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COMMONWEALTH PENNSYLVANIA v. JOSEPH BROWN (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH BROWN, APPELLANT



No. 596 October Term, 1976 Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, at No. 583 of 1975.

COUNSEL

Menno B. Rohrer, Lancaster, for appellant.

Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Hoffman, J., joins.

Author: Jacobs

[ 245 Pa. Super. Page 135]

This appeal challenges the use of the allegedly uncorroborated testimony of a robbery suspect to convict the appellant-defendant, Joseph Brown, of hindering apprehension or prosecution in violation of the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5105.*fn1

At appellant's non-jury trial, one Louella MacNeil testified that she and appellant had planned the robbery of a store and on February 4, 1975, she carried out the robbery armed with a knife she had taken from appellant's home. Fleeing the scene, she returned directly to appellant's house where she and appellant sat down to count the proceeds of the job. When the police arrived at the house, MacNeil fled upstairs and followed appellant's instructions to change her clothes while appellant took steps to hide the money. Two other witnesses for the Commonwealth also testified to some of these events and further indicated that the police were refused consent to search initially, but eventually appellant permitted their search. Appellant demurred to the evidence and was convicted of hindering apprehension or prosecution.

Appellant argues only that the evidence is not sufficient to support the conviction because there is no proof that a crime was committed independent of the testimony of Louella MacNeil. This testimony cannot support the

[ 245 Pa. Super. Page 136]

    corpus delicti, it is contended, because MacNeil was appellant's accomplice in the robbery and the uncorroborated testimony of an accomplice is not sufficient to establish the corpus delicti of the underlying offense. Appellant's argument is not convincing, however, because we have determined that the perpetrator of the robbery was not appellant's accomplice in the crime of hindering apprehension with which he was charged.

"An accomplice is one who 'could be indicted and punished for the crime with which the accused is charged.' Commonwealth v. Hopkins, 165 Pa. Super. 561, 564, 69 A.2d 428, 430 (1949)." Commonwealth v. Staudenmayer, 230 Pa. Super. 521, 525, 326 A.2d 421, 423-24 (1974). Under the new Crimes Code a person is expressly not an accomplice when "the offense is so defined that his conduct is inevitably incident to its commission" unless otherwise provided by the Crimes Code or the law defining the offense. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 306(f)(2).*fn2 In the present case the existence or participation of an individual suspected of criminal conduct is clearly a necessary component of the accused's offense of hindering the apprehension of another for crime. Because Section 5105 makes no provision for finding those inevitably involved in the accused's conduct culpable as accomplices, they fall within

[ 245 Pa. Super. Page 137]

    the exception stated in Section 306(f)(2) and cannot be ...


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