Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 737-81.
David Del Pizzo, Assistant Public Defender, Norristown, for appellants.
Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Wieand and Lipez, JJ.
[ 327 Pa. Super. Page 223]
Herbert Thomas and Arthur Gelormo were tried jointly on charges arising from a robbery on April 21, 1979 at the residence of Richard Tarus in Upper Providence Township, Montgomery County. The jury which heard the evidence found Gelormo guilty of robbery, burglary, theft, recklessly endangering another person, terroristic threats and conspiracy. The same jury found Thomas guilty of criminal conspiracy. Post-verdict motions were denied, and sentences of imprisonment were imposed. Separate appeals were filed and consolidated for argument. We will consider the following arguments advanced by both appellants: (1) that
[ 327 Pa. Super. Page 224]
the trial court should have quashed the informations because the District Justice denied a defense request to continue the preliminary hearing in order to allow defendants additional time within which to employ the services of a stenographer; (2) that the trial court erred in denying a defense request for the appointment of an independent, ballistics expert; and (3) that the trial court erred in refusing to order the prosecuting attorney to obtain during trial an amended plea agreement entered by a Commonwealth witness and the District Attorney of Chester County.*fn1 Thomas argues separately that he was prejudiced by the trial court's erroneous denial of his pre-trial motion for severance and by an excessive sentence. We will discuss these issues seriatim.
At or about 1:00 a.m. on April 21, 1979, according to the Commonwealth's evidence, Gelormo entered the Tarus home wearing a stocking over his head and brandishing a pistol. He ordered Tarus' house guest, Kevin Darula, to bind Tarus with the telephone cord; and, after this had been accomplished, he ordered Darula to remove a valuable ring and cash from Tarus' person. When Tarus protested, Gelormo discharged the weapon. Darula thereupon took the ring and money from Tarus and handed it to Gelormo, following which Gelormo locked Darula in the cellar and fled. The robbery remained unsolved for almost two years until Richard Falasco, who had been arrested with Gelormo for numerous offenses in Chester County, gave a statement regarding the Tarus robbery. He said that Thomas had supplied the gun used by Gelormo in the Tarus robbery
[ 327 Pa. Super. Page 225]
while he, Falasco, had driven Gelormo to Tarus' home and waited with the car while Gelormo entered the home. After the robbery had been committed, Falasco and Gelormo returned to a bar operated by Thomas and gave him the ring. This was later sold for $1,250, which was divided among the men.
Criminal complaints were filed before District Justice Dorine Sutch, who scheduled a preliminary hearing for March 12, 1981. On that day, the defendants appeared with counsel and requested a postponement so that they might obtain the presence of a stenographer.*fn2 The request for a continuance was denied, and the preliminary hearing proceeded. After the case had been returned to court and informations filed, the defendants moved to quash the informations on grounds that the denial of their motion to continue the preliminary hearing had deprived them of the right to have the proceedings recorded stenographically. The trial court concluded that the District Justice's denial of the defendants' motion for a continuance had not been an abuse of discretion and had not violated the defendants' rights to due process. Therefore, the motion to quash the information was denied.
Pa.R.Crim.P. 142 provides that a District Justice "may" grant a continuance of the preliminary hearing "for cause shown."*fn3 Whether to grant a motion for continuance is discretionary with the District Justice, and an order granting or refusing a continuance of a preliminary ...