stating that “[s]eparate trials of co-defendants should be granted only where the defenses of each are antagonistic to the point where such individual differences are irreconcilable and a joint trial would result in prejudice.”
How later courts described this case
- stating that “[s]eparate trials of co-defendants should be granted only where the defenses of each are antagonistic to the point where such individual differences are irreconcilable and a joint trial would result in prejudice.”
- recognizing that separate trials for co-defendants should be granted where the evidence is such that, while it will be introduced against one defendant, it will not be admissible against others
- holding that, even in separate trial, other crimes evidence would not have been admissible and identification testimony would have been admissible
- indicating that the term, "knowingly created a grave risk of death to others," need not be defined by the trial court, as the jury was able to apply a common-sense meaning
Written by the judges who cited it.
The opinion
NIX, Chief Justice,
dissenting.
I dissent. While I am in complete accord with the majority’s conclusion that the evidence produced by the Commonwealth meets the prescribed standard for sufficiency under Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), and would support the verdicts returned, I disagree with the majority’s position that the trial judge’s decision to keep the two defendants joined was not an abuse of discretion. I believe that a review of the record supports appellant’s contention that the denial of the requested severance was improper in view of the fact that his position and that of his co-defendant were clearly antagonistic.
Under our procedural rules, defendants may be tried together, even if they are charged in separate informations, if they are alleged to have participated in the same act constituting a criminal offense. Pa.R.Crim.P. 1127(A)(2). Our rules further provide that a court may order separate trials if it appears that any party may be prejudiced by being tried with a co-defendant. Pa.R.Crim.P. 1128. The decision of the trial court whether to sever a case against the co-defendant for purposes of trial is one within that court’s sound discretion. Commonwealth v. Tolassi, 489 Pa. 41 , 413 A.2d 1003 (1980); Commonwealth v. Kloiber, 378 Pa. 412 , 106 A.2d 820 (1954), cert. denied, 348 U.S. 875 , 75 S.Ct. 112 , 99 L.Ed. 688 (1954). Such a decision will be reversed only where there has been a manifest abuse of that discretion. Commonwealth v. Morales, 508 Pa. 51 , 494 A.2d 367 (1985); Commonwealth v. Morris, 493 Pa. 164 , 425 A.2d 715 (1981); Commonwealth v. Iacino, 490 Pa. 119 , 415 A.2d 61 (1980). The critical factor in this analysis is the prejudice which inures to the accused as a result of *346 being tried together with the co-defendant. Commonwealth v. Tolassi, supra; Commonwealth v. Peterson, 453 Pa. 187, 194 , 307 A.2d 264 (1973). Where a party can show that he will be prejudiced by a joint trial, severance is proper. Commonwealth v. Patterson, 519 Pa. 190 , 546 A.2d 596 (1988).
The antagonistic posture of the two co-defendants in this trial cannot be questioned. While the pre-trial antagonism may not have been sufficient to warrant a severance of the defendants, it is clear that once it became apparent that the defenses to be used surpassed mere “fingerpointing” and were on a “collision course” with each other, the trial judge should have ordered severance pursuant to Rule 1128 and heard the cases separately. See generally, United States v. Talavera, 668 F.2d 625 , cert. denied, 456 U.S. 978 , 102 S.Ct. 2245 , 72 L.Ed.2d 853 (1982); United States v. Felton, 592 F.Supp. 172 (1984), reversed in part on other grounds, 753 F.2d 276 (1985); Commonwealth v. Bennie, 352 Pa.Super. 558 , 508 A.2d 1211 (1986); Commonwealth v. Orlowski, 332 Pa.Super. 600 , 481 A.2d 952 (1984).
Greatly prejudicial to appellant’s case was his inability to develop his defense that the robbery-murder at Prince’s Lounge was accomplished by co-defendant Reese together with key witness Bernard Jackson. Jackson made a statement to the police listing a number of robberies that he asserted had been committed with Reese. Appellant sought to elicit testimony to establish that the Prince Lounge robbery was committed by Reese and Jackson. Pursuing this objective, appellant sought to have Jackson’s statement introduced to establish a plan, scheme, and design wherein Jackson and Reese would, together, commit crimes in which appellant was not involved. It was appellant’s position that the jury could conclude from this statement that the series of crimes committed by Jackson and Reese would indicate a common plan, scheme and design which would strongly suggest appellant was not a party to the crime in question. This, it was argued, would have been especially compelling since appellant Lambert had only known Reese and Jackson *347 for a few hours prior to the commission of the crime in question. The trial judge rejected this theory, as he had never heard of it being used by a defendant, and redacted the statement to exclude any mention of thirteen robberies not involved in the immediate trial.
Without redaction, had appellant and his co-defendant been tried separately, appellant could have fully cross-examined Jackson to attack his credibility and to attempt to establish the common plan, scheme and design with Reese. Although such theories are usually employed by the prosecution, there appears to be no reason for the trial court to prevent appellant from utilizing it in a separate trial. Commonwealth v. Schwartz, 445 Pa. 515 , 285 A.2d 154 (1971). 1
The second instance of prejudice which necessitated a severance was the admission into evidence of an eyewitness identification by a Ms. Ryan, which was permitted to be introduced as part of co-defendant Reeses’ defense. Ironically, when called as a witness on behalf of the Commonwealth, Ms. Ryan was unable to recall or identify the participants. However, once called to the stand as a witness for co-defendant Reese, she was able to identify appellant Lambert as “the shooter.” 2
In Commonwealth v. Morales, supra, in expressly upholding the trial court’s use of its discretion in denying the appellant’s motion to sever his trial from that of his co- *348 defendant, we stated: “[t]he evidence against appellant was virtually identical to the evidence against co-defendant, and the Commonwealth's case against one defendant exactly the same as against the other.” 508 Pa. 51, 61-62 , 494 A.2d 367 , 372 (1985) (emphasis added). As the record in this matter clearly indicates, the exact opposite situation to Morales exists here. The crucial identification of appellant as “the shooter” did not similarly identify the co-defendant. Additionally, it was the co-defendant, in his own defense, who procured the damaging identification of appellant. Therefore, the Commonwealth’s case against both appellant and co-defendant became drastically different once the co-defendant became a prosecutorial tool, and severance should have been allowed.
The Commonwealth’s case-in-chief against appellant was principally dependent upon the testimony of the tainted source, Jackson, to establish appellant’s participation in the robbery-murders. That alone provided some concern over severance. 3 See supra note 2. It was not until the evidence presented by co-defendant Reese, Ms. Ryan’s identification of appellant as one of the participants, that the requested need for severance arose. There can be little question that the identification supplied by Ms. Ryan was much more persuasive to the jury than the testimony supplied from a tainted source such as Mr. Jackson. When Reese was permitted to call Ms. Ryan as an identification witness, the Commonwealth and Reese became joint prosecutors of appellant. It is just such prejudice that makes severance necessary. As the court in Morales explained in further justifying its denial of the requested severance, “[i]n the instant case not only does appellant fail to indicate the manner in which his defense conflicted with co-defendants’, the record does not support an inference that he was hindered in any way from presenting whatever defense he wished to present.” 508 Pa. at 62 , 494 A.2d at 373 . In the *349 instant matter the inherent testimonial conflict and procedural impediment prejudicial to appellant’s defense were both obvious and objected to. Thus, pursuant to Morales , severance should not have been denied.
The conflict involved is undeniably clear as the procedure applied evolved into a situation where the co-defendant, rather than the prosecution, sought to establish appellant’s role as the shooter. Moreover, this illustrates the anomalous roles of the parties in this case. Once appellant suffered implication at the hand of his co-defendant, the judge’s subsequent ruling, that the statement offered by appellant evincing a common scheme between Jackson and Reese to commit crime was too prejudicial to the co-defendant to be admitted, denied appellant the use of exculpatory evidence which would have been available had severance been allowed.
Finally, the prejudice resulting from the trial court’s refusal to sever the defendants’ trials is most graphically demonstrated during the penalty phase. The evidence which provided the jury with a basis for returning the sentence of death for appellant and the lesser sentence of life imprisonment for the co-defendant resulted from the same evidence elicited by the co-defendant and not the Commonwealth, despite the Commonwealth’s own evidence strongly suggesting that the co-defendant was the principal participant.
It is clear from these two instances of obvious prejudice that severance was both necessary and appropriate in this case and that the trial judge’s decision to keep the two defendants joined was an abuse of discretion. For these reasons, I would reverse the decision of the lower court and grant the appellant’s request for a new trial.
ZAPPALA, J., joins this dissenting opinion.
. In that case, a co-conspirator attempted to offer testimony to establish the common plan, scheme and design of the other. That testimony was excluded for lack of probative value. However, the court seemed to recognize the availability of such a theory to the co-conspirator as well as the Commonwealth. Commonwealth v. Schwartz, 445 Pa. 515, 521-523 , 285 A.2d 154, 158 (1971).
. I have serious doubts that with regard to an event as outrageous as a double shooting, an immediate witness can at once claim no recollection whatsoever and then suddenly be able to competently identify the individual responsible for the shooting. Furthermore, it is interesting to note that sometime after the trial, Jackson had allegedly signed an affidavit stating that co-defendant Reese was “the shooter” and that the vacillating witness Ryan was a friend of the Reese family and would never testify against him. Accordingly, defense counsel requested an evidentiary hearing on after-discovered evidence. This motion, however, was denied by the trial judge as not timely filed.
. As indicated earlier, cross-examination of Jackson was limited because of the presence of co-defendant Reese. Therefore appellant could not fully cross-examine the prosecution’s "star” witness, a prejudicial obstacle when appellant was facing a possible sentence of death.