Commonwealth v. Malatesta

This matter came before me on April 9,1993, on the defendant’s motion to sever Counts I and n on (he indictment for separate trial from each other and from Counts HI and IV. Upon argument of counsel and consideration of case law provided, the motion is denied.

The defendant is charged with three separate burglaries of three residences in the same neighborhood on the same date (all within an hour of each other), and grand larceny arising out of one of the burglaries. Investigation and eventual arrest of the defendant was precipitated by the presence of his parked automobile in the neighborhood, in which car was found fruits of at least two of the three burglaries.

Rule 3A: 10(b) provides an accused may be tried at one time for more than one offense if justice does not require separate trials, and if the offenses meet the requirements of Rule 3A:6(b). (Rule 3A: 10(b) also allows for separate trials in the interest of justice and with the consent of both the accused and (he Commonwealth, but such joint consent is not present here.) Rule 3A:6(b) allows the joinder of two or more offenses if the offenses are based: (1) on the same act or transaction; (2) on two or more acts or transactions that are connected; or (3) on two or more acts or transactions that constitute a common scheme or plan. Under the reasoning of Ferrell v. Commonwealth, 11 Va. App. 380 (1990), and Cook v. Commonwealth, 7 Va. App. 225 (1988), I find that justice does not require separate trials, and that the offenses charged are two or more acts that are *541connected and that constitute parts of a common scheme or plan. Unlike Spence v. Commonwealth, 12 Va. App. 1040 (1991), where the interval between offenses was as little as eleven days and as long as more than two months, tibe instant offenses are alleged to have occurred not only on the same day but within a hour’s time in the same neighborhood and at the same type of location (a residential dwelling). Additionally, a lay witness who observed the car would be testifying in three separate trials but for this joinder. I find that the instant offenses are connected acts or constitute part of a common scheme or plan so as to satisfy the requirement of Rule 3A:6, and hence Rule 3A:10.