decided: March 27, 1973.
Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 972 of 1970, in case of Commonwealth of Pennsylvania v. Girard Geho.
Ralph W. D. Levan, Assistant Public Defender, for appellant.
Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.
[ 223 Pa. Super. Page 526]
The question in this appeal is whether the entry of guilty pleas by co-defendants in a joint trial with appellant requires the withdrawal of a juror, despite cautionary instructions by the trial judge.
Appellant, Girard Geho, and two other co-defendants were indicted and brought to trial jointly on charges of burglary, larceny, receiving stolen goods and conspiracy. Each defendant was represented by separate counsel. During the course of the trial, two of the defendants changed their pleas to "guilty" in the presence of the jury. The jury was sequestered and the two co-defendants were, thereafter, dropped from the proceedings. The trial proceeded against Girard Geho.*fn1
[ 223 Pa. Super. Page 527]
When the jury returned, the trial judge gave cautionary instructions to the jury regarding the previous incidents: "Members of the jury, remaining for your consideration is one defendant, Girard Geho, represented by his attorney, Mr. Levan. I don't want the jury to be concerned or influenced in any way as to what may or may not have happened, involving the other two defendants, Barry and Walter Wentzel. Your sole responsibility now is to determine whether Girard Geho is guilty or not guilty of the charges that the Commonwealth has preferred against him. The burden is on the Commonwealth to prove guilt of each of the defendants beyond a reasonable doubt, and the jury, if you had had three defendants, would have had to consider each one separately. Now you don't have two to consider, but you must still consider the question of Girard Geho's guilt or innocence, and again I repeat, I charge you that you should not, in any way, be influenced in this matter, for or against the defendant, by reason of the fact he is the only defendant remaining. . . ."
On December 9, 1970, the jury returned a verdict, finding appellant guilty of burglary, larceny and conspiracy, and not guilty of receiving stolen goods. Post-trial motions were filed and the only question raised was the ruling of the trial judge refusing Geho's motion for a mistrial after the two co-defendants changed their pleas. The court denied appellant's motions, and this appeal followed.
Appellant contends that he was incurably prejudiced by the impact of the guilty pleas tendered by the co-defendants in the presence of the jury. He argues that however detailed the trial judge's subsequent instructions, appellant had been labelled guilty by association by the jury which had begun their determination
[ 223 Pa. Super. Page 528]
with all three defendants before them charged with commission of the same crimes.
A novel question is presented. When three defendants are tried jointly and do not request a severance, is it error to continue with the trial against one defendant after two defendants elect to change their pleas to "guilty"? Appellant cites no authorities in his brief. Appellee relies upon the holding in Commonwealth v. Biddle, 200 Pa. 640 (1901), wherein our Supreme Court concluded that error was not committed when one defendant was permitted to enter a plea of guilty in open court in the presence of the same jury which thereafter tried the other defendant. Not since the beginning of this century has that precise issue come before the Supreme Court.
The problem, however, appears to have been answered in a host of federal cases. In a Second Circuit case, the United States Court of Appeals held that where the appellant was tried jointly with other co-defendants, three of whom changed their pleas to guilty before the jury, cautionary instructions by the trial judge corrected any potential prejudice or improper implication drawn from such pleas as to appellant.*fn2
[ 223 Pa. Super. Page 529]
the confession to prove the confessor's guilt," there exist "alternative ways of achieving that benefit without at the same time infringing the nonconfessor's right to confrontation. Where viable alternatives do exist, it is deceptive to rely on the pursuit of truth to defend a clearly harmful practice." at p. 134. This Court affirmed that language in Bruton recognizing that a co-defendant's confession not inculpating the defendant can be introduced in a joint trial, even though it may preclude cross-examination by the defendant. Commonwealth v. Massey, 218 Pa. Superior Ct. 68, 272 A.2d 269 (1970). In Massey, we said that Bruton did not apply to the case where a co-defendant did not implicate the appellant: "The court, however, in Bruton, indicated that viable alternatives existed to the procedure of admitting the confession with reference to the defendant's Sixth Amendment right. . . . The ABA Standard, Joinder and Severance, Section 2.3(a) lists a viable alternative as the admission of the statement after all reference to the non-confessor had been deleted." 218 Pa. Superior Ct. at 70.
A confession by a co-defendant, which does not implicate a defendant, may be attended by the same connotations as to the remaining defendant as a guilty plea. We are not persuaded by a contention that cautionary instructions cannot cure any potential prejudice created by implications as to the appellant, in the instant case, that he was likewise guilty of the charged crimes.
The judgment of sentence is affirmed.
Judgment of sentence affirmed.