Commonwealth v. Flaherty

• Decision Date: 20 July 1950
• Citation: 74 A.2d 506,167 Pa.Super. 19
• Parties: COMMONWEALTH v. FLAHERTY.
• Court: Pennsylvania Superior Court

74 A.2d 506

167 Pa.Super. 19

COMMONWEALTH v. FLAHERTY.

Superior Court of Pennsylvania

July 20, 1950

Argued April 10, 1950.

Appeal, No. 73, April T., 1950, from judgment and sentence of Courts of Oyer and Terminer and Quarter Sessions of Allegheny County, Nov. Sessions, 1949, No. 39, in case of Commonwealth of Pennsylvania v. Michael Flaherty et al.

Indictments charging defendant and others with armed robbery and receiving stolen goods. Before McNaugher, J.

Verdicts of guilty and judgments of sentence entered thereon. Defendant appealed.

Robert L. Prior, with him L. Pat McGrath and McGrath, McGrath & McGrath, for appellant.

Marjorie H. Matson, Assistant District Attorney, with her William S. Rahauser, District Attorney and Samuel Strauss, Assistant District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

RENO J.

Appellant and four others were convicted of armed robbery in Pittsburgh where a $ 2900 payroll was stolen. Only two errors are alleged, although the trial consumed six full days.

After the trial had proceeded for several hours and the testimony of three witnesses had been taken, appellant moved for a severance. Manifestly, the request came too late. In any event the action of a trial court upon a request for a separate trial of a crime of lesser degree than felonious homicide will be disturbed on appeal only upon showing an abuse of discretion. Act of March 31, 1860, P. L. 427, § 40, 19 P. S. § 785; Com. v. Mulroy, 154 Pa.Super. 410, 36 A.2d 337. In this case one indictment charged six defendants with one crime. One, Hess, pleaded guilty. The charge of the court adequately protected appellant against incriminating statements in the confession of the co-defendant who had pleaded guilty.

At the end of his cross-examination defense witness Pascoe was asked: "Q. Do you have an interest in this case? A. I have nothing, no. I don't care. It ain't going to help me out any. Mr. Strauss [the assistant district attorney]: "You are not kidding." (Emphasis added.) Appellant moved to withdraw a juror which the trial judge overruled. Immediately thereafter he said: "Members of the jury, you will entirely disregard what the District Attorney said. Mr. Strauss, that is highly improper, and do not make that type of remark again."

Pascoe had been convicted of an independent crime, unconnected with that charged against appellant, and was undergoing imprisonment. Appellant argues that the prosecutor's statement was a threat to "seek retribution against anyone who testified in behalf of the defendants." Yet immediately following Pascoe the defense called the witness Kappelusz whose testimony was substantially similar. The trial judge reports that he ...