Appeals, Nos. 163 and 164, Jan. T., 1954, from judgments of Superior Court, Oct. T., 1953, Nos. 278 and 279, affirming judgments of Court of Quarter Sessions of Lehigh County, April Sessions, 1952, Nos. 67 and 68, in cases of Commonwealth of Pennsylvania v. Stephen F. Kloiber, and Same v. William Kloiber. Judgments affirmed. Same case in Superior Court: 174 Pa. Super. Ct. 483. Indictments charging defendants with various offenses. Before HENNINGER, P.J. Verdicts of guilty and judgments of sentence entered thereon. Defendants appealed to the Superior Court, which affirmed the judgments of the court below. Appeal by defendants to Supreme Court allowed.
Everett Kent, with him Theodore R. Gardner, for appellants.
George J. Joseph, First Assistant District Attorney, with him M. Jack Morgan, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Two armed men entered the office of the R & F Dress Company at 1214 Gordon Street, Allentown, Pa., at approximately 12:35 o'clock p.m. on February 29, 1952, held up the company's bookkeeper and president, seized the cash payroll, and escaped in a black sedan car which was waiting for them and was being driven by a third person.
Senkovich and defendant, Stephen Kloiber, were alleged to have been the two armed robbers and William Kloiber the driver of the getaway car. Senkovich and Stephen Kloiber, after being arrested, gave signed confessions to the Pennsylvania state police admitting their participation in the robbery; and Senkovich also implicated William Kloiber as the driver of the getaway car. Senkovich pleaded guilty and was sentenced by the Court.
Stephen Kloiber and William Kloiber were separately indicted but were tried together. At the trial of this case the president and the bookkeeper who were held up, positively identified Stephen Kloiber as one of the two robbers, although they had failed to do so on two previous occasions. William Kloiber did not make any confession or take the witness stand. Senkovich at the trial of these defendants repudiated his written confession and testified he was with two other men named Kelly and John Crawford.
Stephen and William were convicted and from the judgment and sentence of the Court of Quarter Sessions
they appealed to the Superior Court. Their conviction was sustained by the Superior Court and this Court allowed an allocatur.
Defendants allege numerous errors in their trial, several of which we shall discuss.
Defendants' first complaint is that the Court erred in refusing their request for separate trials. Stephen Kloiber and William Kloiber were each separately indicted on five counts. The first count against Stephen was one of armed robbery; the first count against William was one of robbery with accomplice; the other four counts, charging robbery, assault with intent to rob, larceny and receiving stolen goods, were identical. Both men were charged with participating in the same robbery and the same crimes at the same time, and not with participating in separate and distinct offenses. The Commonwealth called 14 witnesses in its case in chief and with several exceptions, the testimony of all witnesses was material and relevant as to both defendants.
The trial Judge because of his position and for other obvious reasons has been given a discretion to determine whether a number of bills of indictment should be consolidated and tried together, and his exercise of discretion in such matters will not be reversed by an appellate Court unless there has been a manifest abuse of discretion or a joint trial is so unfair as to be clearly unjust and prejudicial to one or more of the defendants. Especially is a joint trial permissible, if not advisable, when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to both defendants: Com. v. Mulroy, 154 Pa. Superior Ct. 410, 36 A.2d 337; Com. v. Valotta, 279 Pa. 84, 123 A. 681; Com. v. Quinn, 144 Pa. Superior Ct. 400, 405, 19 A.2d 526.
There was no manifest abuse of discretion or prejudicial error in trying these two defendants together on all of the aforesaid indictments.
Defendants also allege a number of errors in the charge and in the rulings of the Court. The first error alleged is that the Court erred in the following portions of its charge: "... it is admitted in this case that at least two people took part who were in the dress goods plant, and then there is no contradiction that there was a third party who was in an automobile.... I think there is no doubt about William Kloiber having been at the Silver Star Hotel with Michael Senkovich that morning." The Court subsequently left to the jury the determination of all the facts and said it was their recollection and teir opinion of the evidence which prevailed; and they had the right to decide all the facts and questions involved in the case.
There is no reversible error in these excerpts from the charge, since there was ample evidence and reasonable ground for the Court's statements and they did not constitute, as defendants contend, statements of fact within the principle of Commonwealth v. Chambers, 367 Pa. 159, 79 A.2d 201. In that case the Court said (page 164): "It is the exclusive province of the jury, not the court, to decide all the facts, the inferences therefrom, the credibility of the witnesses and the weight and effect to be given to all of the testimony. While the main purpose of a judge is to state and explain the law and briefly review the evidence, it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render, provided (1) there is reasonable ground for any statement he may
make; and (2) he clearly leaves to the jury the right to decide all the facts and every question involved in the case, regardless of any opinion of the court thereon: Commonwealth v. Cunningham, 232 Pa. 609, 611, 81 A. 711; Commonwealth v. Foster, 364 Pa. 288, 293, 72 A.2d 279; Commonwealth v. Simmons, 361 Pa. 391, 407, 65 A.2d 353; Commonwealth v. Watts, 358 Pa. 92, 97, 56 A.2d 81; Commonwealth v. Jones, 341 Pa. 541, 551, 19 A.2d 389; Commonwealth v. Nafus, 303 Pa. 418, 420-1, 154 A. 485."
We come now to the following excerpt from the Court's charge: "I think there is no contradiction of William Kloiber having been at the farm and having gone with Michael Senkovich, at least the first time, to the Silver Star. So that William Kloiber does not make a denial*fn1 that he was with Michael Senkovich on the early morning when this robbery occurred...". There was ample testimony to prove that William Kloiber was at the farm and at the Silver Star with Senkovich at the times in question; but the question remains ...