Appeal from judgment of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1967, No. 17, in case of Commonwealth of Pennsylvania v. James L. Griffin.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Stanley W. Greenfield, for appellant.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Wright, P. J., would affirm on the opinion of Judge Strauss.
[ 216 Pa. Super. Page 411]
Appellant in this case was indicted, along with Robert Taylor, on charges of armed robbery, assault
[ 216 Pa. Super. Page 412]
with intent to kill, aggravated assault and battery, and violation of the Uniform Firearms Act. He was tried alone*fn1 on these charges before Judge Strauss and a jury and was found guilty on all charges except assault with intent to kill, which had been previously dismissed by the judge. Motions for new trial were denied.
These charges arose out of the alleged assault and robbery of one David Fingeret. Mr. Fingeret testified that the appellant entered his place of business and struck him and that both appellant and Taylor subsequently beat and robbed him. At one point, according to Mr. Fingeret's testimony, he was able to escape and get help from the police who arrested appellant and Taylor at the scene of the alleged crime. The defense consisted of appellant's and Taylor's testimony to the effect that appellant had accompanied Taylor when Taylor went to Fingeret's place of business to collect a debt, that appellant remained in the car while Taylor went to see Fingeret, and that appellant only went into Fingeret's place of business to stop a fight between the two other men. Both appellant and Taylor testified that there was no intent to rob Fingeret. Taylor's testimony was in the form of a sworn deposition read to the jury due to the fact that he was unavailable for trial.
The issue before us is whether the court's charge regarding Taylor's deposition was improper and, as such, denied appellant a fair trial.*fn2 The court viewed Taylor's deposition as the testimony of an accomplice*fn3 and accordingly charged the jury as follows:
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"His testimony, if believed, may reveal to you as counsel for the defendant has argued that he was, in fact, an accomplice of the defendant at the time of the alleged crime. You are bound in considering the testimony of an accomplice to scrutinize it most carefully. And you must be well convinced that he told the truth before you would be warranted in accepting the testimony of such a witness, the reason being that the testimony from an accomplice under the law comes from a corrupt source, a man who by his own deposition indicates that he had been convicted of armed robbery on prior occasions and for breaking and entering.
"Nevertheless, after using all the caution in considering the testimony of an accomplice, if you are still of the opinion beyond a reasonable doubt that the accomplice told you the truth, then you are entirely warranted in accepting the testimony. In other words, it is a matter for you to determine whether or ...