No. 56 March Term, 1976, Appeal from the Judgments of Sentence of the Court of Common Pleas of Fulton County at No. 72 of 1972.
Charles B. Swigart, Huntingdon, for appellants.
Gary D. Wilt, District Attorney, McConnellsburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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After a jury trial which began on October 3, 1973, appellants were convicted of burglary*fn1 and theft.*fn2 Written post-verdict motions were denied, and sentences were subsequently imposed. Appellant Gordon was sentenced to pay a fine of $250.00 and to serve three to twenty-three months imprisonment. Appellants Alloway and Mellott were each fined $250.00 and ordered to serve twenty-three months probation. The court also ordered restitution in the amount of $4,380.00.
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At trial, the Commonwealth proved that on July 3, 1972, appellants, accompanied by a fourth man, Duane A. Clark, broke into a house and garage owned by Rutherford B. Williams and stole a large quantity of automotive parts and tools belonging to Mr. Williams' son. Duane Clark, who had pled guilty to burglary in a previous proceeding, testified for the Commonwealth and provided the sole evidence implicating Gordon, Alloway, and Mellott.
Appellants first contend that the lower court erred in failing to sustain a demurrer to the evidence on the ground that the Commonwealth failed to adduce any evidence corroborating Clark's testimony. In a related claim, appellants argue that the court erred in refusing to instruct the jury that a conviction could not be based solely on the uncorroborated testimony of an accomplice.
In this Commonwealth, a criminal conviction can be sustained solely on the basis of the uncorroborated testimony of an accomplice. Commonwealth v. Faulcon, 450 Pa. 414, 301 A.2d 375 (1973); Commonwealth v. Didio, 212 Pa. Super. 51, 239 A.2d 883 (1968); Commonwealth v. Pressel, 199 Pa. Super. 16, 184 A.2d 358 (1962). The lower court, in the instant case, charged the jury that "the testimony of Duane Clark as an accomplice should be looked upon with disfavor because it comes from a corrupt and polluted source; . . . you should examine Duane Clark's testimony closely and accept it only with care and caution . . . ." (NT 245a). This charge was correct. Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969). Appellants' first contention is without merit.
Next, appellants claim that the court below erred when it denied appellants' motion to quash the indictments. During the investigatory phase of the case, Duane Clark was interrogated by state police at a district magistrate's office. Clark volunteered a statement in which he inculpated appellants and himself: Based upon this statement, arrest warrants were issued. Subsequently, a joint preliminary hearing was held before the same magistrate. Appellants' counsel moved that the magistrate disqualify himself because of
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his presence during the prior questioning. The magistrate refused and ultimately ordered that the appellants were to be held for court. Appellants were then released either on bail or their own recognizance. ...