No. 384 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Section, Nos. 76 - 10 - 462 - 463 - 2436
Margaret M. Boyce, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Gates and Dowling, JJ.*fn*
[ 276 Pa. Super. Page 59]
The appellant was convicted of two counts of rape and one count of involuntary deviate sexual intercourse in connection with a sexual assault on two female complainants. Appellant was sentenced to a term of imprisonment of ten to twenty-years, following which he brought this appeal. Being convinced that the diverse grounds for relief advanced by the appellant are either without merit, or too trivial to warrant reversal, or both, we affirm.
The appellant, who is represented by new counsel on this appeal, contends that his trial counsel was ineffective in filing an untimely motion to sever the appellant's trial from that of his three co-defendants. Since counsel cannot be deemed ineffective for failing to pursue a motion that has no probability of success, Commonwealth v. Roach, 479 Pa. 528, 530-531, 388 A.2d 1056, 1057 (1978), it is first necessary to assess the merits of the underlying claim.
The granting of separate trials lies within the sound discretion of the trial court, whose judgment will not be disturbed absent a manifest abuse of that discretion. Commonwealth v. Tolassi, 258 Pa. Super. 194, 392 A.2d 750 (1978). Appellant first argues that severance was required because the evidence introduced to convict his co-defendants of crimes for which he had previously been acquitted would inevitably redound to his detriment in his retrial for rape and involuntary deviate sexual intercourse.*fn1
[ 276 Pa. Super. Page 60]
All of the crimes charged grew out of a single, protracted incident of about four hours duration, in which the complainants were repeatedly victimized by the defendants in the former's apartment. Under these circumstances, it remained open for the prosecution to prove the appellant's complicity in the commission of crimes which he had been absolved of committing directly. Consequently, we find that the evidence complained of was admissible against the appellant under a theory of accomplice liability, notwithstanding his earlier acquittal for three of the offenses involved. Having so held, we must reject appellant's related claim that by charging the jury on complicity, the lower court violated the Fifth Amendment's double jeopardy clause by virtue of his previous conspiracy acquittal.*fn2 The jury in this trial could have reasonably found that despite the absence of an agreement, the appellant's actions aided his co-defendants in their criminal activity. Therefore, the partial overlap in the statutory definitions of conspiracy and accomplice liability does not preclude a prosecution for the latter after an acquittal for the former.
It is next urged that separate trials were necessary because of the Commonwealth's introduction of a confession by appellant's co-defendant which, in its original form, contained incriminating references to the appellant. Although the statement was redacted by the trial court to eliminate all inculpatory references to the appellant by name, it is claimed that the retention of plural pronouns, in lieu of proper names, tacitly implicated the appellant and thereby violated his Sixth Amendment right of confrontation. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The confession reads as follows:
[ 276 Pa. Super. Page 61]
"On Tuesday, August 17, 1976, at approximately 2:30 am, we went to this house on Hunting Park Avenue. We sat in the car and I saw a girl I know from the neighborhood sitting on the porch. One of us, I'm not sure, went over and began to talk with her. The next thing I remember ...