Appeal from the Judgment of Sentence entered in the Court of Common Pleas, Criminal Division, of Erie County, 1264 of 1983. (No. 1380 Pittsburgh, 1984).
Terrence P. Cavanaugh, Erie, for appellant.
Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.
Rowley, Olszewski and Del Sole, JJ.
[ 346 Pa. Super. Page 397]
This is an appeal from a judgment of sentence imposed following a jury verdict finding appellant guilty of burglary, receiving stolen property and criminal conspiracy. Appellant filed an Omnibus Pre-Trial Motion which included a motion for discovery, a motion to suppress appellant's confession, a motion to quash the information, and a motion to sever appellant's trial from that of his co-defendant. After a full hearing, the trial court granted the motion for discovery. The motion to quash, the motion to suppress and the motion to sever the trial of the co-defendant were denied. Upon the jury's verdict of guilty on all three charges, appellant was sentenced to four to eight years imprisonment for burglary and criminal conspiracy, and was given a suspended sentence, upon payment of costs and restitution, for receiving stolen property.
Appellant was found guilty of breaking into a private residence with two friends. They removed from the house two lamps, a cuckoo clock, a coffee maker and various pictures and food, which they hid in the woods to be retrieved at a later time. The police were given a tip that appellant might have information about this crime and after questioning at the police department, appellant signed a statement admitting his involvement.
Appellant raises four issues on appeal: first, whether the trial court erred in denying his motion to sever his trial
[ 346 Pa. Super. Page 398]
from that of his co-defendant; second, whether the trial court erred in denying his motion to suppress his statement and in allowing it to be introduced in evidence at trial; third, whether the trial court erred in allowing the Commonwealth to call a witness, Leonard Jordan, in view of the fact that the first time appellant was notified that Jordan would testify was during jury selection, and further, in refusing to allow appellant the opportunity to impeach Jordan's testimony by reference to his testimony under oath at an unrelated preliminary hearing; and fourth, whether the trial court abused its discretion by imposing a four to eight year sentence and in not modifying it upon timely demand. Because we find no error or abuse of discretion, we affirm.
Appellant argues on appeal that because of inconsistent defenses between his co-defendant and himself and prejudice to him as a result of a statement given to the police by his co-defendant which was introduced in evidence at trial, the trial court erred in refusing to sever his trial from that of his co-defendant. In his pre-trial motion, appellant argued that because he was not a major actor in the crime and because of the lack of evidence against him, it would severely prejudice his case to be tried with his co-defendant. Because the reasons for severance were different in appellant's pre-trial motion from those being asserted on appeal, the Commonwealth maintains that this argument has been waived pursuant to Pa.R.Crim.P. 9020(d) which provides that:
(d) The failure, in any motion, to state a type of relief or order, or a ground therefor, shall constitute a waiver of ...