Commonwealth v. Keppel

326 A.2d 593, 231 Pa. Super. 22, 1974 Pa. Super. LEXIS 1298

• Court: Superior Court of Pennsylvania
• Decided: September 23, 1974
• Docket: Appeal, 339
• Status: Published

Opinions

Opinion by

Price, J.,

This is an appeal from a judgment of sentence for burglary and larceny. The only issue raised on appeal is whether the trial judge committed reversible error in that part of his charge to the jury related to the testimony of an alleged accomplice.

The accomplice testified that the appellant and he spent time together on the night of the crime. During that time, they drove through Bethlehem, Pa., and cruised by ai house where appellant said they could find money. The men parked the car and started walking toward the house, but the accomplice returned to the car. He further testified that he did not see appellant again until appellant returned to the car, and did not know where appellant had gone in the interim. Both men were later charged with burglary of the home.

Appellant contends that reversible error was committed in the charge to the jury. This conclusion is based on one isolated sentence from the charge which was as follows: “It would not be possible in this case to exculpate Mr. Keppel unless you find that you cannot find Mr. Pettit believable in wha.t he said Mr. Keppel did.”

The entire charge of the lower court must be considered. Commonwealth v. Butler, 443 Pa. 545, 278 A. 2d 911 (1971); DeMichiei v. Holfelder, 410 Pa. 483, 189 A. 2d 882 (1963); Commonwealth v. Clanton, 395 Pa. 521, 151 A. 2d 88 (1959). The relevant portion of the charge includes the following:

“I have instructed you about his status as an accomplice, and the caution which [with] which you are to approach his testimony. But, he is still a witness in this case, he is not the defendant on trial in this case. You are not to concern yourselves with his testimony as to what part he played; that is, Mr. Pettit, if you believe it believable. If you find it unbelievable, you may consider it in light of whether you believe any other portion of his testimony for the purpose of this trial. But, what I am trying to say to you is even if you believe Mr. Pettit to be involved to a greater extent than he says he is involved, that is a completely collateral matter in this trial. That is not before you and you are not to go down that road and wonder about that, aside from whether or not you think it affects other parts of his testimony; of course, that is before you.

“I have explained there are tests of credibility which entitle you to find all of a witness’ testimony unbelievable if you find that he was not believable in other material facts. But, what I am saying to you is do this on credibility. Look at it and say, ‘Even if I do not believe Mr. Pettit when he attempts to say what part he played in it, do I find that by not believing that I do not find he was believable when he said what Mr. Keppel did?’ That is the question before you and that is what I am trying to define for you. I do not want to run the risk of somebody in the jury room deciding this case on what Mr. Pettit did.

‘(It would not be possible in this ease to exculpate Mr. Keppel unless you find that you cannot find Mr. Pettit believable in what he said Mr. Keppel did. That is what is at issue here, what he has said that he saw Mr. Keppel do and what he has said he heard Mr. Keppel say to him. Decide whether you find that believable in light with all the rules of credibility that I have given to you and, also, in light of what I have instructed you about Mr. Pettit’s status as an accomplice in this case. But, do not speculate on what is going to happen to Mr. Pettit, that is a separate case in and of itself.” [Emphasis added.]

Considering the charge in this light and keeping in mind the judge’s cautionary instructions, we conclude that the charge was proper and that appellant was not prejudiced. See Commonwealth v. Porter, 449 Pa. 153, 295 A. 2d 311 (1972); Commonwealth v. Heasley, 444 Pa. 454, 281 A. 2d 848 (1971).

The appellant concedes that the charge meets all the requirements of the “polluted source” instructions and “reasonable doubt” standards and, therefore, we find no error. Commonwealth v. Jones, 213 Pa. Superior Ct. 504, 247 A. 2d 624 (1968); Commonwealth v. Olitsky, 184 Pa. Superior Ct. 144, 133 A. 2d 238 (1957).

Further, it is conceded that no exception was taken to the charge of the lower court by the appellant at the time of trial. At the conclusion of the court’s charge, trial counsel were asked, “All right, gentlemen, are there any additions or corrections to the Court’s general charge?” The defense counsel answered, “No, your Honor.” Thus, we have a situation where an issue that was not raised at trial is sought to be raised on appeal.¹

In the recent case of Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A. 2d 114 (1974), the Supreme Court considered the issue of whether a court instruction alleged to be erroneous, and to which no specific exception was taken, amounted to a basic and fundamental error necessitating a new trial. Justice Roberts, in writing for the majority, noted that the concept of basic and fundamental error is an “unworkable appellate procedure” because the “theory has never developed into a principled test.” 457 Pa. at 257, 322 A. 2d at 116. In summary, Justice Roberts stated: “[T]hat basic and fundamental error has no place in our modern system of jurisprudence. This doctrine, which may in the past have been acceptable, has become an impediment to the efficient administration of our judicial system. Basic and fundamental error will therefore no longer be recognized as a ground for consideration on appeal of allegedly erroneous jury instructions ; a specific exception must be taken.” 457 Pa. at 260, 322 A. 2d at 117.

We conclude, therefore, that even if this charge were to be erroneous, such error is not basic and fundamental error, and would not in this case reverse on a point where no exception is taken.

Accordingly, we affirm the judgment of sentence.

Jacobs, J., concurs in the result.

1 In Commonwealth v. Watlington, 452 Pa. 524, 306 A. 2d 892 (1973), a waiver under Criminal Rule 1119(b) was held to apply to a cautionary instruction regarding the testimony of an accomplice. In that case, no cautionary instruction was given regarding the testimony of an accomplice and yet a waiver was found. In the instant appeal, appropriate cautioning instructions were given. See Pennsylvania Rules of Criminal Procedure 1119 which provides in pertinent part: “(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the Jury retires to deliberate. All such objections shall be made beyond the hearing of the Jury.”