Commonwealth v. Brown

JACOBS, Judge:

This appeal challenges the use of the allegedly uncorroborated testimony of a robbery suspect to convict the appellant-defendant, Joseph Brown, of hindering apprehension or prosecution in violation of the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5105.1

At appellant’s non-jury trial, one Louella MacNeil testified that she and appellant had planned the robbery of a store and on February 4, 1975, she carried out the robbery armed with a knife she had taken from appellant’s home. Fleeing the scene, she returned directly to appellant’s house where she and appellant sat down to count the proceeds of the job. When the police arrived at the house, MacNeil fled upstairs and followed appellant’s instructions to change her clothes while appellant took steps to hide the money. Two other witnesses for the Commonwealth also testified to some of these events and further indicated that the police were refused consent to search initially, but eventually appellant permitted their search. Appellant demurred to the evidence and was convicted of hindering apprehension or prosecution.

Appellant argues only that the evidence is not sufficient to support the conviction because there is no proof that a crime was committed independent of the testimony of Louella MacNeil. This testimony cannot support the *136corpus delicti, it is contended, because MacNeil was appellant’s accomplice in the robbery and the uncorroborated testimony of an accomplice is not sufficient to establish the corpus delicti of the underlying offense. Appellant’s argument is not convincing, however, because we have determined that the perpetrator of the robbery was not appellant’s accomplice in the crime of hindering apprehension with which he was charged.

“An accomplice is one who ‘could be indicted and punished for the crime with which the accused is charged.’ Commonwealth v. Hopkins, 165 Pa.Super. 561, 564, 69 A.2d 428, 430 (1949).” Commonwealth v. Staudenmayer, 230 Pa.Super. 521, 525, 326 A.2d 421, 423-24 (1974). Under the new Crimes Code a person is expressly not an accomplice when “the offense is so defined that his conduct is inevitably incident to its commission” unless otherwise provided by the Crimes Code or the law defininthe offense. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 306(f)(2).2 In the present case the existence or participation of an individual suspected of criminal conduct is clearly a necessary component of the accused’s offense of hindering the apprehension of another for crime. Because Section 5105 makes no provision for finding those inevitably involved in the accused’s conduct culpable as accomplices, they fall within *137the exception stated in Section 306(f) (2) and cannot be considered accomplices.

We must conclude, therefore, that Louella MaeNeil was not an accomplice in the offense of hindering her own apprehension. Consequently, no basis has been advanced to us on which we might require corroboration of her testimony or a cautionary instruction. Commonwealth v. Whyatt, 235 Pa.Super. 211, 340 A.2d 871 (1975); Commonwealth v. Staudenmayer, supra.

Judgment of sentence affirmed.

SPAETH, J., files a concurring opinion in which HOFFMAN, J., joins.

. The offense is defined as follows: “A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he: (1) harbors or conceals the other; ... (3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence; (4) warns the other of impending discovery or apprehension, except that this clause does not apply to a warning given in connection with an effort to bring another into compliance with law . . . .” Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5105.

. For an analysis for the reason for this exception to the general rule of culpability of accomplices, see the Model Penal Code § 2.-04(5), Comment (Tent.Draft No. 1, 1953), which explains that rather than create a systematic legislative resolution to what must necessarily be many diverse fact situations, the legislature can rule in each instance whether participation in a crime involving by definition interaction with one or more others is to be criminally punished. The drafters of the Model Penal Code noted that there are “situations where conflicting policies and strategies, or both, are involved in determining whether the normal principles of accessorial accountability ought to apply. One factor that has weighed with some state courts is that affirming liability makes applicable the requirement that testimony be corroborated; the consequence may be to diminish rather than enhance the law’s effectiveness by making any convictions unduly difficult.” (Footnote omitted).