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March 14, 1950



Miltoon S. Leidner, Leidner & Leidner, Philadelphia, for appellant.

Raymond A. Speiser, Assistant District Attorney, John H. Maurer, District Attorney, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.

Author: Hirt

[ 166 Pa. Super. Page 370]

HIRT, Judge.

The defendant Mitchell Kaysier has appealed from three convictions of robbery, on each of which the court imposed a sentence of from 10 to 20 years, to be served consecutively. His principal complaint, in seeking a new trial, is that the court abused its discretion in consolidating the charges of the various indictments for trial.

Although there were sixteen indictments, they charged related offenses arising from the alleged criminal acts of the defendant with others, in but five instances on five separate occasions. The first of these was the burglary of a State Liquor Store in Philadelphia on the night of December 14, 1948. A large quantity of liquor valued at $7,500 had been removed through a

[ 166 Pa. Super. Page 371]

    rear window of the store through which entrance had been gained and was being loaded on a truck by four men when a police officer surprised them. Only one of them, Joseph Wanner was apprehended at the scene of the crime; the other three fled. Appellant was indicted with Wanner, Daniel Bezanis and one Fischuck, charged with burglary and larceny, and was convicted solely on the testimony of Wanner. This record does not disclose that he was sentenced on that conviction. The second group of crimes was committed on February 10, 1949 by three masked men, each armed with a gun, who entered a taproom on North Fifth Street in Philadelphia. They forced the bartender and all of the patrons in the place to the floor and took their money, as well as the contents of the cash register. Appellant Kaysier with Bezanis and one Lockery were indicted on five bills charging them with robbery and other related offenses, and in a sixth bill charging conspiracy. They were not identified by anyone at the scene of the crimes and the jury found the testimony insufficient to convict them. On the third occasion a sporting goods store on South Penn Square, Philadelphia, was broken into on March 15, 1949 and sixteen automatic pistols and revolvers were taken. When Kaysier was apprehended some time later, a Colt revolver in his belt was identified as one of the guns stolen from the store. On the trial, Kaysier's demurrer to the burglary and larceny counts was sustained and the jury acquitted him of the remaining charge, receiving stolen goods. The fourth occurrence, with which we are concerned in these appeals, took place on April 14, 1949 when three men, each carrying a gun, entered a used car lot on Oxford Avenue in Philadelphia. They ordered the three men who were in the office to lie on the floor. When one of them did not comply at once, he was shot through the neck. The robbers rifled their pockets and then fled. Because they were masked, their victims were unable to identify them. Appellant

[ 166 Pa. Super. Page 372]

Kaysier with Bezanis, Michael Sanbor and James Petre were charged with the robbery in three indictments which also contained counts charging related offenses. At the trial it was shown that Petre was not present at the scene of the crime and a verdict of not guilty was directed as to him. Sanbor pleaded guilty and on his testimony the jury convicted Kaysier of the charges. It was Kaysier who did the shooting according to Sanbor's testimony. On these convictions the court imposed the sentences of appellant from which he took these appeals. Bezanis was also convicted of all of the charges on his confessions made to the police and the testimony of Sanbor. The remaining indictments were based on the events of the following night when appellant was apprehended. In one of the bills Kaysier and Bezanis were charged with carrying concealed deadly weapons; in a second bill they with Petre were indicted on a charge of conspiracy to rob. A verdict of not guilty was directed as to Petre and the jury acquitted the appellant and the other defendant of both charges.

The court did not err in consolidating all of the indictments for trial under the circumstances. Bills collateral to the major crimes account for the multiplication of indictments. All of the crimes were committed in series in the City of Philadelphia within the period of about four months. The appellant was named as a defendant in every indictment, Cf. Commonwealth v. Faulknier et al., 89 Pa. Super. 454, and evidence against him was adduced at the trial on every charge. Together, the indictments tended to indicate a series of crimes committed in a continuing course of conduct under a single plan. Cf. Commonwealth v. Quinn, 144 Pa. Super. 400, 405, 19 A.2d 526. There was similarity in technique in the robbery ...

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