Com. v. Peterson

CourtUnited States State Supreme Court of Pennsylvania
Citation453 Pa. 187,307 A.2d 264
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Raymond PETERSON, alias Larry Brown, Appellant.
Decision Date02 July 1973

Page 264

307 A.2d 264
453 Pa. 187
COMMONWEALTH of Pennsylvania, Appellee,
Raymond PETERSON, alias Larry Brown, Appellant.
Supreme Court of Pennsylvania.
July 2, 1973.

Page 265

[453 Pa. 190] John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellant.

Robert W. Duggan, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.



EAGEN, Justice.

Appellant, Raymond Peterson, was indicted, together with several alleged accomplices, on counts of armed robbery, receiving stolen goods and violation of the Uniform Firearms Act. Pretrial motions to suppress identification testimony and for separate trials on the two indictments were denied and a jury trial was held in the Court of Common Pleas of Allegheny County. The trial judge sustained appellant's demurrers to all charges except the two counts of armed robbery. On these

Page 266

charges the jury returned verdicts of guilty. Motions for a new trial were denied, and Peterson was sentenced to two concurrent terms of from three and one-half to seven years imprisonment. An appeal to the Superior Court resulted in a per curiam affirmance, Commonwealth v. Peterson, 222 Pa.Super. 747, 294 A.2d 741 (1972). This Court granted allocatur. 1

The facts pertinent to the first indictment are as follows: Around 10 a.m. on October 24, 1970, two men entered the Foodland Market in Oakmont and asked for the manager ostensibly to purchase money orders. The men accompanied the manager to his office, whereupon one of them produced a pistol and demanded money. The manager complied and the robbers fled [453 Pa. 191] with $3500. A witness, Edward Kaminski, saw the men enter an orange colored car with a black vinyl top. He noticed the third digit of the license number was 'N' and the last two were either '35' or '53'. In addition to the manager, three other store employees witnessed the robbery and all identified Peterson at trial as one of the perpetrators.

Evidence relevant to the second indictment indicates that on the evening of October 24, 1970, four men in what was described as a rust colored car with a black top parked on Franklin Avenue in Wilkinsburg. Three alighted and entered the Little General Store. Having first asked to cash checks, one of the group then pulled out a sawed-off shotgun and demanded money. They fled with $14 from the two cash registers and $8 or $9 from an employee. A clerk tripped the alarm summoning police who arrived as the robbers were entering their get-away car. A high speed chase ensued which ended when the robbers' car crashed. Three men, including appellant, were apprehended at or near the scene of the accident. The car contained a sawed-off shotgun and twenty one dollar bills. A .30 calibre revolver was found on the ground beneath the auto. The car bore the license number '14N--135.' Mr. Kaminski subsequently identified the car as the one used in the Oakmont robbery. At trial, two employees of this store identified Peterson as one of the robbers.

Peterson's counsel made timely motions for severance prior to and again at trial and assigned the lower court's declination as error in post-trial motions and in this appeal. The contention is that prejudice arose from the fact that Peterson wished to testify concerning the Oakmont robbery, but also desired to remain silent on the charge stemming from the Wilkinsburg hold-up. Since he did not wish to expose himself to cross-examination on the latter crime, he did not testify at all. It is also asserted that consolidation permitted [453 Pa. 192] the jury to accumulate the evidence of the crimes and infer criminal disposition from which guilt was ultimately found.

At the outset we are constrained to note the absence in this jurisdiction of any rule of criminal procedure covering the joining and severing of two or more indictments. Pa.R.Crim.P. 219(b), 19 P.S. Appendix, is confined by its language to situations where 'two or more offenses' are charged 'in the same indictment.'

In order to facilitate our disposition of this appeal, we adopt the approach to the consolidation of indictments embodied in Fed.R.Crim.P. 13, which provides:

'The court may order two or more indictments, or informations or both To be tried together if the offenses, and the defendants if there is more than one, Could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution

Page 267

were under such single indictment or information.' (Emphasis supplied.) 2

Adoption of the federal approach returns the instant problem to the orbit and influence of the Pennsylvania Rules of Criminal Procedure, since we consider the consolidation of two indictments to be proper [453 Pa. 193] if the same offenses could have been properly joined in a single indictment (the situation governed by Rule 219(b)).

Pa.R.Crim.P. 219(b) specifically permits joinder of '(t)wo or more offenses . . . in the same indictment . . . if (the offenses) are of the same or similar character.' Here, as the Commonwealth's brief characterized the similarities in these two offenses, there were (1) two robberies (2) of two grocery stores (3) located five to seven miles from each other (4) within twelve hours, by several persons (5) using an orange colored automobile with a black top as a get-away car. Unquestionably, these similarities satisfy the standards for joinder. See Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). 3

However, the fact that these offenses were of similar character, closely related in time, place and manner of execution, and hence could have been properly joined in the first instance does not settle matters. Our next and principal concern must be whether appellant, as asserted, was prejudiced as a result of the joint trial.

As a general proposition it is well established that the grant or denial of severance is a matter of discretion with the trial judge, whose conclusion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). See also Sullins v. United States, 389 F.2d 985 (10th Cir. 1968); Dobbins v. State, 483 P.2d 255 (S.Ct.Wyo.1971).

[453 Pa. 194] The cases and treatises have taken special cognizance of three kinds of prejudice that may occur if separate offenses--and particularly those that are merely of 'similar character' and do not arise out of a single transaction--are joined. These are: (1) defendant may become embarrassed or confounded in his defense; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt, when, if considered separately, it would not so find. See Drew v. United States, supra, and 1 Wright, Federal Practice and Procedure § 222.

We turn to the allegation that appellant was embarrassed and confounded in his defense

Page 268

since he wished to testify on one charge but not on the other. It is important to note that although Peterson asserted in his motion for severance that he wished to testify concerning the Oakmont robbery but remain silent on the other charge, he never indicated the nature of the testimony he wished to give on the first indictment.

While we are strenuously urged to follow the holding of Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964), our own view is that appellant reads that case too broadly. There, in a joint indictment, Cross and another were charged in Count 1 with robbery of a church rectory on February 23, 1962, and in Count 2 with robbery of a tourist home on May 2, 1962. The theory of joinder was similar transactions and motions for severance were denied. The jury convicted him on Count 1 and brought in an acquittal on Count 2. At trial Cross did not specify the count upon which he wished to remain silent and the reasons therefor, but unlike Peterson, he ultimately testified on both counts. On appeal he asserted he had wished to remain silent about the church robbery but testify about incidents at the tourist home.

[453 Pa. 195] The Court of Appeals for the District of Columbia reversed and ordered a new trial, holding that defendant's motion for severance under Rule 14 should have been granted. The court recognized that to have testified on only one count would have accentuated a failure to testify on the other and that Cross's only alternative was to present weak testimony on Count 1. It was therefore concluded Cross had been coerced to testify by the joinder of similar transactions; the fact of joint trial, in effect, had rendered him unable to remain silent on Count 1.

Proceeding from a factual situation which is the converse of Cross, Peterson's argument is that in addition to the right to remain silent, one accused of crime also has the right to testify in his own behalf and therefore he was coerced into silence on the Oakmont robbery by the instant consolidation.

However, in Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (1968), the same circuit court took occasion to comment on, and in certain ways limit, the Cross decision.

Baker was convicted on seven counts of a nine count indictment charging offenses of income tax evasion and larceny. In his appeal he argued, inter alia, that severance should have been granted since he wished to testify as to some counts and remain silent on others.

In its opinion the court stressed the element of discretion with regard to the grant of severance, inhering in the trial judge, saying at pp. 976--977:

'Appellant cites Cross for the proposition that 'a timely and bona fide election by the accused to testify as to some counts and not as to others requires a Rule 14...

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