No. 328 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Nos. 2219/2223 January Term, 1975.
Steven Morley, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files an opinion in support of affirmance in which Jacobs, President Judge, and Price, J., join. Spaeth, J., files an opinion in support of reversal in which Hoffman and Cercone, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The six Judges who decided this case being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant Bernard Morris was arrested on January 10, 1975, by a member of the Philadelphia Housing Police, in connection with robberies that had been committed on January 2 and January 7 of 1975. Appellant's motion for severance was denied, and appellant was tried July 1-8, 1975, for both offenses. A jury found appellant guilty of both robberies, and appellant was sentenced on October 6, 1975 to consecutive one to three year terms of imprisonment. The case is before us on direct appeal from the judgments of sentence.
Appellant first argues that the lower court erred in denying appellant's request for a prior statement of a complaining witness. On cross-examination, the victim of the second robbery mentioned that she had given an oral statement to the Philadelphia Housing Police, and had seen one of the Housing Policemen write it down. Appellant's attorney asked for a copy of the statement, but let the matter
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drop when the Assistant District Attorney said that he did not have a copy of any such report. A witness who testified later in the trial mentioned on cross-examination that he had seen a copy of a report concerning "the second robbery", a robbery involving a woman on an elevator in the Cambridge Apartments. Appellant's attorney asked to see a copy of the report, but the trial judge deferred ruling on the request at that time. On further questioning of the witness, it was brought out that the witness did not know who had written the report and did not actually know who had been the victim in the report.*fn1 Appellant's attorney then let the matter drop, and no ruling was ever made concerning the earlier request. Under the circumstances, there was no error on the part of the trial court in not granting the request for an obscure document.
Appellant's second argument is that the lower court erred in denying his motion to sever the trials for the two robberies. It is clear that the consolidation of indictments which charge separate and distinct offenses is a matter within the discretion of the trial judge, whose conclusion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). In Commonwealth v. Irons, 230 Pa. Super. 56, 326 A.2d 488 (1974), our court interpreted the Supreme Court's Peterson decision*fn2 to mean that there would be no "abuse of discretion" if the crimes were easily separable in the minds of the jurors, and if evidence of one crime would have been admissible at a separate trial for the other crime.*fn3 An examination of the notes of testimony in the case before us reveals
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that the two crimes were clearly delineated for the jury and were not likely to cause confusion; a review of the case law reveals that evidence of either robbery would have been admissible at a trial for the other robbery.
Although the Supreme Court reversed in Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955) because different types of crimes were involved, the court there stated that evidence of separate, distinct crimes would be admissible where the former alleged crimes "are of the same nature as the one under trial and indicate a general intent or design on the part of the accused to conduct, for example, a series of similar robberies, or murders, or sex offenses, or poisonings . . . or the like; in other words, the prior criminal act or acts are evidential only if clearly constituting part of a chain, system, composite plan or scheme." 380 Pa. at 47, 110 A.2d at 195. In Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963), cert. denied, 377 U.S. 999, 84 S.Ct. 1930, 12 L.Ed.2d 1049 (1964), the appellant had been convicted of murdering a person whom he had lured to a particular address under the pretext of helping that person find a prostitute. The Supreme Court upheld the lower court's admission of evidence of an assault which the appellant had committed under similar circumstances on another person one week prior to the murder. The court stated that "proof of the commission of a crime of the same nature, not too distant in time, may be admitted to show plan, scheme, motive and design." 412 Pa. at 199, 194 A.2d at 152. In Commonwealth v. Gilmore, 447 Pa. 21, 288 A.2d 757 (1972), two men, one armed with a knife or razor, had, on four separate occasions within a sixteen day period, attacked and robbed individuals on the same stairwell of a bus terminal. The court held that evidence of the first three attacks had been properly admitted at the appellant's trial for the fourth incident, in order to show "plan and design." In Commonwealth v. Smith, 443 Pa. 151, 277 A.2d 807 (1971), the appellant had been involved in three gas station robberies (the last one involving a gas station/motel), and had been convicted of felony murder in connection with the last one.
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At trial for this offense, the trial court permitted testimony of victims of the first two robberies. The Supreme Court upheld the convictions, finding "a common design and modus operandi relative to all three happenings." Similar examples may be found in Commonwealth v. Borschell, 462 Pa. 605, 342 A.2d 97 (1975) and Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).
The two offenses with which appellant in the case before us was charged were very similar in nature, and indicate a common plan or modus operandi. Appellant chose as his victims women with young children. Appellant got on the elevator with his intended victims, pushed a button for a floor higher than the floors selected by the other people on the elevator, waited until the victims and children were alone with him, then stopped the elevator by use of the stop button or by holding the door open with his leg. Appellant robbed his victims by using force and threat of harm to the victims and their children, searched the victims' bras for money, then made his escape by running through the breezeway into the adjoining building. The robberies were committed in the same apartment complex, in the early evening, only five days apart. The crimes involved in this case were clearly at least as similar as the crimes in the cases previously cited herein. Evidence of either robbery would have been admissible at a trial for the other.
One additional case, Commonwealth v. Lehman, 166 Pa. Super. 181, 70 A.2d 404 (1950), is even more on point. In Lehman, a defendant's motion for severance of indictments charging separate and distinct offenses had been denied by the lower court. On appeal, our court found no abuse of discretion in consolidating the offenses:
"The indictments in these cases were closely related in that they charged similar offenses, committed within a month of each other within the same general area of Montgomery County. The propriety of the consolidation was demonstrated by the evidence at the trial. Although there were two distinct burglaries and robberies, in combination, yet the methods used were similar in all material respects. . . ." 166 Pa. Super. at 182, 70 A.2d at 405.
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The court went on to review the similarities of the two crimes, concluding that the defendant had not been prejudiced by the consolidation. The robberies in the case before us were as similar to each other as the crimes which were consolidated for trial in Lehman.
Appellant's assignments of error in the case before us are without merit. The judgments of sentence should be affirmed.
Opinion IN SUPPORT OF REVERSAL
Appellant was charged with two robberies. The charges were tried together. The issue is ...