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 ...