No. 472 January Term, 1978, Appeal from an Order of the Superior Court Affirming by an equally divided court the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County at January Term, 1975, Nos. 2219 and 2221
John W. Packel, Chief, Appeals Div., Karl Baker, Asst. Defender, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Andrew Cohn, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion.
Appellant, Bernard Morris, was convicted by a jury of two robberies and sentenced to consecutive prison terms of one of three years. Although the robberies stemmed from two separate incidents which occurred five days apart and there was a separate information for each robbery, appellant was tried for both offenses in one proceeding; his motion for separate trials on the two informations was denied. Post-verdict motions were also denied, and the judgment of sentence was affirmed by an evenly divided Superior Court, 258 Pa. Super. 24, 391 A.2d 653. We granted appellant's petition for allowance of appeal to address the propriety of the trial judge's refusal to grant the motion for severance.
On January 2, 1975, at approximately 6:30 p. m., Geraldine Seawright and her two small children arrived at the public housing apartment building where they lived. As they entered, a man whom they did not know addressed them in a friendly manner and followed them into the lobby where he spoke with a second man while the group waited for an
elevator. After a wait of approximately ten minutes, Mrs. Seawright, her children and the two men walked to the adjoining apartment building to use an elevator there since all floors of the two buildings were connected with breezeways. The second man departed from the elevator on the third floor. Mrs. Seawright pushed the button for the tenth floor and the remaining man pushed the twelfth floor button. Somewhere around the eighth floor, the man pushed the emergency stop button and announced a holdup. Mrs. Seawright insisted that she had no money. The man rejected Mrs. Seawright's offer of her purse and struck her several times while searching inside her brassiere for money. At this point, Mrs. Seawright had been knocked to the floor and held there by the man's foot resting on the side of her face. The man threatened to kill the children and grabbed the face of Mrs. Seawright's daughter. During this time he kept one hand in his pocket as if concealing a weapon. In her struggle, Mrs. Seawright managed to de-activate the emergency stop button, and the elevator door opened at the tenth floor. The man again struck and searched Mrs. Seawright, found a change purse containing $95.00 inside her brassiere and ran from the elevator, through the breezeway, into the adjoining building. Mrs. Seawright went to the apartment of Craig Scott, a relative and a housing authority police officer. Housing and city police arrived, and she gave them a description of the robber.
Five days after the first robbery, on January 7, 1975, shortly before 7:00 p. m., Mrs. Carrie Rodgers and her four-year-old son were waiting in the same building for an elevator. Two other women were also waiting for the elevator, and two men were talking nearby. Mrs. Rodgers, her son, the two women, and one of the men boarded the elevator. The two women got off at lower floors. Mrs. Rodgers pushed the eleventh floor button but, for some reason unknown to her, the elevator stopped at the ninth floor. The man held the door open with his knee and announced a holdup. When she said she did not have any money, the man replied that he would have to search her.
He found food stamps and a small amount of cash in her pockets but nothing in her brassiere. He then tried to take her leather coat. When Mrs. Rodgers told her young son to get his father, the man used the hat she was wearing to gag her. When he succeeded in taking off her coat, he ran from the elevator, through the breezeway, into the adjoining building. She went to the housing authority police to report the robbery and gave a description of the robber.
Officer Scott, on the basis of Mrs. Seawright's description of the man who robbed her, had decided that a man named "Boonie" might be the robber. He asked "Boonie", appellant herein, to go with him to Mrs. Seawright's house. En route, the two stopped at the market where Scott's wife had gone and where Mrs. Rodgers was also at that time. Mrs. Rodgers immediately identified appellant as the man who had robbed her. This identification occurred on January 10, 1975, three days after the Rodgers ...