Appeal from the Judgments of Sentence imposed July 2, 1976, of the Court of Common Pleas, Criminal Division, Fayette County, at Nos. 556, 273, 273 1/2, 458, 458 1/3, 458 2/3, 296 of 1975.
Charles C. Gentile, Uniontown, for appellant at No. 920.
Donald J. McCue, Connellsville, for appellant at No. 921.
R. W. Ziegler, Jr., Pittsburgh, for appellant at No. 976.
Joseph E. Ferens, Jr., Uniontown, with him Conrad B. Capuzzi, District Attorney, Uniontown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Van der Voort, J., did not participate in the consideration or decision of this case.
[ 249 Pa. Super. Page 369]
The criminal convictions from which these appeals were taken are part of a series of cases generally known as the "Connellsville Police Cases." All three appellants were charged with conspiracy,*fn1 robbery,*fn2 and theft by unlawful taking,*fn3 stemming from an incident on April 28, 1972, during which the manager of the "Foodland" store in Connellsville was relieved of the store's daily receipts. Appellant Richey, a former policeman, was convicted on all three counts, as was Thomas Borris, a civilian. Raymond Martray, also a former policeman, was convicted of conspiracy only. These appeals followed. We affirm in part, and vacate and remand in part.
Several issues are raised by all three appellants. One of those is that the trial court erred in refusing to give a "corrupt source" charge with respect to the testimony of Lucinda Borris and Sue Wedge.*fn4 Such a charge was given with respect to Marvin Wedge's testimony which, if believed, clearly established Mr. Wedge as an accomplice. The trial court, after reviewing the undisputed testimony of Mrs. Borris and Mrs. Wedge, concluded that they were not accomplices in the crimes charged, and that a corrupt source charge with respect to their testimony was not warranted. "[T]he test of determining if one is an accomplice of the
[ 249 Pa. Super. Page 370]
accused on trial is whether or not he 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, allocatur refused, 165 Pa. Super. xxv (1949); see also Commonwealth v. Staudenmayer, 230 Pa. Super. 521, 326 A.2d 421 (1974). In addition, the rule is clear that when the facts concerning the participation of a witness in the crime with which the defendant is charged are undisputed, the trial court, not the jury, determines whether or not the witness is an accomplice. Commonwealth v. Brown, 116 Pa. Super. 1, 175 A. 748 (1934); Commonwealth v. Staudenmayer, supra.
The testimony of Lucinda Borris and Sue Wedge, appearing at pages 155-200 in the Notes of Testimony, reveals the role played by them to be as follows: Neither woman participated in the planning of the robbery, although both had overheard their husbands discussing the matter on at least two occasions. On the night of the robbery Sue Wedge and her daughter spent the evening at the Borris home. When their husbands returned home, each woman was given $2,300.00, that sum representing the husbands' share in the proceeds of the robbery. The next day, at their husbands' directions, the two women attempted to dispose of the weapon used in the course of the robbery, an attempt that ultimately proved unsuccessful. Cindy Borris testified that she was against the robbery from the very beginning, but was under the impression that as the wife of Tom Borris, she could not make statements against ...