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COMMONWEALTH PENNSYLVANIA v. DANIEL MARSH (11/16/89)

filed: November 16, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL MARSH, APPELLANT



Appeal from Judgment of Sentence Docketed March 24, 1987, in the Court of Common Pleas of Philadelphia County, Criminal No. 84-06-1378-1383.

COUNSEL

J. Michael Farrell, Philadelphia, for appellant.

Helen Kane, Asst. Dist. Atty., Philadelphia, for Com.

Olszewski, Del Sole and Johnson, JJ. Del Sole, J., concurs in the result.

Author: Olszewski

[ 388 Pa. Super. Page 613]

This is an appeal from a judgment of sentence imposing life imprisonment for felony murder with a concurrent term of two and one-half years for assault. Appellant, Daniel Marsh, raises seven issues for our review. Finding no merit in his contentions, we affirm the judgment of sentence.

On March 26, 1984, appellant and four cohorts, guns drawn, kicked in the door of an illegal lottery operating at 2820 West Lehigh Avenue in Philadelphia. Four of the men entered, while a fifth positioned himself outside as a lookout. The men inside demanded money and ordered everyone inside to get down. When gunfire erupted, Ms. Carrie Morton was shot by appellant and killed as she stood in front of the booth, attempting to place her bets. Gloria Smith, another customer, suffered a gunshot wound in the wrist.

Carl Cooper, who had been working in the establishment as a doorman and had recognized some of perpetrators from a previous robbery, ran out the door when the shooting began. Cooper watched the perpetrators flee and ran for help. Police obtained descriptions of the perpetrators from Cooper and others present at the scene and learned that the premises had been robbed at gunpoint on two occasions within a two-week period prior to the murder. Cooper assisted police in preparing a composite sketch of

[ 388 Pa. Super. Page 614]

    appellant and informed them that the perpetrators frequented Storey's Bar. On March 29, 1984, police transported Cooper to Storey's, where he identified appellant. On May 23, 1984, Cooper also identified appellant at a line-up.

Appellant was arrested on March 29, 1984, and charged with second-degree murder, conspiracy, possessing an instrument of crime, aggravated assault, and robbery. A motion to sever was denied on November 19, 1984. On December 4, 1984, the trial court granted appellant's motion to suppress an enlarged photo album but denied suppression of other forms of identification. On February 7, 1985, following a jury trial, appellant was found guilty as charged. Post-verdict motions were filed and denied; and on March 24, 1987, appellant was sentenced to life in prison for second-degree murder with a concurrent sentence of two and one-half to five years for aggravated assault.*fn1 Appellant filed a petition to modify his sentence nunc pro tunc, which was denied on April 23, 1987. This appeal followed.

Appellant first contends that the trial court erred in denying his severance motion. Specifically, appellant asserts that he was prejudiced by the testimony of co-defendant Wiggins, "which resulted in the introduction of the statement which [Wiggins] gave to the police wherein he named the co-defendants . . . ." Appellant's brief at 9. In this regard, our Rules of Criminal Procedure provide:

Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

Pa.R.Crim.P. 1127(A)(2). It is well settled that the decision whether to sever trials is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Hess, 378 Pa. Super. 221, 238,

[ 388 Pa. Super. Page 615548]

A.2d 582, 591 (1988), citing Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985). "A joint trial of co-defendants is 'advisable when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to [all] defendants.'" Commonwealth v. Thomas, 346 Pa. Super. 11, 19, 498 A.2d 1345, 1349 (1985), citing Morales, 508 Pa. at 61, 494 A.2d at 372. When a conspiracy is charged, defendants should be tried together unless some actual prejudice is shown. Commonwealth v. Orlowski, 332 Pa. Super. 600, 481 A.2d 952 (1984). A defendant must show real potential for prejudice and not mere speculation. Commonwealth v. Doa, 381 Pa. Super. 181, 205, 553 A.2d 416, 428 (1989), citing Commonwealth v. Patterson, 519 Pa. 190, 195, 546 A.2d 596, 599 (1988).

In the instant case, the record reflects that the charges against all defendants were identical and arose from the same incident. Indeed, many of the same witnesses would testify and the evidence was essentially the same for each of them. Therefore, "[s]everance would have resulted in unnecessary repetition." Commonwealth v. Council, 355 Pa. Super. 442, 447, 513 A.2d 1003, 1006 (1986).

Moreover, appellant's claim that he was prejudiced by co-defendant Wiggins' statement to police is refuted by the record, for Wiggins' statement was admitted in redacted form, eliminating the identification of Wiggins' two co-conspirators. This Court has held that it is improper to find a co-defendant prejudiced by the admission of another co-defendant's redacted statement if the statement does not tend to identify the co-defendant as a participant in the crime. Hess, 378 Pa. Super. at 238, 548 A.2d at 591, citing Commonwealth v. Rawls, 276 Pa. Super. 89, 419 A.2d 109 (1980); see also Council, 355 Pa. Super. at 449, 513 A.2d at 1007. "The interests of judicial economy commend redaction over severance in a ...


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