Appeal from the Judgment of Sentence December 28, 1983 in the Court of Common Pleas of Union County, Criminal No. 113, 1982.
Michael T. Hudock, Public Defender, Mifflinburg, for appellant.
Graham C. Showalter, Lewisburg, for Com., appellee.
Wickersham, Cirillo and Johnson, JJ.
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This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Union County. Appellant, Robert Leroy Watts, was convicted of burglary and theft. Watts argued on appeal that the trial court erred in denying appellant's request for a "corrupt source" instruction with respect to the testimony of Larry Michaels. We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.
On June 25, 1982, appellant was arrested and charged with burglary, theft, and receiving stolen property in connection with an incident which occurred at Kuhn's Brothers Lumber Company in Lewisburg, Pennsylvania. After a trial by jury, Watts was found guilty of theft and burglary. Larry Michaels, who was also charged with receipt of stolen property, testified at trial for the Commonwealth. Michaels asserted that he observed certain items at appellant's residence the day after the robbery; that appellant admitted to Michaels that he had taken the items on a midnight adventure at Kuhn's Brothers; and that he, Michaels, received some of the items from appellant.
Prior to summation, Watts requested the trial court to instruct the jury on a corrupt source charge in regards to Michaels' testimony. After reviewing the testimony given by Michaels, the trial court concluded a corrupt source charge was not warranted because the witness was not an accomplice. We disagree.
"A person is an accomplice of another person in the commission of the 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. § 306(c). Appellant was charged with receiving stolen property, i.e., "intentionally receiv[ing], retain[ing], or dispos[ing] of movable property of another knowing that it has been stolen or
[ 348 Pa. Super. Page 227]
believing that it had probably been stolen . . ." 18 Pa.C.S.A. § 3925(a). It is well-established in Pennsylvania that "the test of determining if one is an accomplice of the 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. Cimorose, 330 Pa. Super. 1, 478 A.2d 1318 (1984); Commonwealth v. Richey, 249 Pa. Super. 365, 378 A.2d 338 (1977); Commonwealth v. Staudenmayer, 230 Pa. Super. 521, 326 A.2d 421 (1974); Commonwealth v. Griffin, 216 Pa. Super. 410, 268 A.2d 129 (1970).
It is clear, as a matter of law, that Michaels is an accomplice under the statute and this test. Michaels' testimony thoroughly established Michaels' participation with Watts in the commission of the offense of receiving stolen property. Michaels testified that he first saw the stolen objects at Watts' home the day after the robbery and he later discovered this property was stolen. Furthermore, Michaels admitted he purchased from Watts, tires taken during the burglary, aided Watts in dumping a tool box seized in the burglary into the Susquehanna River, assisted Watts in removing tools from Watts' residence to his car and retained some of the stolen tools for himself. Based on this testimony, it is apparent Michaels facilitated the retention and disposition of the stolen property by appellant. See Commonwealth v. Ciotti, 318 Pa. Super. 549, 465 A.2d 690 (1983). In addition, both Michaels and Watts were charged with receiving stolen property. The Commonwealth contends that Michaels did not receive any stolen property or even know of such property until the day after Watts committed the acts of which he is accused. Based on ...