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filed: February 17, 1984.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Chester County, Nos. 522-79, 523-79. Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Chester County, Nos. 524-525 of 1979.


Jeremiah F. Kane, Assistant Public Defender, West Chester, for James Hamm, appellant (at No. 1058).

Joseph S. Nescio, West Chester, for Raymond Hamm, appellant (at No. 1059).

Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Spaeth, Wieand and Hoffman, JJ. Spaeth, J., concurs in the result.

Author: Wieand

[ 325 Pa. Super. Page 407]

James Hamm and Raymond Hamm, brothers, were tried together by jury, and each was convicted of two counts of burglary,*fn1 theft by unlawful taking,*fn2 receiving stolen property,*fn3 and criminal conspiracy.*fn4 In this consolidated direct appeal following the denial of post verdict motions and the imposition of sentence, James and Raymond challenge (1) the sufficiency of the evidence to sustain their convictions; (2) the trial court's refusal to sever their cases and try them separately; and (3) the trial court's refusal to grant a mistrial after the assistant district attorney had elicited a purported reference to prior criminal activity on their part. In addition, each brother raises a number of independent issues concerning rulings by the trial court and the conduct of the trial which we will consider seriatim.

"To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict,

[ 325 Pa. Super. Page 408]

    and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact finder is free to believe all, part or none of the evidence."

Commonwealth v. Nunez, 312 Pa. Super. 584, 586, 459 A.2d 376, 376-377 (1983), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979).

Thus viewed, the evidence discloses that on the late night of February 23 or the early morning of February 24, 1978, James Hamm, Budd Beane, and James Griffin broke into the Chester County home of Onah Ryan while Raymond Hamm waited in a parked car. They stole a chair, silver, porcelain, china and jewelry, some of which was later sold for $100. The proceeds were divided among the four conspirators. A few weeks later, on March 17, 1978, James Hamm, James Griffin, and James Dotson burglarized the Chester County home of John Gehron while Raymond Hamm again waited in the car. Stolen from the Gehron home were a coin collection, a watch, and several savings bonds. Proceeds from the sale of some of the stolen items were divided among the four men.

[ 325 Pa. Super. Page 409]

The Hamms do not dispute the occurrence of the Ryan and Gehron burglaries. They argue, rather, that the evidence was insufficient to establish their connection with the crimes because the only evidence thereof was the testimony of a co-conspirator, James Griffin, whose testimony contained several inconsistencies.*fn5 We disagree. It is well settled in Pennsylvania that the guilt or innocence of an accused may rest solely upon the uncorroborated testimony of an accomplice. Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982); Commonwealth v. Page 409} Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Tervalon, 463 Pa. 581, 593 n. 10, 345 A.2d 671, 677 n. 10 (1975); Commonwealth v. Gonce, 320 Pa. Super. 19, 26, 466 A.2d 1039, 1043 (1983); Commonwealth v. Todt, 318 Pa. Super. 55, 62-3, 464 A.2d 1226, 1230 (1983). Griffin did not waver in any way whatsoever in his implication of the Hamm brothers. Therefore, any inconsistencies in his trial testimony regarding details of the several burglaries were for the jury to resolve. See: Commonwealth v. Donald Smith, 502 Pa. 600, 606-07, 467 A.2d 1120, 1122 (1983); Commonwealth v. Sample, 321 Pa. Super. 457, 466, 468 A.2d 799, 803 (1983); Commonwealth v. Curry, 318 Pa. Super. 490, 495, 465 A.2d 660, 662 (1983); Commonwealth v. Ruffin, 317 Pa. Super. 126, 132, 463 A.2d 1117, 1120 (1983); Commonwealth v. Newman, 310 Pa. Super. 493, 496, 456 A.2d 1044, 1045 (1983).

Pursuant to a pre-trial request by the Commonwealth, the trial court consolidated for trial the charges arising against the Hamm brothers as a result of the Ryan and Gehron burglaries. Counsel had no objection to the consolidation of the two sets of burglary and related charges but opposed a joint trial for the two defendants. On appeal, both Hamms argue that they were denied a fair trial because their respective counsel were unable to provide adequate assistance because of differences of opinion regarding trial strategy. In addition, James Hamm argues that he was prejudiced when the cross-examination of Griffin by counsel for Raymond elicited an arguable reference to prior criminal activity on his part. Raymond Hamm contends that because James took the stand and testified in his own defense, while Raymond chose not to testify, he, Raymond, was prejudiced because the jury was able to infer his guilt from silence. These contentions are without merit.

"[Q]uestions of consolidation or severance of defendants for trial rest in the discretion of the trial judge and his rulings on such matters will not be disturbed on appeal except for manifest abuse of discretion." Commonwealth v. Tolassi, 258 Pa. Super. 194, 199, 392 A.2d 750, 753 (1978),

[ 325 Pa. Super. Page 410]

The record also belies James' argument that he was exposed to prejudicial testimony not otherwise admissible because of the consolidation. In response to questions posed on cross-examination of Griffin by Raymond's counsel concerning the witness' role in unrelated murder plots, Griffin stated that James Sampson, whom Griffin wanted killed and who, in fact, had been murdered, was a potential witness against James Hamm. We agree with the trial court that Griffin's statement was not prejudicial. At most, the statement informed the jury that a potential witness against James Hamm had been murdered and implied that the witness may have had something to do with it. James Hamm was neither implicated in the murder nor prejudiced by this cross-examination.

Raymond Hamm was also not prejudiced by James' decision to testify while Raymond elected to remain silent. Although it may be said generally that joint trials should not be ordered where defendants assert antagonistic defenses, see: Commonwealth v. Tolassi, supra, 258 Pa. Superior Ct. at 200, 392 A.2d at 753, in this case there was no inconsistency whatsoever in the defenses presented by the co-defendants. James explicitly denied participation in the burglaries. Raymond also denied participation. See and compare: Commonwealth v. Hartzell, 320 Pa. Super. 249, 467 A.2d 22 (1983). Counsel for both defendants attacked the credibility of Griffin and sought to impeach him on the basis that he had sought leniency in return for his testimony.*fn6 No comments were made concerning Raymond's silence, and no inference of guilt on that basis was permitted.

During direct examination, Griffin stated that he and the other conspirators took gloves with them to the Gehron home. When the prosecutor asked why, Griffin responded that "We usually wore gloves to never leave fingerprints." Both appellants contend that the ...

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