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COMMONWEALTH v. KUBACKI ET AL. (11/17/66)

decided: November 17, 1966.

COMMONWEALTH
v.
KUBACKI ET AL., APPELLANTS



Appeals from judgments of Court of Quarter Sessions of Berks County, Dec. T., 1964, Nos. 67 and 68, in cases of Commonwealth of Pennsylvania v. John C. Kubacki; and Same v. Abraham Minker and Benny Bonanno.

COUNSEL

John E. Ruth, with him Marx, Ruth, Binder & Stallone, for appellant.

Bernard Edelson, with him B. Nathaniel Richter, John A. McMenamin, Lawrence Lieberman, and Richter, Lord & Cavanaugh, for appellant.

James M. Potter, with him Liever, Hyman & Potter, for appellant.

W. Richard Eshelman, District Attorney, with him Ralph J. Althouse, Jr., Assistant District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Spaulding, JJ. (Hoffman, J., absent). Opinion by Montgomery, J. Ervin, P. J., and Wright, J., would affirm upon the opinion of President Judge Hess for the court below. Hoffman, J., took no part in the consideration or decision of this case.

Author: Montgomery

[ 208 Pa. Super. Page 526]

Appellant John C. Kubacki appeals from a judgment of sentence following a jury verdict of guilty on an indictment charging (first count) conspiracy to do an unlawful act and (second count) extortion by color of office (Mayor of the City of Reading).

Appellants Abraham Minker and Benny Bonanno also appeal from judgments of sentence following a jury verdict of guilty on an indictment charging them jointly with (first count) conspiracy to do an unlawful act and (second count) aiding and abetting extortion by John C. Kubacki by color of his office as Mayor of the City of Reading.

Appellants were tried together and their appeals will be considered in the same manner.

The aforesaid indictments were consolidated for trial for the reason that the alleged offenses arose out of one continuing transaction or course of conduct under a single scheme or plan, namely: ". . . taking . . . of fees or payments not allowed by law from Angeline Martin Wilkerson, for permitting her to operate a bawdy house in the said City of Reading without interference from the police of the said City of Reading . . ."

Post-trial motions filed by each appellant for a new trial and in arrest of judgment having been refused, these appeals followed.

Only Kubacki and Bonanno question the propriety of the consolidation order. The consolidation of a number of indictments for the trial of one or more defendants is within the sound discretion of the trial judge, the exercise of which will not be reversed except for abuse; and to establish abuse there must be a clear showing that the defendant was prejudiced. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S. Ct. 112, 99 L. Ed. 688. The law on this subject was reviewed thoroughly by this Court in Commonwealth v. Evans, 190 Pa. Superior Ct. 179,

[ 208 Pa. Super. Page 527154]

A.2d 57 (1959), affirmed 399 Pa. 387, 160 A.2d 407, cert. denied, 364 U.S. 899, 81 S. Ct. 233, 5 L. Ed. 2d 194, and again in Commonwealth v. Sindel, 205 Pa. Superior Ct. 355, 208 A.2d 894 (1965).

Bonanno's arguments against consolidation are: (1) Kubacki was subject to adverse publicity because of a previous trial and therefore a joint trial with him was prejudicial to Bonanno; (2) he was further prejudiced because the key witness for the Commonwealth was Charles S. Wade, a former Chief of Police, whose testimony dealt in a large measure with the other defendants, Kubacki and Minker, and very little with Bonanno; and (3), consolidation resulted in limiting to six the number of peremptory challenges allowed to the defendants jointly. Kubacki argues that Wade's testimony was hearsay as to him and, being admissible only as to Bonanno, prejudicial as to him, Kubacki. He also asserts as error the limitation on the number of challenges.

It is not uncommon in the trial of more than one indictment for some evidence to be competent and relevant as to one or more indictments and incompetent and irrelevant as to others. However, the test is whether there is prejudice, Commonwealth v. Evans, supra; Commonwealth v. Giambrone, 183 Pa. Superior Ct. 283, 130 A.2d 254 (1957); and this is generally determined by the adequacy of the instructions given the jury. Although the decision to consolidate is made before trial, our examination of the record of testimony, including rulings on same and the charge of the court, leads us to conclude that proper limitations were placed on the relevancy of the evidence so that it would be considered in a proper manner by the jury and as not to prejudice other defendants. We find that the rights of Kubacki and Bonanno were fully protected and that there was no prejudice to either of those defendants on account of the admission of the evidence of Wade.

[ 208 Pa. Super. Page 528]

The Act of March 6, 1901, P. L. 16, § 1, amended by the Act of July 9, 1901, P. L. 629, § 1, 19 P.S. § 811, providing for six peremptory challenges to the Commonwealth and to the defendant in cases of most misdemeanors, has been interpreted to mean defendant or defendants, the number not to be multiplied by the number of individual defendants. Commonwealth v. Giambrone, supra. This decision was made on the interpretation given the Act of March 31, 1860, P. L. 427, § 40, 19 P.S. § 785, which provides that, ". . . in all cases of joint trials, the accused shall have the right to the same number of peremptory challenges to which either would be entitled if separately tried, and no more." Although this act refers to persons jointly indicted in its opening clause, we fail to see any sound reason for distinguishing between defendants indicted separately from those indicted jointly in determining the number of peremptory challenges to which they are entitled, and we interpret that act to mean the same in either case. Commonwealth v. Antico, 146 Pa. Superior Ct. 293, 22 A.2d 204 (1941), is in accord. There is no constitutional right to peremptory challenges. Furthermore, defendants had full opportunity to raise any questions concerning the jurors when they were being selected and not having made any objections or ...


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