John J. Dean, John R. Cook, Pittsburgh, for appellant.
Robert W. Duggan, Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, Thomas More Lilly, Asst. Dist. Attys., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion.
The appellant, Samuel Lee Thomas, was found guilty by a jury of two counts of armed robbery and one count of assault with intent to kill. Post trial motions were denied and concurrent sentences of three and one-half to ten years imprisonment were imposed for each offense. On appeal, the Superior Court affirmed the judgments of sentence in an opinionless per curiam order. We then granted allocatur.
These facts are disclosed by the record:
On July 7, 1967, the LaPietra Tavern in the Borough of Rankin, Allegheny County, was held up and robbed by three men. The proprietor of the tavern was pistolwhipped by one of the felons. On July 10, 1967, at about 11:50 a. m., a Gulf Oil service station, also located in Rankin, was held up and robbed by a lone gunman, who also assaulted the manager of the station. Also on July 10th, about 3:15 p. m., the King Furniture Outlet in McKeesport, Allegheny County, was held up and robbed by three men, and Thomas Kress, a store employee, was hit several times on the back of the neck by one of the felons. These three robbers then joined a fourth man, waiting nearby in a white Studebaker station wagon, and
fled the scene. At 3:35 p. m., the station wagon was stopped on the highway about seven miles from McKeesport by a police officer who had received via radio a report of the robbery and a description of the getaway vehicle. Two guns, a knife, and some currency stolen during the furniture outlet robbery were found in the station wagon, and the appellant Thomas, Walter Adams, Ronald McKeithen and George Cobb, the four occupants, were placed under arrest.
Subsequently, Thomas, Adams, McKeithen and Cobb were jointly indicted [Bill No. 78] for armed robbery and receiving stolen goods in connection with the King Furniture Outlet robbery. Thomas was indicted [Bill No. 90] alone for armed robbery and assault with intent to kill in connection with the Gulf Oil service station hold-up. Adams, McKeithen and Cobb were jointly indicted for armed robbery and assault with intent to kill [Bill No. 85] in connection with the LaPietra Tavern hold-up.
On March 21, 1968, McKeithen and Cobb entered pleas of guilty to Bills of Indictment, Nos. 78 and 85. Commencing on March 25, 1968, Thomas was tried on Bills Nos. 78 and 90, and Adams on Bills Nos. 78 and 85 in a joint trial. The latter was represented by self-retained counsel and the former by an attorney from the office of the Public Defender.
Initially, Thomas urges he was unduly prejudiced by the consolidation of the three separate indictments in one trial since he had been charged with participation in only two of the robberies. A review of the record reveals that Thomas failed to object to the consolidation by either a pretrial motion for severance or by an objection at trial. Nor did he raise the issue in the post trial motions. As issues not raised in the court below ...