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COMMONWEALTH PENNSYLVANIA v. FRANKLIN A. FODERO (03/23/79)

submitted: March 23, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANKLIN A. FODERO, SR., APPELLANT



No. 2082 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County, Criminal Division, No. 488 of 1977.

COUNSEL

Mark S. Refowich, Easton, for appellant.

William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ.

Author: Spaeth

[ 273 Pa. Super. Page 279]

Appellant was convicted of conspiracy to receive stolen property, receiving stolen property, and hindering apprehension. Appellant's post-verdict motions were denied and he was sentenced to eight to eighteen months in prison and fined $1,000. On this appeal appellant argues that the lower court erred in refusing a requested point for charge.*fn1

Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence in this case may be stated as follows. On July 21, 1975, cigarettes worth $48,000 were stolen from the Lehigh Wholesale Grocery. A few days later -- on July 23 or 24 -- Charles Sipple was at Harry Phillips's junkyard in Montgomery County when Phillips asked him if he would store some cigarettes. When Sipple

[ 273 Pa. Super. Page 280]

    agreed to do so, Phillips directed him to Michael Kleinovitch and appellant, who were standing in the junkyard. Kleinovitch told Sipple about the cigarettes from the Lehigh Wholesale Grocery, and said that they had been stored in an abandoned apartment in Hellertown. He and appellant then made arrangements with Sipple to deliver the cigarettes to Sipple's garage in Lehigh County. A few evenings later, Kleinovitch, appellant, and an unidentified third person brought a dump truck full of cigarettes to Sipple's garage. Two other deliveries were made on later evenings by Kleinovitch, appellant, and the third person. A few days after the delivery of the cigarettes had been completed, Sipple went to see Phillips at the junkyard in response to an urgent telephone call Phillips had made to him. Phillips told Sipple to move the cigarettes because the state police had obtained a search warrant for Sipple's garage. Later that same evening Sipple moved the cigarettes to the house of his friend, Richard Gross. Later Kleinovitch and Sipple went to Gross's house to get some of the cigarettes. A few days later the state police, acting pursuant to a warrant, searched Gross's house and seized the cigarettes.

Sipple testified for the Commonwealth and was the main witness against appellant and the others. At the close of all the testimony appellant requested the following point for charge:

5. The uncorroborated testimony of an accomplice is looked upon with disfavor. Because its source is corrupt, you should not ordinarily rely on it unless corroboration is present.

Judge WIEAND refused this point, stating that his charge had already fully covered the subject. Judge WIEAND's charge was as follows:

I am sure that you recognize that the testimony of Charles Sipple is of considerable importance in this case. His testimony, if it is believed, would demonstrate that he was an accomplice in the receiving of stolen property. Whether or not he ...


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