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COMMONWEALTH PENNSYLVANIA v. ROY CARROLL (02/22/80)

filed: February 22, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
ROY CARROLL, APPELLANT



No. 2475 October Term, 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal Division, No. 42-78.

COUNSEL

John DiCicco, Assistant Public Defender, Norristown, for appellant.

John J. Burfete, Assistant District Attorney, Norristown, submitted a brief on behalf of Commonwealth, appellee.

Hester, Hoffman and Catania,*fn* JJ. Hoffman, J., concurs in the result.

Author: Hester

[ 275 Pa. Super. Page 243]

This is an appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County. Appellant was convicted of recklessly endangering another person, disorderly conduct, possession of a prohibited offensive weapon, and two violations of the Uniform Firearms Act. Post verdict motions were denied and a sentence of 2 1/2 to 5 years on the firearms violations was imposed; sentence on the other charges was suspended.

Initially, appellant contends that the court erred in failing to sever the charge of "Former convict not to own a firearm", 18 Pa.C.S. ยง 6105, from the other charges.

The lower court refused appellant's motion for severance based on Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) on remand 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) which held that a prosecutor is required to bring, in a single proceeding, all known charges against a defendant arising from a single criminal episode. The court found that no unjust prejudice to the appellant would result from the consolidation. Thus the motion was denied.

[ 275 Pa. Super. Page 244]

Here there is no question that all the charges brought against appellant arose out of the same criminal incident.

However, we see no problem with Campana, supra. Clearly if a defendant requests and is granted a severance, he cannot later raise an objection claiming a violation of the principles enunciated in Campana. See Commonwealth v. Green, 232 Pa. Super. 134, 335 A.2d 493 (1975).

Our determination of whether the lower court properly exercised its discretion in refusing the appellant's motion to sever rests on whether appellant was unduly prejudiced by this failure.

The claim of possible prejudice in a jury's consideration could be claimed in every case where charges are consolidated. However, more than a bare claim of possible prejudice is required to support a reversal. ...


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