Commonwealth v. Ciotti

ROWLEY, Judge,

dissenting:

I join in Judge Van der Voort’s dissenting opinion: I agree that Mr. and Mrs. Rossi could not “be indicted and punished for the crime with which [appellant] is charged.” Commonwealth v. Hopkins, 165 Pa.Super. 561, 69 A.2d 428 (1948). See Subcommittee Note to Pa. Suggested Standard Criminal Jury Instructions, § 4.02. There is no evidence, that the Rossis “solicited” appellant to commit, or “aided” appellant in planning or committing, the crime of theft by *555receiving stolen goods. Nor is there any evidence that the Rossis intended to promote or facilitate the commission of the crime with which appellant was charged and convicted. See Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972). At most, the Rossis could be convicted of hindering the apprehension or prosecution of appellant. 18 Pa.C.S.A. § 5105. The comment of the Joint State Government Commission to § 5105 states that the section “covers the accessory after the fact ... an accessory after the fact [is] one who, knowing that someone has committed a felony, receives, relieves, comforts or assists the felon or in any manner aids him to escape arrest or punishment.” This is more descriptive of the conduct of the Rossis, viewed in the worst possible light, than is the definition of an “accomplice.” Commonwealth v. McFadden, supra. Since I agree that the Rossis are not “accomplices,” as a matter of law, I agree that the trial court did not err in refusing to give the “accomplice” charge.