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COMMONWEALTH v. LEITCH (01/21/58)

January 21, 1958

COMMONWEALTH
v.
LEITCH, APPELLANT.



Appeals, Nos. 2, 3, 4, and 5, April T., 1958, from judgment of Court of Quarter Sessions of Allegheny County, Dec. T., 1955, Nos. 356, 357, 358, and 359, in case of Commonwealth of Pennsylvania v. Irvine Leitch. Judgment affirmed.

COUNSEL

Roy T. Clunk, with him I. Elmer Ecker and William J. LeWinter, for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Fagan, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 185 Pa. Super. Page 262]

OPINION BY ERVIN, J.

The appellant, Irvine K. Leitch, was indicted on three separate indictments charging subornation of

[ 185 Pa. Super. Page 263]

    perjury and on one indictment containing three counts charging attempted subornation of perjury. A jury found him guilty of the three indictments charging subornation of perjury and guilty of the first and third counts of the indictment charging attempted subornation of perjury. A demurrer was sustained as to the second count of this indictment. After motions in arrest of judgment and for a new trial were dismissed, he was sentenced to a term of imprisonment under the first indictment and was given concurrent sentences under the other indictment. Defendant appealed.

All of the charges arose out of a trial involving a series of larcenies and burglaries for which the defendant had been indicted with two others. The witnesses in that case included the co-defendants and four juveniles. These witnesses had made prior statements to the police in which they implicated the appellant but at the time of trial before Judge SAMUEL WEISS they exonerated him. The evidence revealed that between the time of the arrests and the time of trial, all of the boys were contacted by appellant with the request that they change their stories to the effect that appellant was not present and did not participate in any of the burglaries. Because of the requests, Conti, Istenes and Cover did change their stories when they appeared as witnesses at the trial before Judge WEISS. They testified that they took part in the various burglaries but appellant was not present or involved in any of them. As a result Conti and Istenes were found guilty as charged but appellant was acquitted on all charges. In the present trial Conti, Istenes and Cover admitted committing perjury at the original trial and testified that it was instigated by the appellant. The two remaining witnesses, Demko and Chetoka, testified that the appellant approached them and attempted to persuade them to perjure their testimony. Chetoka agreed

[ 185 Pa. Super. Page 264]

    to do so but Demko said he did not. Conti testified that he was present at different times when Chetoka, Istenes, Demko and Cover were asked by the appellant to change their story and he further testified that "It seemed to me everybody was going along with it."

Appellant first argues that the court below erred in refusing a severance of the three indictments charging separate offenses of subornation of perjury and the indictment containing three counts charging separate offenses of attempted subornation of perjury. There is no merit in this contention. The consolidation for trial of indictments charging separate and distinct offenses is largely a matter within the sound discretion of the trial judge and where the indictments are closely related his exercise of discretion will not be reversed unless it is clearly shown that an appellant has been prejudiced thereby: Com. v. Russo, 177 Pa. Superior Ct. 470, 478, 111 A.2d 359. In the present case the consolidation was especially appropriate because the proofs followed the same pattern and were interrelated. The original burglaries and larcenies involved the appellant and some or all of the other boys. All were apprehended by the police at approximately the same time. All, with the exception of the appellant, gave written statements to the police admitting their participation and involving the appellant. All were charged and on trial at the same time for these original burglaries and larcenies before Judge WEISS. At that trial all of the boys stated that the appellant was not present when the burglaries and ...


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