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filed: September 9, 1983.


No. 1489 April Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, at No. 2383 of 1977.


William F. Cercone, Jr., Pittsburgh, for appellant.

Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.

Spaeth, Brosky, Rowley, McEwen, Montgomery, Hoffman and Van der Voort, JJ. Rowley and Van der Voort, JJ., file dissenting opinions.

Author: Hoffman

[ 318 Pa. Super. Page 550]

Appellant contends that the lower court erred in refusing to instruct the jury to scrutinize carefully and accept cautiously the testimony of two Commonwealth witnesses as purported accomplices. We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.*fn1

At approximately 7:30 p.m. on November 15, 1977, appellant telephoned Samuel Rossi and received permission to store something in the Rossi garage. Appellant and another man drove a brown van into the garage and told Rossi that the van contained bingo equipment. As the men were drinking coffee and watching television in the Rossi kitchen, appellant gave Rossi $200 and suggested that he "buy something for the kids." Later that evening, Rossi became

[ 318 Pa. Super. Page 551]

    suspicious when he heard on the 11 o'clock news that a local record store had been robbed and the stolen merchandise had been loaded into a van similar to the one in his garage. He immediately went to the garage to inspect the van's contents, but the van was locked and its cargo covered. He then drove to appellant's hotel, where appellant confirmed that the van contained the stolen merchandise but promised to remove it the following morning. Rossi then went home and went to bed. Appellant telephoned Rossi the next morning, and upon arriving at the Rossi home, unloaded the records from the van to the garage floor and drove the van away. Rossi observed appellant and the stolen records and then left for work. During the day, Rossi called home and learned from his wife that appellant had returned to box the records, but had not yet removed them. After work, Rossi again went to appellant's hotel and asked if he had removed the goods. Appellant assured Rossi that the contraband would be taken away, and drove him home. Several hours later, when appellant had still not arrived to reclaim the records, Rossi visited an attorney whom he had unsuccessfully attempted to reach during the day. Together, they consulted a criminal law specialist, who informed Rossi that he was involved and could be charged with a crime and advised him to report to the police. Rossi called home, learned that the records had been removed and proceeded to the police station to give a statement. Appellant was arrested and charged with receiving stolen property. At trial, Mr. and Mrs. Rossi linked appellant to the stolen records. The Commonwealth's evidence failed to establish that appellant either owned the van or perpetrated the robbery. Appellant presented an alibi defense. At the close of testimony, appellant requested the lower court to instruct the jury that the Rossi's testimony must be "scrutinized carefully and accepted with a high degree of caution" if the jury found them to be accomplices. The lower court denied the request and appellant was found guilty.

"It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter's trial,

[ 318 Pa. Super. Page 552]

    comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effect after being specifically requested to do so." Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969) (citation omitted). Accord, Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980). The justification for the instruction is that an accomplice witness will inculpate others out of a reasonable expectation of leniency. Commonwealth v. Upsher, 488 Pa. 27, 32, 410 A.2d 810, 812 (1980); Commonwealth v. Thomas, 479 Pa. 34, 37, 387 A.2d 820, 822 (1978); Commonwealth v. Russell, 477 Pa. 147, 153, 383 A.2d 866, 868 (1977). "An accomplice charge is necessitated not only when the evidence requires an inference that the witness was an accomplice, but also when it permits that inference." Commonwealth v. Upsher, supra 488 Pa. at 32, 410 A.2d at 812. "'[W]hen the facts with respect to the participation of a witness in the crime for which the defendant is on trial are clear and undisputed, it is for the court to determine whether or not he was an accomplice, but where the facts are in dispute, or different inferences might reasonably be drawn therefrom, the question whether or not a witness was an accomplice is for the jury.'" Commonwealth v. Sisak, supra 436 Pa. at 267, 259 A.2d at 431 (citations omitted).

In denying appellant's requested instruction, the lower court reasoned that the jury could not infer that the Rossis were accomplices. We disagree. "The general rule for determining whether a witness is an accomplice is 'whether or nor he could be indicted for the crime for which the accused is charged.'" Commonwealth v. Sisak, supra, 436 Pa. at 268, 259 A.2d at 431, quoting Commonwealth v. Hopkins, 165 Pa. Superior Ct. 561, 564, 69 A.2d 428, 430 (1949). "A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense he . . . (ii) aids or agrees or attempts to aid such other person in planning or committing it . . . ." 18 Pa.C.S.A. ยง 306(c).

[ 318 Pa. Super. Page 553]

    not contact the police for over 20 hours, all the while hiding the goods in his garage. He never offered to return the money to appellant after realizing it was a payment for secreting stolen property, and in fact, kept the money until counsel advised him to relinquish it to the police. The jury could certainly have inferred that Rossi intended to keep the $200 for maintaining the van and records overnight, provided appellant removed them early in the morning, and that it was not until appellant delayed removing the property that Rossi decided to confess his own role.*fn4 Thus, because the jury may reasonably have inferred that Rossi was an accomplice in the receipt and disposition of the stolen goods, the lower court erred in refusing to instruct the jury on the credibility of accomplice testimony. Accordingly, we must reverse the judgment of sentence and remand for a new trial.*fn5

So ordered.

ROWLEY, Judge, ...

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