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COMMONWEALTH v. SISAK (11/28/69)

decided: November 28, 1969.

COMMONWEALTH
v.
SISAK, APPELLANT



Appeal from order of Superior Court, Oct. T., 1967, No. 329, affirming judgment of Court of Oyer and Terminer of Luzerne County, No. 133 of 1966, in case of Commonwealth v. Frank John Sisak.

COUNSEL

John E. O'Connor and Peter J. Webby, Public Defender, for appellant.

Jerry B. Chariton, Assistant District Attorney, Charles D. Lemmond, Jr., First Assistant District Attorney, and Blythe H. Evans, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs in the result. Mr. Justice Eagen dissents. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Pomeroy

[ 436 Pa. Page 264]

On February 9, 1966, Frank Sisak (appellant) was found guilty of burglary and larceny after trial by jury in the Court of Oyer and Terminer of Luzerne County. After his motion for a new trial was denied, he was sentenced to ten to twenty years imprisonment. The judgment of sentence was affirmed by the Superior Court per curiam, Judge Hoffman filing a dissenting opinion in which Judge Spaulding joined. Commonwealth v. Sisak, 211 Pa. Superior Ct. 255, 235 A.2d 630 (1967). We granted allocatur.

As we view this appeal, the question presented is whether the trial court committed reversible error in

[ 436 Pa. Page 265]

    failing to instruct the jury that it could determine whether one of the Commonwealth's witnesses was an accomplice of the appellant and, secondly, that if it found the witness to be an accomplice, it should view his testimony as tainted and give it careful scrutiny.

It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter's trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effect after being specifically requested to do so. Commonwealth v. Turner, 367 Pa. 403, 410, 80 A.2d 708 (1951).

At appellant's trial, the principal witness for the Commonwealth was one Arthur Dwyer. The facts of the case as testified to by Dwyer are as follows:

Appellant, whom Dwyer had never met before, came to Dwyer's home with a woman whom he introduced as his wife on the Monday preceding the Thursday on which the burglary was committed. Although he was in financial difficulties and his quarters were small, Dwyer permitted the appellant and his female companion to stay with him and his wife Monday night. The following day Dwyer located a place for them to stay with a friend of his, and helped them move to the friend's apartment. He did not see appellant again until 12:30 a.m. on Friday following the evening during which the burglary was committed. When appellant and his female companion arrived at Dwyer's home early Friday morning, appellant was carrying a suitcase, a radio, an iron and an electric clock. Immediately upon arriving, appellant stated to Dwyer, "I think we hit the jackpot." The witness and appellant then proceeded to examine the contents of the suitcase; it contained money, jewelry and securities which had been stolen in the burglary. Appellant gave Dwyer $300.00 of the stolen money and left with him all of the jewelry. From the door of his home, the

[ 436 Pa. Page 266]

    witness watched appellant dispose of the suitcase and the strongbox which had contained the securities, after which they congenially drank beer together.

In reciting these facts, the witness expressed no surprise at seeing appellant on the doorstep in the middle of the night laden with stolen property. Although he stated that he had originally refused to take the money, he subsequently accepted it and used it to pay off some of his obligations.

Appellant contends that the above facts demonstrate that Dwyer was in fact an accomplice; on the basis of these facts, appellant's counsel requested the trial court to instruct the jury that Dwyer was an accomplice and that Dwyer's testimony, coming from a corrupt source, should be given careful scrutiny.*fn1

[ 436 Pa. Page 267]

The trial court, after hearing this testimony, concluded that the facts were clear and that this witness was not an accomplice. Accordingly, it refused to give the requested charge.*fn2 In so doing, the court relied upon the general rule that "when the facts with respect to the participation of a witness in the crime for which the defendant is on trial are clear and undisputed, it is for the court to determine whether or not he was an accomplice, but where the facts are in dispute, or different inferences might reasonably be drawn therefrom, the question whether or not a witness was an accomplice is for the ...


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