisburg shop. Later that day, appellant on two separate occasions discussed the incident with friends. He told them that he entered the shop, asked if Fautz was hiring any barbers, and upon receiving a negative answer repeatedly struck the deceased with an eighteen-inch club he was carry
The victim, who died four days later as the result of a skull fracture and massive hemorrhaging of the brain, stated before his death that two men entered his shop and asked if he was hiring. He told them that he was not, turned, and later awoke to discover that his wallet, which contained about $60.00, was missing. Fautz’s description of his assailants matched the defendants. The victim’s statements were admitted at trial as hearsay exceptions, see Commonwealth v. Edwards,
Appellant testified at trial that he was present in the barbershop, but that he neither struck nor robbed the deceased. His defense was a denial of guilt and an attack on the credibility of Commonwealth witnesses. Presently appellant maintains that his denials should have been believed, the testimony of Commonwealth witnesses discredited, and a reasonable doubt as to his guilt raised in the minds of the jurors. We cannot agree.
“[I]t is the exclusive province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded their testimony.” Commonwealth v. Garvin,
In passing upon the sufficiency of the evidence, an appellate court must scrutinize the entire record, viewing the evidence in the light most favorable to the verdict-winner, here the Commonwealth. Commonwealth v. Lee,
Appellant’s second claim concerns the denial of his motion for severance. After the case was called to trial and immediately before the jury was selected, each defendant moved orally for a separate trial; these motions were denied. The same witnesses and same evidence were used against both defendants in their joint trial.
Rule 304 of the Pennsylvania Rules of Criminal Procedure authorizes pretrial applications for severance.
Third, appellant urges that he should have had access to the district attorney’s investigative report containing biographical data on the prospective jurors. The prosecution was using this report during jury selection and appellant asked to examine the report after four jurors were selected. His request was denied.
In Commonwealth v. Foster,
Finally, it is contended that reversible error was committed when the prosecution asked a defense witness a question which, it is asserted, may have created in the minds of the jurors an impression that appellant had previously been convicted of crime. The record indicates that appellant was, in fact, a first offender. Appellant’s mother was called by the defense as a character witness and testified that her son had never “been in trouble before.” Over objection, the prosecution
We fully agree with appellant that questions which imply the existence of an unsupported factual predicate and which attempt to create impression of guilt through innuendo may not be asked. Commonwealth v. Conner,
Judgment of sentence affirmed.
Notes
Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1974).
The Commonwealth erroneously cites rule 219(d) of the Pennsylvania Buies of Criminal Procedure as the rule permitting severance of and' separate trials for defendants scheduled to be tried jointly. Buie 219(d), however, refers only to severance of counts in an indictment or of defendants jointly charged in a single indictment. Here, each defendant was separately indicted. See Pa. B. Crim. P. 219(c).
in a prosecution for murder, a timely motion for severance should, however, be granted. Act of March 31, 1860, P.L. 427, § 40, 19 P.S. § 785 (1964); Commonwealth v. Stukes,
Dissenting Opinion
Dissenting Opinion by
The Act of March 31, 1860, P. L. 427, §40, 19 P.S. §785 (1964), cited by the majority,
While it is true that Pennsylvania Rules of Criminal Procedure 304 and 305, 19 P.S. Appendix (Supp.
Rule 305 itself is not couched in absolute terms. It provides in pertinent part: “. . . no pretrial application shall be considered if made less than ten days before trial unless opportunity therefor did not exist or the defendant or his attorney was not aware of the grounds for the application.” (Emphasis added.) While it is not altogether clear, it appears that neither the defendant nor his attorney was aware that the defendant had an absolute right to severance. Both counsel’s brief and appellant’s own “supplemental brief” filed with this Court assume that the granting of a severarxce in this case was a matter of discretion for the trial court. Apparently, even the trial court made this same assumption, for in its opinion denying the defendant’s post-trial motions, the Court points out that in consolidating the bills of indictment and trying them together, it did so in the exercise of its discretioxx.
While the Act of 1860, supra, by its terms purports to apply only to cases where “two or more persons are jointly indicted” (emphasis added), it should make no difference whether the defendant and his co-defendant were indicted on the same bill or were separately indicted : the same rule requiring severance should apply. Apparently, this was the interpretation given this stattute by this Court in Commonwealth v. Stukes,
Accordingly, whether or not prejudice resulted from the joint trial, it is my opinion that, the point having been properly preserved, a new trial should be granted.