No. 2282 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 77-04-665-667
Athena M. Dooley, Philadelphia, for appellant.
Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Cirillo*fn* and Hoffman, JJ.
[ 299 Pa. Super. Page 337]
Appellant, Julian Dumas, was convicted at a non-jury trial of bribery, tampering with a witness and criminal conspiracy. He filed post-verdict motions which were denied. Dumas was sentenced to three to eleven months imprisonment in Philadelphia County Prison on each charge. His sentences
[ 299 Pa. Super. Page 338]
were to run concurrently. This appeal followed. We affirm.
Dumas contends on appeal that: (1) his trial counsel was ineffective; (2) the trial court abused its discretion in imposing too severe a sentence; (3) there was insufficient evidence to support a conviction; (4) his demurrers were improperly denied; (5) the trial court erred in admitting prejudicial evidence and the trial court abused its discretion in not granting a mistrial on the basis of the improperly admitted prejudicial evidence.
The record indicates that Dumas and his co-defendant, David Bell, conspired in an attempt to bribe Police Officer Edward Krystopa to testify falsely at a suppression case in which Bell was a defendant.*fn1 On February 7, 1977 and on February 14, 1977, Dumas met with the police to arrange for a bribe. On February 24, 1977, Dumas and Bell were arrested immediately after Bell gave Officer Krystopa $500 in an envelope. This comprised one-half of the bribe payment.
Dumas contends that his trial counsel was ineffective because counsel failed to request a severance of his case from that of co-defendant. We do not agree.
In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-605, 235 A.2d 349, 352-353 (1967), our Supreme Court said:
We cannot emphasize strongly enough, however, that our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, implying a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined
[ 299 Pa. Super. Page 339]
that trial counsel's decision had any reasonable basis.
A trial court may be petitioned for severance of a trial. The decision of that court lies within its discretion and that decision will not be reversed absent an abuse of discretion by the court. The critical factor we examine in determining whether the court has abused its discretion is whether the moving party is prejudiced as a result of the trial court's decision. Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980); Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980).
In Commonwealth v. Sindel, 205 Pa. Super. 355, 364, 208 A.2d 894, 899 (1965), we said:
As to Kulik, the statement charges him with the crime of abortion and not conspiracy to have Dr. Sindel perform an abortion, but there is nothing in the statement to establish a conspiracy between him and Dr. Sindel. Therefore any tacit admission by Kulik of the crime with which the statement charged him could not affect Dr. Sindel or the cases before us. However, we need not decide its effect on the defendant Kulik since we believe the ends of justice require that both appellants should be retried together and a new trial will include him as well as Dr. Sindel. Although coconspirators may be tried separately, Heine v. Commonwealth, 91 Pa. 145 (1879); Commonwealth v. Brown, 23 Pa. Super. 470 (1903), separate trials are not warranted under the circumstances of the present case.
It is apparent that had Dumas' counsel moved for severance of his client's trial from that of Bell, his likelihood of success was very small.
Nevertheless, trial counsel quite reasonably could have opposed making a request for tactical reasons. Dumas was being tried for conspiracy. Trial counsel could have determined that the joint trial would reflect favorably on his ...