The opinion of the court was delivered by: MARSH
On June 7, 1968, William E. Zeiler and Richard P. Chiocca were convicted by a jury on two counts of an indictment charging them with robbery of the Pittsburgh National Bank, Carrick Office, in the course of which lives were put in jeopardy by use of a pistol. Title 18 U.S.C. § 2113(a) and (d). Chiocca was sentenced; his motion for a new trial was withdrawn. The defendant Zeiler filed a motion in arrest of judgment, for a new trial or for judgment of acquittal. We think the motion should be denied.
On August 24, 1964, the Pittsburgh National Bank, Carrick Office, was robbed of $15,040. According to the testimony of the bank employees, a lone male, undisguised and unmasked, entered the bank at about 2:20 o'clock P.M. and walked to teller window No. 3, manned by Lois Reinhardt. There he requested that she change three one-dollar bills into dimes. As she attempted to comply, he placed a hand-printed note on her counter, the contents of which threatened her life;
he gave her a brown paper bag and ordered her to fill it with money, he had a pistol in the palm of his hand which the teller saw. Obediently, Mrs. Reinhardt obtained money from her cash drawer and put it in the bag. He then gave the bag to teller Dorothy Reusche at window No. 2, who was aware of the robbery, and he said, "you too". He pointed the pistol at Mrs. Reusche when she hesitated in unlocking the lower drawer under the counter. He said: "This is your last chance." Then Mrs. Reusche put the money contained in all her drawers into the bag. The robber remained on the customer side of the counter. He was observed by Belle Gray, a bank employee, who had been attracted to him by "a look of like pure hatred" which he gave her as she passed behind Mrs. Reinhardt on her way to her desk on the other side of the bank. After teller Reusche handed him the bag, the robber departed through the front door, turning to the right as he reached the street. Then Mrs. Reusche screamed "we have been held up!", and Mr. Collins, the bank manager, rushed out of the bank in pursuit of the robber.
At that time, Charles E. Metzger was standing on the sidewalk in front of a drug store near a corner of the shopping center in which the bank is located. He heard someone running and, upon looking up, saw a man, whom he later identified as Zeiler, running towards him with what appeared to be a brief case under his arm. The runner passed within two feet of Metzger and went around the corner. When Collins approached, he asked Metzger, "did you see that man?", and Metzger replied, "yes, there was a man just run around the corner. He was getting into his car." Collins and Metzger went to the corner and observed the robber getting into a light green 1954 Plymouth automobile in the parking lot. Both men observed that there was affixed to the car a white license plate resembling a temporary registration plate issued in Pennsylvania by dealers to purchasers of automobiles pending delivery of the permanent plate. The car was hastily driven over the curb into Parkfield Street, turned to the right, and then was driven out of sight. Shortly thereafter this car was found abandoned by the police about two miles from the bank.
Investigation revealed that this automobile was purchased by the defendant Chiocca from Kilgore Auto Sales in the early afternoon of the day of the robbery. Chiocca's fingerprints were found on the documents used to transfer title and register the vehicle. A white temporary license plate was affixed to the car.
Zeiler's first argument in support of his motion is that he "WAS PREJUDICED IN BEING TRIED JOINTLY WITH A CO-DEFENDANT WHERE THE CO-DEFENDANT HAD MADE ADMISSIONS INCRIMINATING DEFENDANT ZEILER." In our opinion, the codefendant, Chiocca, did not make admissions incriminating Zeiler. He did make self-incriminating admissions to the effect that he supplied the car for this robbery and divulged what he did with the money which he received as his share. Mrs. Ruth A. Stephens, Chiocca's paramour, testified to what she heard Chiocca tell their attorney before he gave himself up. The critical part of her testimony is as follows:
"A Then Mr. Schuchert asked Mr. Chiocca how and when they would get in touch with one another as far as this bank robbery was concerned, and Mr. Chiocca said that this person would call a few days before and a few days after the bank robbery. Mr. Schuchert also asked did he supply the car for this bank robbery, and Mr. Chiocca said that he did. Also, Mr. Schuchert asked him what sum of money he had gotten, but I don't remember this answer.
"A Yes, I remember that he said that he had hidden it in the rafters of his house in the basement and also in a metal box that he had welded to the frame of his car."
On May 28, 1968, at trial, Zeiler made an oral motion for severance, citing Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), decided on May 20th. The Government assured the court that Mrs. Stephens' testimony would be "sanitized", and that it would contain no reference to codefendant Zeiler.
At the trial, when the Government made an offer to prove Chiocca's admission through Mrs. Stephens, Zeiler objected, again citing Bruton. The objection was overruled. In our opinion, the sum and substance of Mrs. Stephens' testimony was innocuous with reference to Zeiler; it did not implicate Zeiler; it did not violate Zeiler's right of cross-examination secured by the confrontation clause of the Sixth Amendment. Her testimony does not even mention the bank robber. It relates only to Chiocca's participation in aiding and abetting the robbery.
There was no direct or indirect declaration that Zeiler was the robber.
The facts here differ materially from the facts in Bruton. There the incriminated defendant was denied his constitutional right to impugn through cross-examination the source of testimony implicating him. Here, the defendant Zeiler was not incriminated by name or otherwise. In Bruton there was hearsay evidence which was inadmissible against the codefendant. Krulewitch v. United States, 336 U.S. 440, 69 S. Ct. 716, 93 L. Ed. 790 (1949). Here, hearsay evidence implicating Zeiler was absent. Chiocca admitted only to facts incriminating himself, i.e., that he supplied the car for the robbery, that he would receive a call from "a person" a few days before and a few days after the bank robbery, and that he concealed the money obtained from the robbery. He did not mention or say that he knew the identity of the actual robber. The substance of Mrs. Stephens' testimony did not resemble in the least the "powerfully incriminating extrajudicial statements" found in Bruton.
Zeiler's conviction is bottomed on direct evidence of his own acts in the bank and his get-away in the green Plymouth; the in-court identification of him by three bank employees and by Mr. Metzger; the fact that he was acquainted with Chiocca; and the testimony of the handwriting expert that the hold-up note was "most probably" written by Zeiler.
Zeiler's complaint of prejudice is without substantial basis in fact. As we see it, a joint trial with a codefendant who has made an extrajudicial confession of guilt implicating only himself is less likely to engender harm than being named as the accused in the indictment or being identified by name as a defendant in the presence of jurors on the voir dire. In the circumstances here, if the defendant's insistence on prejudice were to prevail, it would likely result in a prohibition of all joint criminal trials of two accused persons where one has extrajudicially confessed, and, perhaps, of all joint trials of multiple defendants where one or more has extrajudicially confessed, with all the injurious ...