William J. Rundorff, Henry J. Russo, Asst. Public Defenders, Mercer, for appellant.
Joseph J. Nelson, Dist. Atty., R. F. Banks, Asst. Dist. Atty., Mercer, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., files an opinion in support of affirmance in which O'Brien and Pomeroy, JJ., join. Roberts and Manderino, JJ., file opinions in support of reversal. Nix, J., would reverse. Jones, C. J., did not participate in the consideration or decision of this case.
The Court being equally divided, the Order of the Superior Court is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
This case results from a series of burglaries in a rural area of Mercer County in November and December of 1972. The record discloses the following:
On the morning of November 2nd, the caretaker of Ivan Birsic's trailer, which Birsic had placed on his
property adjoining a dirt road approximately one mile from Pennsylvania Route 19 and two miles from the Pennsylvania State Police substation at Mercer, discovered that the gate had been broken by force during the evening or early morning hours. The trailer door was locked, however, and the caretaker had no key, and so it was not until Birsic himself was able to visit the property on November 11th that he learned that all of the furnishings of the trailer had been taken. In order to prevent a recurrence he had a burglar alarm installed which would be activated by the opening of the trailer door. On the night of November 10th-11th an electric saw and a tool box containing tools belonging to John Melhorn were stolen from Melhorn's truck, and during the early morning hours of December 8th a tool box belonging to Glenn Speir and containing specialized tools specifically designed for trailer furnaces was stolen from Speir's truck. On the afternoon of December 18th there was a burglary at the residence of Daniel Gadd in the course of which were stolen -- among other items -- a television set, a U.S. Coast Guard jacket, an extension cord for a razor, and a watch. In the course of investigating this burglary, Officer William Daley of the Pennsylvania State Police discovered distinctive v-shaped tread marks in the snow which he theorized had been made by the burglar. He also learned that a station wagon with wood panelling had been seen near the Gadd residence on the day of the burglary.
While in his home on the evening of December 28th, the Birsic caretaker heard the burglar alarm recently installed at the nearby trailer go off. The caretaker immediately telephoned the State Police in Mercer and told Officer Edward Lancaster of the incident; while he was on the telephone he saw a dark station wagon coming from the direction of the Birsic trailer pass his house. He told the officer he was going to follow the car and hung up.
Officer Lancaster promptly began to drive toward the Birsic trailer; he soon reached the point on Route 19 where the dirt road which adjoins the Birsic property meets the highway. He there saw a station wagon with wood panelling on the sides and followed closely by another car about to pull off the dirt road onto Route 19. At this point the officer was aware not only that the caretaker was going to follow the suspicious car on this apparently little-used road, but that earlier in the day he had read a notice on the barracks bulletin board indicating that Officer Daley was looking for a station wagon with wood panelling in connection with his burglary investigations. The notice, however, actually described the station wagon with wood panelling as red, a late model, and either a Chrysler or a Plymouth. The station wagon observed by the officer on December 28th was a blue 1968 Mercury.
As the station wagon pulled onto Route 19, Officer Lancaster halted it and was then told by the driver of the second car that he was the caretaker who had just called the State Police. The driver of the station wagon identified himself as Albert Andrew Lasch. However, he was unable to produce a driver's license and admitted that his operating privileges were under suspension in Pennsylvania. Subsequently the officer learned by radioing the barracks that Lasch had had multiple convictions for driving without a license; he therefore arrested Lasch, took him into custody, and had him arraigned for the misdemeanor of driving a motor vehicle more than once while under suspension.
Meanwhile Officer Daley, who had investigated the previous burglary at the Birsic trailer, proceeded to the site of the trailer where he found footprints in the snow and mud, each with a v-shaped tread which seemed identical to what he had seen in the snow at the site of the Gadd burglary. He also discovered that, although the door handle was in a locked position, the door of the
trailer could be popped open by a hard bump with the shoulder and that the burglar alarm would only go off when the door was open. Nothing, however, appeared to be missing. Subsequently the officer advised Lasch of his Miranda rights, and the latter stated that he understood them and that he was willing to answer questions. He also gave the officer permission to examine his shoes, which were muddy and had a v-shaped tread matching the footprints discovered that night at the Birsic trailer and previously at the Gadd residence; a search warrant was later obtained for the shoes.
Subsequently warrants were also obtained to search both the station wagon and Lasch's residence. Among the items found in the car were tool boxes and a power saw which Speir and Melhorn respectively identified as those that had been taken from their trucks. The search of Lasch's residence revealed a dining room table, dining room chairs, lamps, pots and pans, and an electric sweeper all subsequently identified as items taken in the first Birsic burglary, and a television set, U.S. Coast Guard jacket, and extension cord for an electric razor each subsequently identified as those taken in the Gadd burglary. In addition, a watch had been stolen from the Gadd home. While Lasch was being fingerprinted, Officer Daley asked to see the watch he was wearing and copied the serial numbers. Although Lasch told the officer that he had purchased the watch from a jewelry store in Sharon, the serial numbers matched those of a watch purchased by Gadd from a jewelry store in Grove City. Subsequently, when Officer Daley asked Lasch for the watch pursuant to a search warrant, the latter insisted that the officer had never returned it to him; the watch was never recovered.
Lasch was indicted on separate bills charging him with burglary, larceny, and receiving stolen goods in connection with, respectively, the Birsic and Gadd residences and the Speir and Melhorn trucks. He was additionally
charged in a fifth bill of indictment with operating a motor vehicle while his Pennsylvania driver's license was under suspension, a misdemeanor because not a first offense.*fn1 Pursuant to a motion by the district attorney under Rule 219(b) of the Pennsylvania Rules of Criminal Procedure and over the timely objection of Lasch, the trial court consolidated the five indictments into a single trial. Before the consolidated case was submitted to the jury, the judge dismissed the charges of burglary and larceny with regard to Melhorn's truck; subsequently the jury acquitted Lasch of burglary and larceny with regard to Speir's truck. Lasch was ultimately convicted of burglary, larceny, and receiving stolen goods in connection with the Gadd and initial Birsic break-ins, of attempted burglary in connection with the second Birsic break-in, and of receiving stolen goods in connection with both the Melhorn and Speir thefts; in addition, he was convicted of driving while under suspension. He was sentenced to two and a half to six years imprisonment on each of the burglary convictions and to lesser or suspended terms for the other convictions, all sentences to be served concurrently. Lasch filed an appeal in the Superior Court which later affirmed the judgments of sentence in a unanimous per curiam order, 229 Pa. Super. 708, 323 A.2d 251 (1974). This Court then granted allocatur for the limited purpose of passing on the propriety of the consolidation of the various indictments into a single trial.
The general policy of the law is to encourage joinder and consolidation when judicial economy can thereby be effected, especially when the result will be to avoid the expensive and time-consuming duplication of evidence. But this laudable interest in judicial economy must be weighed against the need to minimize the prejudice that can be caused a defendant required to defend
against separate crimes in a single trial. The relevant rules and cases provide standards for the striking of the necessary balance between these sometimes competing judicial interests, but each case must be independently decided on the basis of the inter-relationship of the charges sought to be consolidated or severed and the nature of the evidence available to prove them.
Although Pa.R.Crim.P. 219(b) provides on its face only for joinder of separate offenses in a single indictment,*fn2 this Court has treated it as equally applicable to the consolidation of separate indictments. Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). Thus, the first task is to determine whether the separate indictments ...