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COMMONWEALTH v. KLOIBER (TWO CASES) (12/29/53)

December 29, 1953

COMMONWEALTH
v.
KLOIBER (TWO CASES)



COUNSEL

Everett Kent, Bangor, Theordore R. Gardner, Allentown, for appellants.

George J. Joseph, First Asst. Dist. Atty., M. Jack Morgan, Dist. Atty., Allentown, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Woodside

[ 174 Pa. Super. Page 485]

WOODSIDE, Judge.

The appellants in these cases were convicted by a jury of robbery. The evidence showed that at 12:35 P.M. February 29, 1952, two men entered the R. & F. Dress Company Office in Allentown, and at gun point took the payroll of $2,556.67 from the bookkeeper and the president. The two escaped in a waiting car driven by a third party.

The defendants, together with one Michael Senkovich, an escapee from the Bucks County Jail, were subsequently arrested and charged with the offense. Michael Senkovich and the defendant, Stephen Kloiber, were alleged to have been the two armed men who entered the premises; the defendant, William Kloiber, was alleged to have been the driver of the car used in the crime.

Senkovich and Stephen Kloiber, upon apprehension, gave signed statements to the Pennsylvania State Police, admitting participation in the robbery. Both were identified at the trial by the company bookkeeper and the company president as the two men who had entered the office and seized the payroll, although on two previous occasions these witnesses had failed to identify them as the holdup men. Senkovich entered a plea of guilty and was sentenced by the Court. Subsequently the appellants entered pleas of not guilty, and their cases were consolidated and tried jointly by a jury before

[ 174 Pa. Super. Page 486]

Judge James F. Henninger. A verdict of guilty was found as to both defendants on all counts. Both filed motions for a new trial. Following argument thereon, the motions were dismissed by the lower court and sentences were imposed. These are appeals from the judgments and sentences.

Appellants object to the failure of the lower court to grant their request for separate trials. The propriety of consolidating indictments for trial is a matter for the trial court to determine in the exercise of a sound discretion, and the appellate courts will not reverse except for a clear abuse of such discretion. Commonwealth v. Mulroy, 1943, 154 Pa. Super. 410, 412, 36 A.2d 337, and cases cited therein. Here, both defendants were charged with participation in the same crime and almost all of the evidence introduced was applicable to both. We can find no abuse of discretion here and we accordingly are of the opinion that the indictments were properly tried together.

Five counts were contained in Stephen Kloiber's indictment, the first of which was armed robbery, he being charged with being one of the two men who entered the building and committed the armed robbery. Five counts were also contained in William Kloiber's indictment, the first of which was robbery with accomplice, he being charged with waiting outside in the car to assist his accomplices in their escape. The other four counts were identical. The court in its charge to the jury made reference to the counts against both defendants being 'parallel.' Although the trial judge asked at the end of his charge whether either counsel had anything further to be brought to the attention of the jury ...


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