No. 801 Pittsburgh 1983, Appeal from the Judgment of Sentence May 23, 1983, of the Court of Common Pleas of Erie County, No. 133 of 1982, Criminal
Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Commonwealth, appellee.
Rowley, Olszewski and Popovich, JJ.
[ 340 Pa. Super. Page 159]
In this case, appellant was convicted of theft, false reports to law enforcement authorities and criminal conspiracy; in this appeal, he seeks either discharge or a new trial. The circumstances from which the charges stem are as follows:
On December 8, 1981, defendant Hill and Selwyn Spearin were truck drivers returning to their employer from a delivery in the South. They held $12,000 in cash, payment for goods delivered. At a truck stop near Erie, they left their truck and bought coffee; Spearin left the shop before Hill and returned to the truck. He claims he saw a person climbing out of the truck with the truck radio under his arm, and, when he tried to stop the thief, was shot. When he was walking toward the shop for help, Hill saw him and helped him. Police were called; a few days after calling in tracking dogs, interviewing potential suspects and performing tests, they arrested Spearin and Hill, charging them with the crimes of which they were convicted. The $12,000 was not recovered.
The co-defendants, who were tried together, appealed separately. Here, appellant Hill makes a number of arguments, many of which focus on the alleged ineffective assistance of trial counsel.*fn1
[ 340 Pa. Super. Page 160]
Our standard for review of ineffective assistance of counsel claims has changed recently; our prior practice had been to remand for a hearing on ineffectiveness whenever such a claim was made on appeal, if no hearing had been held by the trial court. The Supreme Court, however, condemned that practice in Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), and set forth a new procedure; the appellate court is to evaluate the ineffectiveness claims and decide whether they have merit. If they have no merit, no evidentiary hearing is necessary. Id., 505 Pa. at 360, 479 A.2d at 957. Accordingly, we must decide whether appellant's claims have merit.
The prosecutor's summation.
The statements made by the Commonwealth's attorney, appellant alleges, were couched in terms of personal opinions and included misstatements of material evidence.*fn2 On comparing the contested remarks to those made in Commonwealth v. Joyner, 469 Pa. 333, 365 A.2d 1233 (1976), we find the prosecutor did not exceed the bounds of
[ 340 Pa. Super. Page 161]
allowable argument. Appellant's ineffectiveness claim being meritless, there is no need to remand for an evidentiary hearing.
Appellant next argues counsel was ineffective for failing to request a severance of his trial from that of his co-defendant, Selwyn Spearin. Appellant argues that he was prejudiced by the joint trial because the evidence against Spearin was "far greater and more damaging" than against him; his defense potentially conflicted with that of Spearin; Spearin's defense encouraged the jury to question appellant's credibility; and statements inadmissible against appellant in the absence of co-defendant Spearin were admitted, to the detriment of appellant.
We are guided by Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820, cert. denied 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954):
The trial Judge because of his position and for other obvious reasons has been given a discretion to determine whether a number of bills of indictment should be consolidated and tried together, and his exercise of discretion in such matters will not be reversed by an appellate Court unless there has been a manifest abuse of discretion or a joint trial is so unfair as to be clearly unjust and prejudicial to one or more of the defendants. Especially is a joint trial permissible, if not advisable, ...