Appeal from judgment of sentence of Court of Common Pleas of Northampton County, Aug. T., 1972, No. 166, in case of Commonwealth of Pennsylvania v. Dennis J. Keppel.
Daniel E. Cohen, with him Seidel and Cohen, for appellant.
Nicholas M. Zanakos, Assistant District Attorney, and Charles H. Spaziani, District Attorney, submitted a brief for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Jacobs, J., concurs in the result. Dissenting Opinion by Hoffman, J. Watkins, P. J., and Spaeth, J., join in this dissenting opinion.
[ 231 Pa. Super. Page 23]
This is an appeal from a judgment of sentence for burglary and larceny. The only issue raised on appeal is whether the trial judge committed reversible error in that part of his charge to the jury related to the testimony of an alleged accomplice.
The accomplice testified that the appellant and he spent time together on the night of the crime. During that time, they drove through Bethlehem, Pa., and cruised by a house where appellant said they could find money. The men parked the car and started walking toward the house, but the accomplice returned to the car. He further testified that he did not see appellant again until appellant returned to the car, and did not know where appellant had gone in the interim. Both men were later charged with burglary of the home.
Appellant contends that reversible error was committed in the charge to the jury. This conclusion is based on one isolated sentence from the charge which was as follows: "It would not be possible in this case to exculpate Mr. Keppel unless you find that you cannot find Mr. Pettit believable in what he said Mr. Keppel did."
The entire charge of the lower court must be considered. Commonwealth v. Butler, 443 Pa. 545, 278 A.2d 911 (1971); DeMichiei v. Holfelder, 410 Pa. 483, 189 A.2d 882 (1963); Commonwealth v. Clanton, 395 Pa. 521, 151 A.2d 88 (1959). The relevant portion of the charge includes the following:
"I have instructed you about his status as an accomplice, and the caution which [with] which you are to approach his testimony. But, he is still a witness in this case, he is not the defendant on trial in this case.
[ 231 Pa. Super. Page 24]
You are not to concern yourselves with his testimony as to what part he played; that is, Mr. Pettit, if you believe it believable. If you find it unbelievable, you may consider it in light of whether you believe any other portion of his testimony for the purpose of this trial. But, what I am trying to say to you is even if you believe Mr. Pettit to be involved to a greater extent than he says he is involved, that is a completely collateral matter in this trial. That is not before you and you are not to go down that road and wonder about that, aside from whether or not you think it affects other parts of his testimony; of course, that is before you.
"I have explained there are tests of credibility which entitle you to find all of a witness' testimony unbelievable if you find that he was not believable in other material facts. But, what I am saying to you is do this on credibility. Look at it and say, 'Even if I do not believe Mr. Pettit when he attempts to say what part he played in it, do I find that by not believing that I do not find he was believable when he said what Mr. Keppel did?' That is the question before you and that is what I am ...