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COMMONWEALTH PENNSYLVANIA v. JAMES TOLASSI (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES TOLASSI, JACK YOCUM, JAMES SHIRLEY, MICHAEL O'BRIEN, JOSEPH O'BRIEN, RUSS COLUMBO, JOSEPH TAYLOR, ROBERT LAYTON, JR., RICHARD MCLAIN, MAX HINKEL, III, MICHAEL DOLINSKI, APPELLANTS



Nos. 162/172 October Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal, Montgomery County, Imposed September 3, 1975 at No. 663, October Term, 1972, C.A. Nos. 4041, 4043; C.A. Nos. 4044/4046; C.A. Nos. 4047/4049; C.A. Nos. 4050, 4052; C.A. Nos. 4053/4055; C.A. Nos. 4056/4058; C.A. Nos. 4059/4061; C.A. Nos. 4066/4068; C.A. Nos. 4072/4074; C.A. Nos. 4084/4086; C.A. Nos. 4087, 4089.

COUNSEL

Robert F. Simone, Philadelphia, for appellants.

William T. Nicholas, First Assistant District Attorney, Norristown, with him Milton O. Moss, District Attorney, Norristown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 258 Pa. Super. Page 198]

The instant appeal follows appellants' convictions for various offenses arising from the destruction of a construction site in Montgomery County on June 5, 1972. There is no reason to set forth at length the facts of the incident in this opinion, as we have already done so in the related case of Commonwealth v. Reeves, 479 Pa. Super. 146, 387 A.2d 877 (1978). Suffice it to say that the investigation of the incident and the trials of those accused of participating in it were long and arduous. Because of the verisimilitude of the two trials many of the issues raised on appeal in the instant case are the same as those raised in Reeves.*fn1 On the other hand, the trials were not concurrent, so that the nature and

[ 258 Pa. Super. Page 199]

    extent of the publicity which attended the trial of appellants in this case was different. In fact, because the trial in the instant case occurred more than three months after the trial in Reeves, adversely inflammatory publicity had substantially abated. In large part for this reason, as will be explained more fully hereinafter, we do not find that the trial court in the instant case abused its discretion in refusing to sequester the jury or in refusing to inquire more frequently into the exposure of the individual jurors to prejudicial publicity. Furthermore, finding no reversible error in appellants' additional contentions, we will affirm the judgments of sentence.

First, appellants argue that the trial court erred in refusing to grant their requests for severance prior to trial. The thrust of appellants' argument appears to be that the number of defendants in this case (fourteen), together with nature of the Commonwealth's identification evidence (entirely photographic), collaborated to deny the individual appellants a fair trial. We disagree. This case was already the product of a severance. Of the twenty-three persons initially charged with playing an active part in destroying the construction site and its equipment, nine were severed for trial in Commonwealth v. Reeves, supra. The remaining fourteen, eleven of whom were convicted and have appealed, were tried in this case, and all of these defendants were charged with the same offenses; to wit, conspiracy, riot, and malicious destruction of fences.

[ 258 Pa. Super. Page 200]

The general rule is that questions of consolidation or severance of defendants for trial rest in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for a manifest abuse of discretion. See Commonwealth v. Hirsch, 225 Pa. Super. 494, 311 A.2d 679 (1973); Pa.R.Crim.P. 219(d). In addition, when a conspiracy is alleged the defendants should usually be tried together. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688; Commonwealth v. Schwartz, 210 Pa. Super. 360, 233 A.2d 904 (1967), aff'd 432 Pa. 522, 248 A.2d 506, cert. denied 398 U.S. 957, 90 S.Ct. 2161, 26 L.Ed.2d 541; United States v. Page 200} Segal, 534 F.2d 578 (3rd Cir. 1976). The American Bar Ass'n Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance (1968) support the trial judge's order refusing severance in the instant case. In the commentary to Section 2.3(b) of the Standards the advisory committee recommends consideration of three factors in reaching a decision on severance: (1) Whether the number of defendants or the complexity of the evidence as to the several defendants is such that the trier of fact probably will be unable to distinguish the evidence and apply the law intelligently as to the charges against each defendant; (2) Whether evidence not admissible against all the defendants probably will be considered against a defendant notwithstanding admonitory instructions; and (3) Whether there are antagonistic defenses. In the trial of the instant case, all the evidence was admissible against all the defendants, and there were no antagonistic defenses presented. While fourteen is a large number of defendants to be joined for trial, it must be remembered that proof of the corpus delicti of the various crimes charged in this case was identical for all the defendants. The only difficulty posed by joinder was that the jurors had to match photographs of the participants of the crime with the various faces and physiques of the men charged as defendants. On the other hand, both the trial in Commonwealth v. Reeves, supra, and the trial in the instant case were extraordinarily long trials, and the interests of administration of justice as well as the individual defendants' rights to speedy trials offered heavy counterweights to severance.*fn2 In light of these factors, and the absence of any showing of actual prejudice, we cannot find that the trial court abused its discretion in failing to grant severances to the various defendants.

[ 258 Pa. Super. Page 201]

Second, appellants argue that the trial court erred in denying their motion for a change of venue. Once again, dispositions of motions for change of venue rest within the sound discretion of the trial court. Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974). Alluding to the standards laid down in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), our Supreme Court in Commonwealth v. Powell, 459 Pa. 253, 259-60, 328 A.2d 507, 510 (1974) stated:

"Extensive pretrial publicity within a county or district does not necessarily preclude a fair trial in that community. If the court is satisfied that an objective, open-minded jury can be selected from among the members of the community exposed to the publicity, it need not grant a change of venue."

Thus, ordinarily a court should not grant a motion for a change of venue until "it is determined after hearing that a fair and impartial trial cannot be held in the county in which the complaint was filed." Pa.R.Crim.P., Rule 312(a). As in Commonwealth v. Powell, supra, the trial judge in the instant case understood his obligation to probe the prospective jurors on individual voir dire to ascertain whether any had formed a fixed opinion of appellants' guilt. Commonwealth ...


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