NO. 913 APRIL TERM, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Beaver County at No. 597 of 1975.
John Alan Havey, Aliquippa, for appellant.
Keith R. McMillen, Assistant District Attorney, Beaver, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Spaeth, J., files a concurring opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 187]
The appellant, Dennis Fiorini, was tried before a jury, adjudged guilty, and sentenced on several narcotics charges. Following the denial of post-trial motions, he filed the instant direct appeal to our Court, solely from his sentence on Beaver Count Indictment No. 597 of 1975, where the charge was for possession with intent to deliver marijuana. He was also found guilty and sentenced on No. 458 of 1975 -- delivery of marijuana; No. 461 of 1975 -- delivery of phenacaine hydrochloride; No. 459 of 1975 and No. 460 of 1975 -- both for conspiracy in the sale of controlled substances.
While there is no appeal from the sentences on the latter four charges, they are significant as appellant contends the lower court erred in permitting the consolidation of all charges in a single trial. More particularly, it is argued first that the Commonwealth was tardy in filing its application for consolidation, and second, that the granting of the consolidation request resulted in prejudice to the appellant. We cannot agree with these contentions.
The record shows that just prior to the selection of a jury, a conference was held in the judge's chambers with the prosecuting and defense attorneys. Several subjects were discussed, including the Commonwealth's evidence on all the charges. The assistant district attorney sought a consolidation of all charges, and the request was granted by the court. The defense attorney raised an objection to the consolidation and renewed the objection on the record at the beginning of the trial.
As noted, the appellant offers two theories in support of this appeal. In claiming that the Commonwealth was tardy in its application for consolidation, appellant maintains that Rules of Criminal Procedure 304 and 305 required that the Commonwealth seek consolidation by written motion at least
[ 257 Pa. Super. Page 188]
ten days prior to trial.*fn1 Next, it is asserted that appellant was prejudiced by the consolidation in that: (1) the jury may have believed the evidence on any of the distinct charges to have indicated a "criminal disposition" on the part of appellant, influencing the consideration of other charges; (2) the jury may have viewed the accumulation of all evidence to justify a conviction on all charges, when if considered separately, it would not have determined guilt on each individual charge; and (3) the appellant did not feel free to testify in defense of the indictment at No. 597 of 1975 because he would have opened the opportunity for the Commonwealth to cross-examine him, and explore possible incriminating responses with respect to the other charges.
In evaluating the appellant's contentions, we must be mindful of the proper standard for ...