Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, Nos. 783 and 786, in case of Commonwealth of Pennsylvania v. Tyrone Terrell.
Maxwell L. Davis, and Davis and Davis, for appellant.
Douglas B. Richardson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Watkins, P.j., and Van der Voort, J., dissent.
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Appellant was charged with aggravated robbery (Indictment No. 783) and carrying a concealed deadly weapon and unlawfully carrying a firearm without a license (Indictment No. 786). When the bills were consolidated for trial, appellant's counsel moved for severance, but the motion was denied. A jury found appellant guilty on both bills, and he was sentenced to three to fifteen years imprisonment on the aggravated robbery charge and two lesser concurrent sentences on the firearms charges. The sole issue raised on this appeal is whether it was error not to grant the motion for severance.
The robbery occurred in a bar on March 7, 1972, at 1:50 A.M. The bartender's testimony may be summarized
[ 234 Pa. Super. Page 328]
as follows. Appellant and another man entered the bar together. Appellant produced a gun, and the other man a knife. After taking money from the cash register and from the bartender's person, they made the bartender lie on the floor and the bartender's wife and about six patrons go into the bathroom, and left. The entire incident took about twenty minutes. The bartender positively identified appellant as the robber with the gun. The bartender's wife corroborated this testimony; she also positively identified appellant as the robber with the gun.
On March 13, 1972, officers in a police cruiser saw appellant on the street. A warrant had been issued for his arrest in connection with the robbery, so he was stopped, arrested, and patted down. A .22 caliber revolver was found in the waistband of his trousers. At trial the bartender testified that he believed this to be the gun appellant had used in the robbery.
The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania is that consolidation is proper (i.e., the denial of a motion for severance is not an abuse of discretion) if (1) the facts and elements of the two crimes are easily separable in the minds of a jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other. Commonwealth v. Irons, 230 Pa. Superior Ct. 56, 62, 326 A.2d 488, 491 (1974), interpreting the plurality decision in Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). See also Commonwealth v. Mullen, 228 Pa. Superior Ct. 207, 324 A.2d 410 (1974) (charge such that jury could not easily separate the crimes, despite possibility of common scheme).
In the present case the first of these two requirements was met, for the crimes charged are relatively simple, and the proof of the elements of each was not complex. The double ...