Commonwealth v. Kloiber

• Decision Date: 28 June 1954
• Citation: 106 A.2d 820,378 Pa. 412
• Parties: COMMONWEALTH v. KLOIBER et al. (two cases).
• Court: Pennsylvania Supreme Court

106 A.2d 820

378 Pa. 412

COMMONWEALTH v. KLOIBER et al. (two cases).

Supreme Court of Pennsylvania.

June 28, 1954

Prosecution for robbery. Defendants entered pleas of not guilty and cases were consolidated and tried jointly by jury. The Quarter Sessions Court, Lehigh County, at Nos. 67 and 68 April Sessions, 1952, James F. Henninger, P. J., entered judgment of conviction and defendants appealed. The Superior Court, Nos. 278 and 279, October Term, 1953, Robert E Woodside, J., 174 Pa.Super. 483, 101 A.2d 444, affirmed judgment and defendants appealed. The Supreme Court, Nos. 163 and 164, January Term, 1954, Bell, J., held that instruction concerning defendant who did not take witness stand, to the effect that defendant did not make denial that he was with one of confessed robbers in early morning when robbery was committed did not constitute an adverse comment by the court on the defendant's failure to testify.

Judgment affirmed.

Musmanno, J., dissented in part.

In prosecution for robbery, evidence was sufficient to sustain conviction.

Everett Kent, Bangor, and Theodore R. Gardner, Allentown, for appellants.

M. Jack Morgan, Dist. Atty., and George J. Joseph, First Asst. Dist. Atty., Allentown, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL Justice.

Two armed men entered the office of the R & F Dress Company at 1214 Gordon Street, Allentown, Pa., at approximately 12:35 o'clock p.m. on February 29, 1952, held up the company's bookkeeper and president, seized the cash payroll, and escaped in a black sedan car which was waiting for them and was being driven by a third person.

Senkovich and defendant, Stephen Kloiber, were alleged to have been the two armed robbers and William Kloiber the driver of the getaway car. Senkovich and Stephen Kloiber, after being arrested, gave signed confessions to the Pennsylvania state police admitting their participation in the robbery; and Senkovich also implicated William Kloiber as the driver of the getaway car. Senkovich pleaded guilty and was sentenced by the Court.

Stephen Kloiber and William Kloiber were separately indicted but were tried together. At the trial of this case the president and the bookkeeper who were held up, positively identified Stephen Kloiber as one of the two robbers, although they had failed to do so on two previous occasions. William Kloiber did not make any confession or take the witness stand. Senkovich at the trial of these defendants repudiated his written confession and testified he was with two other men named Kelly and John Crawford.

Stephen and William were convicted and from the judgment and sentence of the Court of Quarter Sessions they appealed to the Superior Court. Their conviction was sustained by the Superior Court, 174 Pa.Super. 483, 101 A.2d 444 and this Court allowed an allocatur.

Defendants allege numerous errors in their trial, several of which we shall discuss.

Defendants' first complaint is that the Court erred in refusing their request for separate trials. Stephen Kloiber and William Kloiber were each separately indicted on five counts. The first count against Stephen was one of armed robbery; the first count against William was one of robbery with accomplice; the other four counts, charging robbery, assault with intent to rob, larceny and receiving stolen goods, were identical. Both men were charged with participating in the same robbery and the same crimes at the same time, and not with participating in separate and distinct offenses. The Commonwealth called 14 witnesses in its case in chief and with several exceptions, the testimony of all witnesses was material and relevant as to both defendants.

The trial Judge because of his position and for other obvious reasons has been given a discretion to determine whether a number of bills of indictment should be consolidated and tried together, and his exercise of discretion in such matters will not be reversed by an appellate Court unless there has been a manifest abuse of discretion or a joint trial is so unfair as to be clearly unjust and prejudicial to one or more of the defendants. Especially is a joint trial permissible, if not advisable, when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to both defendants. Com. v. Mulroy, 154 Pa.Super. 410, 36 A.2d 337; Com. v. Valotta, 279 Pa. 84, 123 A. 681; Com. v. Quinn, 144 Pa.Super. 400, 405, 19 A.2d 526.

There was no manifest abuse of discretion or prejudicial error in trying these two defendants together on all of the aforesaid indictments.

Defendants also allege a number of errors in the charge and in the rulings of the Court. The first error alleged is that the Court erred in the following portions of its charge: ‘ * * * it is admitted in this case that at least two people took part who were in the dress goods plant, and then there is no contradiction that there was a third party who was in an automobile. * * * I think there is no doubt about William Kloiber having been at the Silver Star Hotel with Michael Senkovich that morning.’ That Court subsequently left to the jury the determination of all the facts and said it was their recollection and their opinion of the evidence which prevailed; and they had the right to decide all the fact and questions involved in the case.

There is no reversible error in these excepts from the charge, since there was ample evidence and reasonable ground for the Court's statements and they did not constitute, as defendants contend, statements of fact within the principle of Commonwealth v. Chambers, 367 Pa. 159, 79 A.2d 201.In that case the Court said in 367 Pa. at page 164, 79 A.2d at page 204:‘ It is the exclusive province of the jury, not the court, to decide all the facts, the inferences therefrom, the credibility of the witnesses and the weight and effect to be given to all of the testimony. While the main purpose of a judge is to state and explain the law and briefly review the evidence, it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render, provided (1) there is reasonable ground for any statement he may make; and (2) he clearly leaves to the jury the right to decide all the facts and every question involved in the case, regardless of any opinion of the court thereon. Commonwealth v. Cunningham, 232 Pa. 609, 611, 81 A. 711; Commonwealth v. Foster, 364 Pa. 288, 293, 72 A.2d 279; Commonwealth v. Simmons, 361 Pa. 391, 407, 65 A.2d 353; Commonwealth v. Watts, 358 Pa. 92, 97, 56 A.2d 81; Commonwealth v. Jones, 341 Pa. 541, 551, 19 A.2d 389; Commonwealth v. Nafus, 303 Pa. 418, 420-421, 154 A. 485.’

We come now to the following excerpt from the Court's charge: ‘ I think there is no contradiction of William Kloiber having been at the farm and having gone with Michael Senkovich at least the first time to the Silver Star. So that William Kloiber does not make a denial ^[1] that he was with Michael Senkovich on the early morning when this robbery occurred * * *’ . There was ample testimony to prove that William Kloiber was at the farm and at the Silver Star with Senkovich at the times in question; but the question remains whether this constituted an adverse comment by the Court on the defendant's failure to testify in violation of § 10 of the Act of 1887, 19 P.S. § 631.

William Kloiber pleaded ‘ not guilty’ and did not take the witness stand. After correctly telling the jury that it is their understanding and recollection of the testimony which governs and prevails, and that they are the persons to determine its weight and credibility, the Court said: ‘ There is one more thing to be said to you, and that is that any person accused of crime has a constitutional right not to testify. They have a right not to take the stand if they see fit to do so, and I want to impress on you that the fact that a person has chosen to exercise that constitutional right does not give you the power to draw any unfair or adverse inference concerning that person. To put it specifically, william Kloiber chose not to testify in this case. That was his constitutional privilege, and the fact that he exercised that right does not give you the right to draw any inference that could be adverse to him in this case.’ That was certainly a very fair and proper statement of the law.

If the Court's charge read as a whole is accurate and fair and contains no basic or prejudicial error, it will be sustained even though isolated excerpts taken therefrom are or might be objectionable. Commonwealth v. Donough, 377 Pa. 46, 53, 103 A.2d 694; Commonwealth v. Barnak, 357 Pa. 391, 406, 54 A.2d 865; Commonwealth v. Patskin, 372 Pa. 402, 422, 93 A.2d 704.The statement of the trial Judge that William Kloiber does not make a denial that he was with Senkovich on the early morning when this robbery occurred, (but at an earlier hour) does not under our prior decisions constitute reversible error. Commonwealth v. Thomas, 275 Pa. 137, 141, 118 A. 667; Commonwealth v. Holley, 358 Pa. 296, 300, 301, 56 A.2d 546; Commonwealth v. Schuster, 158 Pa.Super. 164, 168, 169, 44 A.2d 303; Commonwealth v. Nelson, 294 Pa. 544, 144 A. 542; Commonwealth v. Chickerella, 251 Pa. 160, 96 A. 129.Cf. however, Commonwealth v. Green, 233 Pa. 291, 82 A. 250; Commonwealth v. Foley, 24 Pa.Super. 414.

In Commonwealth v. Thomas, 275 Pa. at pages 140, 141 118 A. at page 668, supra, the Court approved the charge of the trial Judge in a first-degree murder case and said: ‘ * * * The defendant has not seen...