No. 981 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at Nos. 1167/1173 April Term, 1978.
Thomas A. Bergstrom, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, P.j., and Spaeth, Hester, Wickersham, Brosky, Johnson, Popovich, DiSalle and Shertz, JJ.*fn* Spaeth, J., files a concurring and dissenting opinion in which Cercone, P.j., and Johnson, J., join. DiSalle and Shertz, JJ., did not participate in the consideration or decision of this case.
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This is an appeal*fn1 from judgments of sentence for robbery,*fn2 burglary,*fn3 aggravated assault,*fn4 and criminal conspiracy.*fn5 Appellant argues that his rights under Rule 1100 were violated, and that the trial judge erred in instructing the jury on accomplice testimony.*fn6
On January 5, 1977, appellant and four others*fn7 forcibly entered the residence of A. Charles Peruto at 1622 North 72nd Street in Philadelphia. Mrs. Josephine Peruto and her son, A. Charles Peruto, Jr., were inside. When one of the intruders grabbed Mrs. Peruto, and put a gun to her stomach and demanded her money, she screamed. (8/24/78 N.T. 19-22) Her son rushed upstairs from the basement to his
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mother's aid. One of the intruders fired a shot at him, and then all five intruders fled. (8/28/78 N.T. 52-56)
On February 2, 1977, a complaint was filed against appellant. Appellant was arrested on March 10, 1978, and his trial began on August 17, 1978. He was convicted by a jury and after post-verdict motions were denied, was sentenced to 17 to 40 years in prison. This appeal followed. We affirm the judgment of sentence.
Appellant's first contention, regarding his right under Pa.R.Cr.P. 1100 to be brought to trial no later than 180 days from the date on which the complaint was filed, was adequately addressed by the lower court in its opinion, and we need not comment on it any further.
Appellant's second contention of error concerns the adequacy of the trial judge's charge to the jury on accomplice testimony. At trial, Marie Rodriguez and Florence Gorman, two of the persons who broke into the Peruto residence with appellant, testified against appellant. Appellant's trial counsel submitted the following points for charge regarding their testimony:
1. It is a rule of law that evidence or testimony from an accomplice, in this case Mary [sic] Rodriquez and Florence Gorman, is evidence and testimony from a corrupt and tainted source; that is, the law recognizes the fact that because these witnesses, Mary Rodriguez and Florence Gorman, are themselves guilty of this crime, they, as accomplices in general, often testify under a strong motive of favor or pardon. As such, the courts have withheld from them that faith which is accorded to the testimony of a disinterested and innocent witness.
2. This rule of law recognizes that it bears against the credibility of an accomplice witness, Mary Rodriquez and Florence Gorman, that they have participated in this crime and are testifying for the prosecution.
3. Because these witnesses, Mary Rodriquez and Florence Gorman, have agreed to testify in exchange for a sentence of 10 years' probation, they are testifying under a strong
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motive of a self-serving and selfish nature, and their testimony should be carefully scrutinized as derived from a corrupt source and possibly affected by their own interest.
4. It is also a rule of law that an individual cannot be found guilty from the testimony of an accomplice, in this case Mary Rodriquez and Florence Gorman, unless that testimony is corroborated.
5. The testimony of one accomplice is not deemed to corroborate that of another. So that in this case, Mary Rodriquez' [sic] testimony cannot be used to corroborate Florence Gorman's testimony, and Florence Gorman's testimony cannot corroborate the testimony of Mary Rodriquez.
In response to these points for charge, the trial judge ruled as follows:
"THE COURT: No. 1, I will charge the jury that they are to scrutinize the evidence given by Marie Rodriquez and Florence Gorman with care because it comes from a corrupt source. So I will Give [sic] No. 1 in essence.
MR. SCHULGEN: Scrutinize carefully; right?
THE COURT: Right. So to the extent that I have not covered point No. 1 to the extent mentioned to me by point No. 1, you have an exception.
THE COURT: No. 2 is refused.
MR. SCHULGEN: I take exception to that.
THE COURT: You have an exception automatically.
No. 3 I will not charge as given. I will charge that their testimony shall be scrutinized as being derived from a corrupt source, but I will not charge the 'because' part, because I don't know. I don't argue with the jury on becauses. So No. 3 I will charge in that fashion.
To the extent I don't charge as given, you have an exception.
No. 4, that's false, so I will not give it.
MR. SCHULGEN: I take exception.
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THE COURT: Okay. I will charge to the contrary, as a matter of fact. You can take exception to that when I give it, because I will charge that he may be found guilty even though the testimony is not corroborated. The only requirement is that they be scrutinized.
THE COURT: When I give that, you can take your exception.
I will leave No. 5 open for the time being." (8/28/78 N.T. 131-33)
The judge then charged the jury as follows:
"It is important, too, that you properly evaluate the testimony of Florence Gorman and Marie Rodriquez, both of whom testified for the Commonwealth and admitted that they were part and parcel of this crime, and that they pleaded guilty to the crimes eminating [sic] from this incident. When you come to assess their testimony, in your evaluation it is important that you are mindful of this that they are accomplices. The law requires that you scrutinize their testimony with care. The reason for this is that the testimony of an accomplice is deemed to be eminating from a corrupt or criminal source. In evaluating their testimony, you will also consider whether their testimony is corroborated from other sources. If you find that the testimony that they gave is corroborated from other sources and you find that in the other evidence, then your concern about their testimony is not as great. If you find corroboration from the other evidence, then you will not apply the special rule that you are to give special scrutiny and special care to their testimony. The ordinary standards of credibility then apply." (N.T. 79-80, 8/29/78)
The judge then asked, in a sidebar conference, whether either counsel had any objections to the charge. This prompted the following exchange ...