Commonwealth v. Ciotti

465 A.2d 690, 318 Pa. Super. 549

• Court: Supreme Court of Pennsylvania
• Decided: December 20, 1983
• Docket: 81-1-29
• Status: Published

Opinions

HOFFMAN, Judge:

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.¹

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 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, 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. § 306(c). Accord Commonwealth v. Thomas, supra 479 Pa. at 38, 387 A.2d at 822 (“have knowledge of, and participate in, the specific crime charged”). Appellant was charged with receiving stolen property, i.e., “intentionally receiving], retaining], or disposing] of movable property of another knowing that it has been stolen or believing that it had probably been stolen____” 18 Pa.C.S.A. § 3925(a). Less than five hours after accepting $200 from appellant for storing a van in his garage, Rossi was aware that the van had been used in the robbery and was filled with stolen merchandise. Rather than returning the money to appellant and immediately calling the police, Rossi contacted appellant and told him that the goods would have to be removed. Rossi then gave appellant the entire day to remove the contraband and, in fact, visited appellant after work, to ensure that the goods were gone. Upon learning that the goods still had not been removed, Rossi waited a few more hours before speaking with his attorneys. When they convinced Rossi that he was involved and could be charged even after appellant removed the goods, he decided to inform the police.² We cannot agree with the lower court that a jury could not infer that Rossi intentionally aided appellant in the retaining and disposing of goods known to be stolen.³ Rossi knew the goods were stolen and yet did not contact thé 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.⁴ 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.⁵

So ordered.

ROWLEY and VAN der VOORT, JJ., file dissenting opinions.

1 . This case was remanded for a determination of appellant’s remaining contentions. See Commonwealth v. Ciotti, 496 Pa. 232, 436 A.2d 983 (1981), rev’g, 279 Pa.Superior Ct. 75, 420 A.2d 751 (1980). We granted en banc review.

2 . The Commonwealth’s contention that the “accomplice charge” rationale is inapplicable because the Commonwealth had never discussed bringing charges against the Rossis is meritless. Rossi’s own testimony indicated that his attorneys convinced him that he was involved and could be prosecuted even after the records were removed. He further testified that it was with this "in mind” that he went to the police. (N.T. June 19, 1978 at 62-63, 110-11). The jury could infer from that testimony that Rossi went to the police on counsel’s advice "to inculpate others out of a reasonable expectation of leniency.” Commonwealth v. Upshur, supra. That Rossi was successful in avoiding prosecution in no way lessens the scrutiny his testimony requires.

3 . The lower court also found that appellant was not entitled to the requested instruction because he never implicated the Rossis and his alibi defense was inconsistent with his assertion that they were accomplices. We disagree. The Rossis’ own testimony was sufficient to raise the inference that they were accomplices. Appellant’s alibi defense that the Rossis were accomplices of an undisclosed third party does not lessen that inference. Accordingly, the lower court erred in refusing to grant the charge.

4 . Similarly, the jury could have inferred that Mrs. Rossi was an accomplice. Knowing that her husband had been paid |200 to hide stolen merchandise, she made no effort to contact police or return the stolen property. In fact, she stayed home with the records and even jammed the garage door so that it could not be opened.

5 . Because of our disposition of this matter, we need not address appellant’s final contention. There was no discussion on record concerning the lower court’s refusal to charge on these points; however, the defense did take specific exception to the court’s refusal to read these four points to the jury.