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COMMONWEALTH PENNSYLVANIA v. HERBERT EDWARD THOMAS (02/19/87)

filed: February 19, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HERBERT EDWARD THOMAS, APPELLANT



Appeal from the Judgment of Sentence March 8, 1985 in the Court of Common Pleas of Chester County, Criminal No. 958-80, 960-80, 1033-80, 1034-80.

COUNSEL

Timothy H. Knauer, West Chester, for appellant.

Thomas J. Wagner, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Wieand, Olszewski and Cercone, JJ.

Author: Olszewski

[ 361 Pa. Super. Page 4]

This is an appeal from the judgment of sentence imposed following appellant's conviction, after a trial by jury, for burglary, theft, receiving stolen property and criminal conspiracy. Appellant, Herbert Edward Thomas, asserts as error: (1) the trial judge's decision to consolidate for trial five of the cases against him; (2) the granting of the Commonwealth's petition to extend the time for trial and the denial of appellant's Rule 1100 motion to dismiss; and (3) the denial of appellant's motions for a mistrial relating to testimonial references to his involvement in other crimes.

Appellant was arrested March 13, 1980, along with several other individuals, on approximately twelve criminal complaints charging robbery, burglary, criminal conspiracy and receiving stolen property. The charges all involved burglaries and theft-related offenses allegedly perpetrated by the same group of actors within a 39-day period. As a result, nine of the informations were consolidated for trial.*fn1 Appellant moved to sever the informations and his motion was granted in part, the trial court ordering two separate trials -- one for informations 955, 956, 957, and 1122 of 1980 and the other for informations 958, 959, 960, 1033, and 1034 of 1980. On March 2, 1981, following a trial by jury on the latter group of informations, appellant was convicted on four of five of those informations. Thereafter, on March 19, 1981, appellant filed post-verdict motions, which were denied by the court en banc on February 8, 1985. Appellant was sentenced on February 14, 1985 to a total*fn2 of 14 to

[ 361 Pa. Super. Page 535]

years incarceration on the burglary, theft and receiving stolen property counts and to 20 years probation for criminal conspiracy, each sentence to be served consecutively to the others and to all other sentences previously imposed by other judges. This timely appeal followed.

Initially, we observe that appellant's post-verdict motions were filed seven days late.*fn3 See Pa.R.Crim.P. 1123(a). The trial court nevertheless acted upon and denied each motion. In Commonwealth v. Gregory, 309 Pa. Super. 529, 455 A.2d 1210 (1983), we held that, even though the trial court addresses untimely post-verdict motions on their merits, the issues raised in the motions are waived. If Gregory applies, then appellant waived the issues presented in this appeal.

We are troubled, however, by our notation in Gregory that a waiver could be found because the record disclosed that "the appellant was properly informed of the necessity for filing post-verdict motions and the period in which this must be done . . . ."*fn4 Id., 309 Pa. Super. at 531 n. 3, 455 A.2d at 1211 n. 3. Instantly, neither party raised the issue of the untimeliness of appellant's post-verdict motions. Thus, the Commonwealth did not argue that appellant waived the issues on appeal and appellant did not offer any justification for the late filing. Consequently, unlike the situation in Gregory, the record includes no evidence as to whether the trial court properly advised appellant regarding post-verdict motions in accordance with Pa.R.Crim.P. 1123(c). Under these circumstances, we refuse to find that appellant has in fact waived the questions presented in this

[ 361 Pa. Super. Page 6]

    appeal. Rather than remand for completion of the record, however, we believe it expedient to address the merits of appellant's claims. Having done so, we find that we must affirm.

Appellant alleges first that the trial court erred when it partially denied his motion for severance of the many criminal charges against him and consolidated the instant five cases for trial. We disagree. The decision to consolidate separate indictments or informations is within the discretion of the trial judge and will be reversed only where there has been a manifest abuse of discretion or a showing of prejudice and clear injustice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 171, 425 A.2d 715, 718 (1981); Commonwealth v. Lasch, 464 Pa. 573, 584, 347 A.2d 690, 695 (1975); Commonwealth v. Slyman, 334 Pa. Super. 415, 437, 483 A.2d 519, 531 (1984). Consolidation of indictments or informations is encouraged whenever the needs of judicial economy will be advanced. Commonwealth v. Lasch, supra, 464 Pa. at 582, 347 A.2d at 694; Commonwealth v. Rose, 265 Pa. Super. 159, 175, 401 A.2d 1148, 1156 (1979). The policy of judicial expedience, however, must be weighed against the possibility of resultant prejudice to the defendant. Id., 265 Pa. Super. at 175, 401 A.2d at 1157.

At the time of appellant's trial Rule 219(b) of the Pennsylvania Rules of Criminal Procedure addressed the propriety of consolidation.*fn5 That rule provided that:

Two or more offenses, of any grade, other than murder, may be charged in the same indictment if they are of the

[ 361 Pa. Super. Page 7]

    same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or ...


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