Com. v. Morris

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before O'BRIEN; NIX; ROBERTS; ROBERTS
• Citation: 425 A.2d 715,493 Pa. 164
• Parties: COMMONWEALTH of Pennsylvania v. Bernard MORRIS, Appellant.
• Decision Date: 30 January 1981

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425 A.2d 715 493 Pa. 164 COMMONWEALTH of Pennsylvania
v.
Bernard MORRIS, Appellant. Supreme Court of Pennsylvania. Argued Oct. 17, 1980.
Decided Jan. 30, 1981.

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[493 Pa. 168] John W. Packel, Chief, Appeals Div., Karl Baker, Asst. Defender, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Andrew Cohn, Philadelphia, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

NIX, Justice.

Appellant, Bernard Morris, was convicted by a jury of two robberies and sentenced to consecutive prison terms of one of three years. Although the robberies stemmed from two separate incidents which occurred five days apart and there was a separate information for each robbery, appellant was tried for both offenses in one proceeding; his motion for separate trials on the two informations was denied. Post-verdict motions were also denied, and the judgment of sentence was affirmed by an evenly divided Superior Court, 258 Pa.Super. 24, 391 A.2d 653. We granted appellant's petition for allowance of appeal to address the propriety of the trial judge's refusal to grant the motion for severance.

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I.

On January 2, 1975, at approximately 6:30 p. m., Geraldine Seawright and her two small children arrived at the public housing apartment building where they lived. As they entered, a man whom they did not know addressed them in a friendly manner and followed them into the lobby where he spoke with a second man while the group waited for an [493 Pa. 169] elevator. After a wait of approximately ten minutes, Mrs. Seawright, her children and the two men walked to the adjoining apartment building to use an elevator there since all floors of the two buildings were connected with breezeways. The second man departed from the elevator on the third floor. Mrs. Seawright pushed the button for the tenth floor and the remaining man pushed the twelfth floor button. Somewhere around the eighth floor, the man pushed the emergency stop button and announced a holdup. Mrs. Seawright insisted that she had no money. The man rejected Mrs. Seawright's offer of her purse and struck her several times while searching inside her brassiere for money. At this point, Mrs. Seawright had been knocked to the floor and held there by the man's foot resting on the side of her face. The man threatened to kill the children and grabbed the face of Mrs. Seawright's daughter. During this time he kept one hand in his pocket as if concealing a weapon. In her struggle, Mrs. Seawright managed to de-activate the emergency stop button, and the elevator door opened at the tenth floor. The man again struck and searched Mrs. Seawright, found a change purse containing $95.00 inside her brassiere and ran from the elevator, through the breezeway, into the adjoining building. Mrs. Seawright went to the apartment of Craig Scott, a relative and a housing authority police officer. Housing and city police arrived, and she gave them a description of the robber.

Five days after the first robbery, on January 7, 1975, shortly before 7:00 p. m., Mrs. Carrie Rodgers and her four-year-old son were waiting in the same building for an elevator. Two other women were also waiting for the elevator, and two men were talking nearby. Mrs. Rodgers, her son, the two women, and one of the men boarded the elevator. The two women got off at lower floors. Mrs. Rodgers pushed the eleventh floor button but, for some reason unknown to her, the elevator stopped at the ninth floor. The man held the door open with his knee and announced a holdup. When she said she did not have any money, the man replied that he would have to search her. [493 Pa. 170] He found food stamps and a small amount of cash in her pockets but nothing in her brassiere. He then tried to take her leather coat. When Mrs. Rodgers told her young son to get his father, the man used the hat she was wearing to gag her. When he succeeded in taking off her coat, he ran from the elevator, through the breezeway, into the adjoining building. She went to the housing authority police to report the robbery and gave a description of the robber.

Officer Scott, on the basis of Mrs. Seawright's description of the man who robbed her, had decided that a man named "Boonie" might be the robber. He asked "Boonie", appellant herein, to go with him to Mrs. Seawright's house. En route, the two stopped at the market where Scott's wife had gone and where Mrs. Rodgers was also at that time. Mrs. Rodgers immediately identified appellant as the man who had robbed her. This identification occurred on January 10, 1975, three days after the Rodgers robbery. Appellant was arrested, and at a line-up Mrs. Seawright also identified appellant as the man who had robbed her earlier.

II.

Rule 219(b) of the Pennsylvania Rules of Criminal Procedure provides, in relevant part, that "two or more offenses ... may be charged in the same indictment if they are of the same or similar character...." Although the rule applies specifically to joinder of offenses, this Court has found it equally applicable to the consolidation for trial of separate indictments or

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informations. ¹ Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690, (1975); Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975). Subsection (d) of Pa.R.Crim.P. 219 provides that "the court, of its own motion, or on application of a party, may order separate trials of the counts...."

[493 Pa. 171] It is well established that the propriety of consolidating separate indictments for trial is a matter of discretion with the trial judge, and the exercise of this discretion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Moore, 463 Pa. 317, 320, 344 A.2d 850, 852 (1975); Commonwealth v. Patrick, 416 Pa. 437, 445, 206 A.2d 295, 298 (1965); Commonwealth ex rel. Bolish v. Banmiller, 396 Pa. 129, 132, 151 A.2d 480, 481 (1959); Commonwealth ex rel. Spencer v. Ashe, 364 Pa. 442, 446, 71 A.2d 799, 801, cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1390 (1950). The question to be addressed in this case is the proper standard for exercise of the trial court's discretion when the defendant has moved for relief from an asserted prejudicial consolidation.

The traditional justification for permissible joinder of offenses or consolidation of indictments appears to be the judicial economy which results from a single trial. The argument against joinder or consolidation is that where a defendant is tried at one trial for several offenses, several kinds of prejudice may occur: (1) The defendant may be confounded in presenting defenses, as where his defense to one charge is inconsistent with his defenses to the others; (2) the jury may use the evidence of one of the offenses to infer a criminal disposition and on the basis of that inference, convict the defendant of the other offenses; and (3) the jury may cumulate the evidence of the various offenses to find guilt when, if the evidence of each offense had been considered separately, it would not so find. Commonwealth v. Lasch, 464 Pa. 573, 585, 347 A.2d 690, 696 (1975); Commonwealth v. Peterson, 453 Pa. 187, 194, 307 A.2d 264, 267 (1975); Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964). Thus in arriving at a meaningful standard to guide the trial court in its exercise of discretion, and to permit appellate courts to determine whether the trial court abused this discretion, we must weigh the possibility of prejudice and injustice caused by the consolidation against the consideration of judicial economy.

[493 Pa. 172] In Commonwealth v. Peterson, supra, a plurality ² of this Court held that the determinative factors in a court's decision to sever indictments are whether "the evidence of each of (the)...