Commonwealth v. Russell

383 A.2d 866, 477 Pa. 147, 1978 Pa. LEXIS 870

• Court: Supreme Court of Pennsylvania
• Decided: March 23, 1978
• Docket: 162 and 190
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

On November 19, 1974, a jury found appellant William Russell guilty of murder of the first degree, aggravated robbery, burglary, and conspiracy in connection with the shooting death of William Lackman and John Seely and robbery of the residence of Dr. Frank Washick.¹ The trial court on October 21, 1975 denied appellant’s post-verdict motions and sentenced appellant to life imprisonment on the murder conviction and both concurrent and consecutive sentences on the other convictions. Appellant contends that the trial court improperly instructed the jury that in evaluating the credibility of a witness who testifies favorably for the accused, but who was previously convicted and sentenced for the crime in question, the jury should view the exculpatory testimony “with disfavor because it comes from a corrupt and polluted source,” should “accept [the testimony] only with caution and care,” and should consider whether the testimony is “supported by independent evidence.”² We agree, reverse judgments of sentence, and grant appellant a new trial.³

I

The Commonwealth asserts that appellant, though not present during the commission of the crime, organized and planned it. Joseph Grissell testified for the Commonwealth that he was supposed to act as a lookout for the perpetrators, but withdrew from the enterprise. Grissell testified that he was present when appellant organized the crime. Adolph Schwartz, one of the perpetrators, testified for appellant that he did not know appellant and that appellant was not involved. Appellant also testified.

The trial court instructed the jury that in evaluating the testimony of Grissell, the prosecution’s witness, it should be aware that an accomplice “may falsely blame others,” and that his testimony should be examined closely. The court also charged that Grissell’s testimony “standing alone is sufficient evidence on which to find the defendant guilty if, after following the foregoing principles [concerning accomplices], you are convinced beyond a reasonable doubt that he testified truthfully. . . . ”

The court then charged the jury concerning the testimony of Schwartz, appellant’s witness: “Now as to him, you also have to apply the same precautions [as for Grissell] in determining the credibility of his testimony. Briefly, to repeat what I have said for the other accomplice, in deciding whether or not to believe Schwartz’s testimony, you should be guided by the same principles.” The trial court continued:

“The testimony of Adolph Schwartz should be looked upon with disfavor because it comes from a corrupt and polluted source.

Two: You should examine his testimony closely and accept it only with caution and care, which is exactly the same thing I said for the other accomplice that testified.

Third: You should consider whether Schwartz’s testimony is supported in whole or in part by other evidence aside from his testimony, for if it is supported by independent evidence, then it is more dependable.

And, finally, you may believe Schwartz’s testimony even though it is not supported by any other evidence.”

II

The Commonwealth asserts that appellant failed to preserve the issue whether the trial court erred in instructing the jury concerning the testimony of Adolph Schwartz. We do not agree.

The jury returned its verdicts on November 19, 1974. Counsel for appellant on November 22, 1974, filed post-verdict motions challenging the sufficiency of the evidence. On November 25, appellant, though represented by trial counsel, filed timely pro se post-verdict motions challenging the sufficiency of the evidence, the trial court’s charge to the jury, the prosecuting attorney’s closing argument, and the trial court’s failure to instruct the jury further on the credibility of the witnesses. On February 27, 1975, before argument on post-verdict motions, counsel withdrew from the case with the approval of appellant, and new counsel entered an appearance. New counsel filed a brief addressing the charge. After argument, the court denied the motions, including the objection to the charge concerning Schwartz’s testimony.

Citing Commonwealth v. Bell, 442 Pa. 566, 276 A.2d 834 (1971), the Commonwealth argues that motions filed by a counseled defendant, such as the November 25 post-verdict motions of appellant, are not valid. In Bell, this Court pointed out the importance of defense counsel and stated “a hearing or trial court should not accept an accused’s pro se motion when he has counsel of record and there is no evidence he has discussed the matter with counsel, particularly where the motion works to the accused’s prejudice.” Id. 442 Pa. at 571, 276 A.2d at 836.

The Commonwealth misperceives Bell. Bell does not hold that such pro se motions by a counseled defendant are per se invalid. Rather, Bell directs trial courts to scrutinize such motions so that undue procedural confusion might be avoided. Where appellant has taken steps necessary to preserve his right to appellate review of an alleged error, and where these steps do not prejudice appellant, we cannot say that the trial court erred in treating appellant’s timely pro se motions as a proper supplement to those post-verdict motions already filed.⁴

Ill

Giving an “accomplice charge” when an accomplice testifies on behalf of the prosecution is a well-established practice. See Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969); see also Cool v. United States, 409 U.S. 100, 103, 93 S.Ct. 354, 357, 34 L.Ed.2d 335 (1972) (citing cases). Giving such a charge when the witness testifies for the defendant, however, is far less common. There are few reported appellate cases from other jurisdictions directly passing on this issue,⁵ which is apparently one of first impression for this Court.⁶

A legitimate basis exists for charging the jury to view an accomplice’s testimony with suspicion when the accomplice testifies for the Commonwealth. Such a witness, out of a reasonable expectation of leniency, has an interest in inculpating others. This basis is inapplicable, however, when the accomplice testifies on behalf of the defense. One implicated in a crime cannot reasonably expect such leniency by exonerating others, particularly where, as here, the witness has already been sentenced for committing the crime. Thus, it is unreasonable to infer, and improper for the court to charge, that because this defense witness stood convicted of the crime in question, his testimony must be viewed “with disfavor” and accepted only with “caution and care.”

We cannot say beyond a reasonable doubt that the error was harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The prosecution’s case rested heavily on the testimony of the alleged confederate Grissell. The defense consisted of testimony of the convicted perpetrator Schwartz and appellant, both of whom contradicted Grissell. Credibility of these witnesses was crucial. Therefore, appellant was prejudiced by a charge misdirecting the jury in assessing the testimony of Schwartz, an important defense witness. See Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977); Commonwealth v. Reese, 475 Pa. 120, 379 A.2d 1312 (1977).

Judgments of sentence reversed and new trial granted.

JONES, former C. J., did not participate in the decision of this case. POMEROY, J., filed a dissenting opinion.

1 . This Court reversed appellant’s previous conviction on these charges. Commonwealth v. Russell, 456 Pa. 559, 322 A.2d 127 (1974).

2 . We hear these appeals pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, arts. II and V, §§ 202(1) and 503(a), 17 P.S. §§ 211.202(1) and 211.503(a) (Supp.1977).

3 . Appellant asserts that the evidence was insufficient to prove guilt beyond a reasonable doubt. Viewing all the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, see Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976), we conclude that the evidence was sufficient.

Appellant also contends that the trial court erred by: (1) instructing the jury that before it could apply the “accomplice rule” to the testimony of a prosecution witness it must first find that the witness had not withdrawn from the conspiracy; and (2) failing to emphasize to the jury that it could return a verdict of murder of the second degree. Our disposition makes resolution of these issues unnecessary.

4 . The Commonwealth also asserts that appellant’s pro se motions referred generally to the charge of the tried court, but not to the “polluted source” charge. A fair reading of appellant’s pro se motion, however, see Commonwealth ex rel. Saunders v. Creamer, 464 Pa. 2, 345 A.2d 702 (1975), citing Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and new counsel’s post-verdict brief, filed before argument, put the court on notice of appellant’s allegation of error.

5 . The Supreme Court of New Jersey has held invalid an accomplice charge where the accomplice is a defense witness. State v. Gardner, 51 N.J. 444, 460-61, 242 A.2d 1, 10 (1968). Accord, Wheelis v. State, 340 So.2d 950, 952 (Fla.App.1976) (disapproving charge that accomplice testifying for defense must be evaluated with great caution; no Florida case approving such a charge); People v. Legear, 29 Ill.App.3d 884, 892, 331 N.E.2d 659, 665 (1975) (as a general rule, accomplice instruction should not be given where it derogates from defendant’s ability to use favorable testimony); People v. Howard, 130 Ill.App.2d 496, 498, 263 N.E.2d 633, 634 (1970) (general rule is to give instruction only where accomplice implicates defendant) (citing cases). But see United States v. Nolte, 440 F.2d 1124 (5th Cir.), cert. denied, 404 U.S. 862, 92 S.Ct. 49, 30 L.Ed.2d 106 (1971) (upholding instruction; accomplice credibility may be suspect).

6 . In Commonwealth v. Griffin, 216 Pa.Super. 410, 268 A.2d 129 (1970), the Superior Court held it was error to instruct a jury that it must believe an accomplice testifying for the defendant “beyond a reasonable doubt.” The Superior Court went on to say, however, that without the “beyond a reasonable doubt” language the charge would be proper because the witness had admitted to prior felony convictions. This language, however, was not necessary to resolve the case; in any event, we decline to follow it.