Commonwealth v. Sisak

259 A.2d 428, 436 Pa. 262, 1969 Pa. LEXIS 661

• Court: Supreme Court of Pennsylvania
• Decided: November 28, 1969
• Docket: Appeal, 354
• Status: Published

Opinions

Opinion by

Mr. Justice Pomeroy,

On February 9, 1966, Frank Sisak (appellant) was found guilty of burglary and larceny after trial by jury in the Court of Oyer and Terminer of Luzerne County. After his motion for a new trial was denied, he was sentenced to ten to twenty years imprisonment. The judgment of sentence was affirmed by the Superior Court per curiam, Judge Hoffman filing a dissenting opinion in which Judge Spaulding joined. Commonwealth v. Sisak, 211 Pa. Superior Ct. 255, 235 A. 2d 630 (1967). We granted allocatur.

As we view this appeal, the question presented is whether the trial court committed reversible error in failing to instruct the jury that it could determine whether one of the Commonwealth’s witnesses was an accomplice of the appellant and, secondly, that if it found the witness to be an accomplice, it should view his testimony as tainted and give it careful scrutiny.

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. Turner, 367 Pa. 403, 410, 80 A. 2d 708 (1951).

At appellant’s trial, the principal witness for the Commonwealth was one Arthur Dwyer. The facts of the case as testified to by Dwyer are as follows:

Appellant, whom Dwyer had never met before, came to Dwyer’s home with a woman whom he introduced as his wife on the Monday preceding the Thursday on which the burglary was committed. Although he was in financial difficulties and his quarters were small, Dwyer permitted the appellant and his female companion to stay with him and his wife Monday night. The following day Dwyer located a place for them to stay with a friend of his, and helped them move to the friend’s apartment. He did not see appellant again until 12:30 a.m. on Friday following the evening during which the burglary was committed. When appellant and his female companion arrived at Dwyer’s home early Friday morning, appellant was carrying a suitcase, a radio, an iron and an electric clock. Immediately upon arriving, appellant stated to Dwyer, “I think we hit the jackpot.” The witness and appellant then proceeded to examine the contents of the suitcase; it contained money, jewelry and securities which had been stolen in the burglary. Appellant gave Dwyer $300.00 of the stolen money and left with him all of the jewelry. From the door of his home, the witness watched appellant dispose of the suitcase and the strongbox which had contained the securities, after which they congenially drank beer together.

In reciting these facts, the witness expressed no surprise at seeing appellant on the doorstep in the middle of the night laden with stolen property. Although he stated that he had originally refused to take the money, he subsequently accepted it and used it to pay off some of his obligations.

Appellant contends that the above facts demonstrate that Dwyer was in fact an accomplice; on the basis of these facts, appellant’s counsel requested the trial court to instruct the jury that Dwyer was an accomplice and that Dwyer’s testimony, coming from a corrupt source, should be given careful scrutiny.¹

The trial court, after hearing this testimony, concluded that the facts were clear and that this witness was not an accomplice. Accordingly, it refused to give the requested charge.² In so doing, the court relied upon the general rule that “when 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. Brown, 116 Pa. Superior Ct. 1, 12, 175 Atl. 748 (1934); Commonwealth v. Kayfield, 40 Pa. D. & C. 2d 689 (Q.S. Luzerne Co., 1965).³

While we accept this rule, we cannot agree that the only reasonable inference which can be drawn from the above facts is that the witness was not an accomplice. As we view them, the facts support an inference that Dwyer participated with appellant in planning and arranging for the burglary in advance of its commission. If he did so participate, then, of course, Dwyer would have been an accessory before the fact. See Commonwealth v. Finkelstein, 191 Pa. Superior Ct. 328, 156 A. 2d 888 (1959) and Commonwealth v. Darnell, 179 Pa. Superior Ct. 461, 116 A. 2d 310 (1955).

The Penal Code specifically provides that, “Every . . . accessory before the fact, to any felony . . . may be indicted, tried, convicted, and if no punishment is provided, may be punished in all respects as if he were the principal felon.” Act of June 24, 1939, P. L. 872, §1105, 18 P.S. §5105. The general rule for determining whether a witness is an accomplice is “whether or not he could be indicted for the crime for which the accused is charged.” Commonwealth v. Hopkins, 165 Pa. Superior Ct. 561, 564, 69 A. 2d 428 (1949). Consequently, an accessory before the fact is by definition an accomplice.⁴ If in the present case the facts could support a reasonable inference that Dwyer was an accessory before the fact, they must necessarily support an inference that he was an accomplice within the meaning of the corrupt source rule in Commonwealth v. Turner, supra.

We do not hold that the facts require the inference that Dwyer was an accomplice, but only that such an inference was permissible. Therefore, under the rule set forth in Brown, supra, it was for the jury to determine whether Dwyer was an accomplice and to weigh his testimony in the light of that determination and appropriate instructions from the court. The possibility of such deliberations was foreclosed by the court’s failure to instruct the jury that they might find Dwyer an accomplice whose testimony was subject to the corrupt source rule.

The dissenting opinion concedes that in the present case the court’s failure so to charge was error. It concludes, however, that that error cannot now he considered because no exception was taken to the court’s charge by defense counsel and because, in the view of the minority, the error was not basic and fundamental.

The special-exception rule, as has so often been stated, is designed to prevent a party from sitting silently by, taking his chances on a favorable verdict, and then, in the event of an unfavorable verdict, complaining of matters which could have been corrected at trial had they been brought to the attention of the court in a timely fashion. See, e.g.: Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968); Segriff v. Johnston, 402 Pa. 109, 166 A. 2d 496 (1960). In the present case, however, appellant’s counsel did not remain silent and await the verdict. Rather, he requested five points for charge addressed to the accomplice rule. Each of these points was refused, and defendant was granted an exception.⁵ The formal submission of requested points for charge serves the same function as a request for additional or different instructions at the close of the court’s charge. Both procedures present the issue to the trial judge. Both enable the court to avoid error by charging on the issue presented. In the case at bar, it would serve no useful purpose to require the defendant to request additional instructions on the accomplice rule since the court had already rejected points for charge because of its belief that as a matter of law Dwyer was not an accomplice.

We hold, accordingly, that under these circumstances the failure of the trial court to instruct the jury on the accomplice rule was error. Because the jurors might well have concluded, under proper instructions, that Dwyer was an accomplice whose testimony was of little value, the error was prejudicial to appellant. In this view of the case we are not called upon to consider, as we would have been had appellant remained silent, whether or not the error of the court was “basic and fundamental.”

The order of the Superior Court and the judgment of the Court of Oyer and Terminer are reversed, and a new trial is granted.

Mr. Justice Roberts concurs in the result. Mr. Justice Eagbn dissents.

1 The requested points for charge were as follows:

“1. The main witness for the prosecution is the actual perpetrator of the crime and as such is an accomplice, conspirator and/or co-defendant along with Francis Sisak.

“2. See Oomm. vs. Darnall, 179 Pa. Superior 461, and as such, his uncorroborated testimony should be criticized and looked at from every angle. You are to test the question of its truth or falsity by every test which occurs to you. Freedom vs. U.S., 274 Fed. 603 and see also, Comm. vs. Howe, 84 Pa. Super. 295.

“3. The testimony comes from a tainted source and while you are considering it, remember from what kind of witness the testimony comes. Freedman vs. U.S., 274 Fed. 603. See also Comm. vs. Cunningham, 161 Pa. Super. 276.

“4. You should give far greater care and scrunity [sic] to the tainted testimony of the accomplice in light of testimony exculpating the defendant from witnesses of unsullied reputation. Arnold vs. U.S., 94 Fed. 2d 499.

“5. You, the Jury, are alone, the finders of fact and must determine whether on the basis of the aforementioned tests, the uncorroborated testimony of the alleged accomplice is credible and, in addition, even finding it credible, you are cautioned against putting too much reliance on the testimony of the accomplice. See Comm. vs. Howe, 84 Pa. Super. 295; see also Comm. vs. Elliott, 292 Pa. 16.

“You are again reminded that the testimony of the alleged accomplice is from a corrupt source. See Comm. vs. Olitzky, 184 Pa. Super. 144.”

2 The court’s view on this issue is set forth in its opinion on the motion for a new trial.

3 The Commonwealth advances, as a ground for affirmance, defense counsel’s minor deviation from the local court rule. The deviation occurred when defense counsel, unfamiliar with the local rules, submitted his points for charge after the closing arguments, rather than before. The trial court, however, was evidently willing to relax its rule in this instance, for it did not mention this deviation as a reason for refusing the points for, charge. While the rule is a salutary one, it is primarily for the benefit of the court itself, and relaxation of the rule was well within its discretion. The Commonwealth was not prejudiced thereby and we are not willing to rest an affirmance on that ground.

4 To the same effect, see Commonwealth v. Jones, 213 Pa. Superior Ct. 504, 508, 247 A. 2d 624 (1968). “[A]n accomplice is one who ‘knowingly and voluntarily cooperates with of aids another in the commission of a crime.’ ” See also Commonwealth v. Hurt, 163 Pa. Superior Ct. 232, 60 A. 2d 828 (1948).

5 The general rule that the trial court need not remold incorrect points for charge is not applicable in this case. Defendant’s requested points were in part erroneous, since they would have taken from the jury the question of whether Dwyer was an accomplice. That error was not adverted to by the trial court, however, and, as noted above, the court’s refusal to give the requested points was based on its erroneous conclusion that Dwyer could not be found an accomplice under the facts presented.

Moreover, we note that the rule as to the remolding of points for charge appears to have originated in the case of Commonwealth v. Girardot, 107 Pa. Superior Ct. 274, 163 Atl. 362 (1932). There, the point refused was said to be too broad in that it requested the jury to consider any Commonwealth witness whom they found to have been an accomplice as a “self-confessed criminal.” The Superior Court, in upholding the refusal of this requested point, stated (at 276-7) : “The charge of the court and the answers to .other points . . . were such as to leave no doubt in the minds of the jury as to the caution, careful scrutiny and critical examination which should be given by them in considering the testimony of accomplices, and the corrupt source from which it came. The court is only required to answer the points as submitted. It is not its duty to remold them; and when the law has been correctly stated in the charge and answers to the points presented, the defendant has no just cause for complaint.’’ (Emphasis supplied) The implication of this holding is that a party whose requested point, although erroneous, alerts the trial judge to an important issue in the case, does have just cause for complaint if the law to which that point pertains is not otherwise correctly stated in the charge.