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COMMONWEALTH PENNSYLVANIA v. HOWARD JOHNSON (06/23/86)

submitted: June 23, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
HOWARD JOHNSON, APPELLANT



Appeal from the Judgment of Sentence May 2, 1984, in the Court of Common Pleas of Dauphin County, Criminal No. 2432 CD 1982; 490 CD 1983.

COUNSEL

Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.

Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com.

Olszewski, Cercone, and Hester, JJ.

Author: Olszewski

[ 358 Pa. Super. Page 439]

Appellant, Howard Johnson, challenges the denial of his petition for modification of sentence. On May 2, 1984, appellant was sentenced to five to ten years' imprisonment following his jury conviction on five counts of possession with intent to deliver involving heroin and preludin, and one count of possession of marijuana. Appellant argues that: (1) the charges were improperly joined for trial; (2) the trial court abused its discretion by refusing to allow voir dire as to whether any of the jurors or members of their families had ever been the victim of a crime; (3) evidence was improperly admitted at trial; (4) the trial court failed to utilize proper sentencing procedures; (5) trial counsel was ineffective; and (6) the evidence was insufficient to prove intent to deliver. We find appellant's arguments to be without merit, and affirm the judgment of sentence of the Dauphin County Court of Common Pleas.

The charges against appellant resulted when two searches of his residence revealed various controlled substances. The searches took place pursuant to warrant on November 11, 1982, and February 16, 1983. The warrants were issued on the basis of controlled buys. The November 11 search revealed heroin, cocaine, marijuana, and drug paraphernalia. On February 16, heroin, preludin and a large amount of cash, including marked bills from the preceding controlled buy, were found. The charges were joined for trial by May 12, 1983. When the case was called for trial on September 21, 1983, the deputy district attorney moved to sever an assault charge from the drug charges. At that time, appellant's counsel made an oral motion to sever the charges arising out of the two searches. That motion was denied.

We find no impropriety in the trial court's denial of appellant's motion to sever. The joinder of the informations was permissible under Pennsylvania Rule of Criminal Procedure 1127 and was compelled under Section 110 of the Crimes Code. See Commonwealth v. Hude, 500 Pa. 482,

[ 358 Pa. Super. Page 440458]

A.2d 177 (1983). The Rules of Criminal Procedure provide that:

Offenses charged in separate indictments or informations may be tried together if:

(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so ...


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