Com. v. Bobko

• Decision Date: 30 March 1972
• Citation: 221 Pa.Super. 100,288 A.2d 925
• Parties: COMMONWEALTH of Pennsylvania v. Francis P. BOBKO, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 925

288 A.2d 925

221 Pa.Super. 100

COMMONWEALTH of Pennsylvania v. Francis P. BOBKO, Jr., Appellant.

Superior Court of Pennsylvania.

March 30, 1972.

Appeal No. 1568, October Term, 1971, from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Lehigh County at No. 156, January Term, 1969.

Malcolm J. Gross, Asst. Public Defender, (Submitted), Allentown, for appellant.

George J. Joseph, Dist. Atty. (Submitted) Allentown, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

PER CURIAM.

Judgment of sentence affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAULDING and CERCONE, JJ., join.

HOFFMAN, Judge (dissenting).

This is an appeal from appellant's conviction and sentence for armed robbery. Appellant raises a number of issues in this direct appeal, one of which I find to be meritorious.

Appellant's first contention is that the trial court erred in refusing to grant his motion for severance. The basis for this argument is that the evidence against a co-defendant, Edward Strohl, rested in large part upon the testimony of Strohl's girlfriend, who testified that Strohl had admitted to her his planning and participation in the crime. Upon appellant's motion, the lower court instructed the jury that such testimony should only be used as against Strohl and not against appellant or his other co-defendant. Appellant's present argument is that the jury could not keep an open mind with respect to his guilt once they had heard Strohl's admissions.

Appellant, however failed to object to these admissions on the basis of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which held that it was improper to allow the admissions of one defendant to be used against another defendant where the second defendant did not have an opportunity to confront the first defendant by cross-examination. At the time of the girlfriend's testimony, appellant could have raised a Bruton objection, because at that time it would not have been known whether Strohl would take the stand and thereby allow himself to be cross-examined. Strohl, however, did testify in his own behalf and consequently, appellant did have an opportunity to cross-examine him. Therefore, appellant cannot now complain of a Bruton violation. Accordingly, the denial by the trial court of appellant's motion for severance was not an abuse of discretion. Commonwealth v. Bruno, 203 Pa.Super. 541, 201 A.2d 434 (1964).

Appellant's second contention is that the court erred in denying his motion for a change of venue based upon an article that appeared seven months before trial in the Allentown Sunday Call-Chronicle. The article detailed thirty crimes in which appellant was allegedly involved. The only basis for a reversal on this issue would be in the pre-trial publicity was "so inflammatory and biased in factual presentation as to cause, or be evidence of, public prejudice or hysteria." Commonwealth v. Dessus, 214 Pa.Super. 347, 354, 257 A.2d 867 (1969). There is no indication in the record, however, that the jury was influenced by this pre-trial publicity.

The only other major issue raised by appellant concerns the trial court's denial of appellant's pre-trial motion "to challenge the panel of the jurors on the grounds that prejudicial matter to the defendants has been distributed to them ... in the form of the trial booklet wherein it sets forth that they are currently under indictment for additional charges--that is, the charges additional to the ones for which they are being tried at this time."

This motion was brought after the jury was sworn, but before the taking of testimony. The trial court summarily denied the motion without explanation. It was conceded that a trial booklet listing appellant's other outstanding and unrelated charges was distributed to the jury before it was empaneled. ¹ This practice was condemned by us in Commonwealth v. Trapp, 217 Pa.Super. 384, 272 A.2d 512 (1970), and we noted in footnote 2 of Trapp that distributions to juries of prejudicial trial lists "has [since] been discontinued" in Lehigh County.

As was stated in Trapp: "this information 'might well have prejudiced [appellant] by predisposing the jurors to believe the accused guilty, thus, effectively stripping him of the presumption of innocence."' 217 Pa.Super. at 387, 272 A.2d at 513. Then, as is true in the instant case, we noted in Trapp: "[t]he prejudice to the defendant was further aggravated by the fact that the booklets listed other burglaries charged against co-defendant. Jurors are very likely influenced by the maxims of guilt by association and 'birds of a feather flock together'. Almost inevitably, appellant would be tarred with the same brush as the co-defendant. The intrusion into the trial of other alleged crimes raised issues to which appellant could not realistically present a defense. Clearly, appellant's association with the other charges and with co-defendant tended to show that he was guilty of other crimes and effectively stripped him of the presumption of innocence." 217 Pa.Super. at 387, 272 A.2d at 514.

The trial court, in its opinion written following the post-trial motions, stated, however, that its denial of the ...