Appeal from order of Superior Court, April T., 1972, No. 71, affirming order of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1970, No. 8071, and Dec. T., 1970, No. 8871, in case of Commonwealth of Pennsylvania v. Raymond Peterson, alias Larry Brown.
John H. Corbett, Jr., Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Robert L. Eberhardt, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this dissenting opinion.
Appellant, Raymond Peterson, was indicted, together with several alleged accomplices, on counts of armed robbery, receiving stolen goods and violation of the Uniform Firearms Act. Pretrial motions to suppress identification testimony and for separate trials on the two indictments were denied and a jury trial was held in the Court of Common Pleas of Allegheny County. The trial judge sustained appellant's demurrers to all charges except the two counts of armed robbery. On these charges the jury returned verdicts of guilty. Motions for a new trial were denied, and Peterson was sentenced to two concurrent terms of from three and one-half to seven years imprisonment. An appeal to the Superior Court resulted in a per curiam affirmance, Commonwealth v. Peterson, 222 Pa. Superior Ct. 747, 294 A.2d 741 (1972). This Court granted allocatur.*fn1
The facts pertinent to the first indictment are as follows: Around 10 a.m. on October 24, 1970, two men entered the Foodland Market in Oakmont and asked for the manager ostensibly to purchase money orders. The men accompanied the manager to his office, whereupon one of them produced a pistol and demanded money. The manager complied and the robbers fled
with $3500. A witness, Edward Kaminski, saw the men enter an orange colored car with a black vinyl top. He noticed the third digit of the license number was "N" and the last two were either "35" or "53". In addition to the manager, three other store employees witnessed the robbery and all identified Peterson at trial as one of the perpetrators.
Evidence relevant to the second indictment indicates that on the evening of October 24, 1970, four men in what was described as a rust-colored car with a black top parked on Franklin Avenue in Wilkinsburg. Three alighted and entered the Little General Store. Having first asked to cash checks, one of the group then pulled out a sawed-off shotgun and demanded money. They fled with $14 from the two cash registers and $8 or $9 from an employee. A clerk tripped the alarm summoning police who arrived as the robbers were entering their get-away car. A high speed chase ensued which ended when the robbers' car crashed. Three men, including appellant, were apprehended at or near the scene of the accident. The car contained a sawed-off shotgun and twenty one dollar bills. A .30 calibre revolver was found on the ground beneath the auto. The car bore the license number "14N-135". Mr. Kaminski subsequently identified the car as the one used in the Oakmont robbery. At trial, two employees of this store identified Peterson as one of the robbers.
Peterson's counsel made timely motions for severance prior to and again at trial and assigned the lower court's declination as error in post-trial motions and in this appeal. The contention is that prejudice arose from the fact that Peterson wished to testify concerning the Oakmont robbery, but also desired to remain silent on the charge stemming from the Wilkinsburg hold-up. Since he did not wish to expose himself to cross-examination on the latter crime, he did not testify at all. It is also asserted that consolidation permitted
the jury to accumulate the evidence of the crimes and infer criminal disposition from which guilt was ultimately found.
At the outset we are constrained to note the absence in this jurisdiction of any rule of criminal procedure covering the joining and severing of two or more indictments. Pa. R. Crim. P. 219(b) is confined by its language to situations where "two or more offenses" are charged " in the same indictment ".
In order to facilitate our disposition of this appeal, we adopt the approach to the consolidation of indictments embodied in Fed. R. Crim. P. 13, which provides: " The court may order two or more indictments, or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information." [Emphasis supplied.]*fn2
Adoption of the federal approach returns the instant problem to the orbit and influence of the Pennsylvania Rules of Criminal Procedure, since we consider the consolidation of two indictments to be proper
if the same offenses could have been properly joined in a single indictment [the situation governed by Rule 219(b)].
Pa. R. Crim. P. 219(b) specifically permits joinder of "[t]wo or more offenses . . . in the same indictment if [the offenses] are of the same or similar character." Here, as the Commonwealth's brief characterized the similarities in these two offenses, there were (1) two robberies (2) of two grocery stores (3) located five to seven miles from each other (4) within twelve hours, by several persons (5) using an orange-colored automobile with a black top as a get-away car. Unquestionably, these similarities satisfy the standards for joinder. See Drew v. United States, 331 F. 2d 85 (D.C. Cir. 1964).*fn3
However, the fact that these offenses were of similar character, closely related in time, place and manner of execution, and hence could have been properly joined in the first instance does not settle matters. Our next and principal concern must be whether appellant, as asserted, was prejudiced as a result of the joint trial.
As a general proposition it is well established that the grant or denial of severance is a matter of discretion with the trial judge, whose conclusion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). See also Sullins v. United ...