NO. 216 PHILA. 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Lycoming County, Criminal No. 81-10,200 81-10,432
George Edward Lepley, Jr., Public Defender, Williamsport, for appellant.
Kevin H. Way, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Spaeth, President Judge, Hester and Lipez, JJ.
[ 323 Pa. Super. Page 50]
This is an appeal from judgments of sentence. Two informations were consolidated for trial, and on October 6 through 9, 1981, appellant was tried before a jury. In case No. 81-10,200 (McLaughlin case) appellant was found guilty of burglary, rape, involuntary deviate sexual intercourse, terroristic threats and simple assault. In case No. 81-10,432 (Cooper case) appellant was found guilty of rape, burglary and terroristic threats. On December 21, 1981, appellant was sentenced to a total of 21 to 42 years imprisonment. We affirm.
[ 323 Pa. Super. Page 51]
Prior to trial the Commonwealth filed a motion to consolidate the Cooper and McLaughlin cases. Appellant then filed an omnibus pretrial motion, in which he moved to suppress his statement to the police; to suppress any in-court identification of him by Mrs. McLaughlin; to suppress certain real evidence seized by the police; for a change of venue or, in the alternative, a change of venire; and for individual voir dire. Following hearings on August 6, 10, and 24, 1981, the trial court by opinion and order dated September 23, 1981, granted the Commonwealth's motion to consolidate; denied appellant's motions to suppress; denied appellant's motion for a change of venue or venire; and granted appellant's motion for individual voir dire. On appeal, appellant argues that the trial court erred in granting the Commonwealth's motion to consolidate and in denying his several motions to suppress and his motion for a change of venue or venire. He also argues that his trial counsel was ineffective.
Appellant argues that the Cooper and McLaughlin cases were not sufficiently similar to warrant consolidation, and that he was unduly prejudiced by the consolidation.
Whether to consolidate the informations was a decision within the discretion of the trial court, and the decision will not be reversed absent an abuse of discretion. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Larkins, 302 Pa. Super. 528, 449 A.2d 42 (1982). Consolidation is proper if the facts of each offense are easily separable, and evidence of one offense would have been admissible in a separate trial for the other offense.*fn1 Commonwealth v. Morris, supra; Commonwealth v. Larkins, supra; Commonwealth v. Galloway, 302 Pa. Super. 145, 448 A.2d 568 (1982); Commonwealth v. Taylor, 299 Pa. Super. 113, 445 A.2d 174 (1982); Commonwealth v. King, 290 Pa. Super. 563, 434 A.2d 1294 (1981).
[ 323 Pa. Super. Page 52]
The Cooper case involved an attack on Mrs. Cooper, 24 years old, in her home between 6:30 and 7:00 a.m. on November 25, 1980. The assailant slit the screen and forced open a cellar window to enter the home. Mrs. Cooper was in bed asleep at the time. The assailant used the victim's robe to cover her face and thereby hide his identity. The assailant had a strange voice. His speech was mumbled and garbled and hard to understand. He weighed approximately 150 pounds. He threatened the victim verbally and with the use of a knife or sharp object. He penetrated the victim and performed oral sex on her.
Following the attack, it was found that light bulbs in the bathroom adjacent to the victim's bedroom had been removed and placed in the waste basket. Boot impressions were found in the cellar and in the yard. In addition, a small hunting knife was found in the yard.
The McLaughlin case involved an attack on Mrs. McLaughlin, 30 years old, in her home at approximately 7:00 a.m. on February 20, 1981. The assailant entered the home as Mrs. McLaughlin opened the front door to leave for work with her daughter. The assailant opened the door and pushed the victim back into the house. The assailant forced the victim to the couch and told the daughter to go upstairs. His voice was deep and raspy and hard to understand. The assailant threatened the victim verbally and with a cold, thin, metal object. The assailant pulled the victim's coat over her head, attempting to hide his identity. He penetrated her and forced her to perform oral sex on him. The victim started to fight, there was a knock on the door, and the assailant fled. He wrestled with Officer Albright on the front lawn and then ran away.
Following the attack, it was found that the screen on a rear window of the house had been slit and entry attempted through the window. The globe on an outdoor light near the window was cracked and the bulb unscrewed. Boot impressions were found on the victim's coat and in the yard. Leather gloves were found on the coffee table and a small
[ 323 Pa. Super. Page 53]
knife was found on the couch. The assailant's knit ski hat was ...