Appeal from judgment of sentence of Court of Common Pleas, Criminal Trial Division, of Philadelphia, Nov. T., 1968, No. 1436, in case of Commonwealth of Pennsylvania v. Joseph Mouzon.
Jack J. Levine, for appellant.
James Garrett, Assistant District Attorney, with him James T. Ranney and David Richman, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
Appellant, Joseph Mouzon, was tried by a judge and jury and found guilty of murder in the first degree. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.
The Commonwealth's theory was that the murder was the product of local gang activity. At trial, two witnesses, Gregory Terrell and Michael Ray Doe, both of whom had originally been questioned by the police about their possible involvement in the murder, testified that they saw appellant beat the victim with a radio antenna. Appellant testified, on his own behalf, that he was not involved and that both Terrell and Doe were involved in the murder. Both Terrell and Doe admitted on cross-examination that they lied to the police when they were originally questioned and Terrell also admitted that although he did not implicate appellant in his original oral statement to the police, he changed his mind and implicated appellant after the police told him
that appellant had implicated him. Appellant first argues that the court committed error when it refused to give the following request for charge concerning the testimony of Terrell and Doe: "2. If you believe that either Gregory Terrell or Michael Raydoe [sic] are accomplices of the persons actually committing the crime, you should understand that while the law permits a conviction upon the uncorroborated testimony of an accomplice, it looks with disfavor upon this character of proof because its source is corrupt and the jury should ordinary [sic] not rely on such testimony unless corroboration is present and therefore before you accept testimony of this character, you must scrutinize it carefully and critically. Comm. v. Beck, 137 Superior Ct. 410 [sic]."
The court denied the request, apparently taking the position that it was clear that the two witnesses were not accomplices. We are not convinced, particularly since Terrell admitted he was present when "the gang members stated that they wanted to find white boys to fight."
As we said in Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969): "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 jury." At page 267.
The Commonwealth argues that the instant case is controlled by Commonwealth v. Scoggins, 451 Pa. 472, 304 A.2d 102 (1973). In Scoggins, the alleged error was the trial court's refusal to rule as a matter of law that a witness was an accomplice. This is not the situation in the present case. Appellant ...