Henry D. O'Connor, Francis G. Wenzel, Philadelphia, for appellants.
Raymond V. John, Asst. Dist. Atty., John H. Maurer, District Atty., Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 353]
The appellants were convicted for a violation of section 801 of the Penal Code of 1939, 18 P.S. § 4801,*fn1 and for conspiracy, The case was tried by a judge sitting without a jury. After they were convicted and their motions for a new trial were refused, the appellants
[ 169 Pa. Super. Page 354]
took these appeals. The appeals are absolutely devoid of merit and we do not propose to prolong discussion of them. The appellants were fairly tried, they were represented by able counsel, and their motions for new trial have no substance in them.
This prosecution grew out of a series of charges and counter charges leveled at one another by two rival families of gypsies, the Stanleys against the Evanos and Thompsons. The Stanleys are brothers and the prosecutors of the charges against the Evanos and Thompsons. Mary Thompson is the daughter of Eli Evano, and Frank Thompson is the son of Sally Evano. They are the prosecutors of the charges against the Stanleys.
The trial of the case embraced indictments charging the three appellants with conspiracy, attempted blackmail and extortion; charging the appellant Eli Stanley alone with attempted blackmail and extortion; charging Eli Evano, Sally Evano, Frank Thompson and Mary Thompson with armed robbery and with carrying deadly weapons; and finally an indictment charging Eli Evano and unnamed others with burglary and armed robbery. The indictments were consolidated for trial at the request of trial counsel for the appellants, counsel for the Evanos and Thompsons, and the district attorney. Present counsel entered the case after the motion for new trial was refused. Trial counsel did not appear for appellants in the argument before us.
Two contentions are stressed on behalf of the appellants in this appeal: (1) That it was 'palpable error' for the trial court to permit the consolidation of the several indictments for trial; and (2) that it was error for the trial judge sitting without a jury to proceed to judgment without the testimony of an 'available material witness'. We are agreed that there is no merit in either contention.
[ 169 Pa. Super. Page 355]
In support of their contention that the trial judge erred in permitting the consolidation of the indictments, the appellants cite Withers v. Commonwealth, 5 S. & R. 59, Com. v. Wheeler, 75 Pa. Super. 84, and Com. v. Moyer, 76 Pa. Super. ...