No. 134 January Term, 1979, Appeal from the Judgment of the Superior Court of Pennsylvania at 43 October Term, 1978, affirming the Judgment of Sentence of the Court of Common Pleas of Cumberland County, Pennsylvania, 473 Criminal, 1976.
Taylor P. Andrews, Public Defender, for appellant.
Edgar B. Bayley, Dist. Atty., Theodore Smith, III, J. Michael Eakin, Asst. Dist. Attys., for appellee.
Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., did not participate in the consideration or decision of this case.
On September 22, 1976, in the Court of Common Pleas of Cumberland County, the appellant Jeffrey S. Chase, was convicted of burglary. An appeal was taken to the Superior Court, and the judgment of sentence was affirmed.*fn1 Subsequently, this Court granted a petition for allowance of appeal.
Appellant and a co-defendant were arrested at the scene of a burglary. At the time of the arrest, police officers discovered an unlicensed firearm and certain stolen property, not connected with the instant burglary, in the co-defendant's vehicle parked nearby. Appellant was subsequently indicted for burglary, and the co-defendant was indicted for possession of an unlicensed firearm and for receiving stolen property. Both indictments were consolidated for trial.
Five days prior to trial, appellant filed a motion to sever the indictments, contending that he would be prejudiced by being tried on the common count of burglary while the co-defendant was also being tried on the firearms and stolen property charges, which arose from the same arrest, but which were not related to the burglary. The motion for severance was denied by the trial court because, inter alia, the motion was untimely. At the ensuing jury trial, appellant was convicted of burglary.
Under the Rules of Criminal Procedure in effect at the time of appellant's trial, pretrial applications for severance were authorized by Pa.R.Crim.P. 304. Commonwealth v. Smith, 457 Pa. 638, 326 A.2d 60 (1974). However, Pa.R.Crim.P. 305 provided that "no pretrial application shall be considered if made less than ten days before trial unless opportunity therefore did not exist or the defendant or his
attorney was not aware of the grounds for the application." (Emphasis added).*fn2 In the instant case, the motion to sever was filed five days before trial, and there is no suggestion in the record that the opportunity to file application for separate trials did not earlier exist or that appellant or his counsel was not aware of the possibility of requesting a severance. Hence, appellant's failure to make a timely motion for a separate trial precludes relief on this claim. Commonwealth v. Smith, supra; See Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d 68, 69 (1978); Commonwealth v. Brown, 462 Pa. 578, 586, 342 A.2d 84, 88 (1975).
Appellant's second claim is that the trial court erred in denying a mistrial after a co-defendant testified on direct examination that he gave the handbag to appellant in order for appellant to search through the handbag for names which might have been associated with a fire that occurred at the co-defendant's house. Appellant contends that since the co-defendant testified that he took the handbag from the living room of a third person's residence, the further testimony that appellant searched the handbag for names implicated the appellant in another crime, with which he was not charged, and which had the effect of tainting the trial. The appellant's claim notwithstanding, there was no prejudice here because there was no indication in the testimony that appellant was aware that the handbag had been stolen. As the trial court found, "the evidence shows only that Chase ...