Commonwealth v. Almeida

POPOVICH, Judge:

This is an appeal1 from judgments of sentence for robbery,2 burglary,3 aggravated assault,4 and criminal conspiracy.5 Appellant argues that his rights under Rule 1100 were violated, and that the trial judge erred in instructing the jury on accomplice testimony.6

On January 5, 1977, appellant and four others7 forcibly entered the residence of A. Charles Peruto at 1622 North 72nd Street in Philadelphia. Mrs. Josephine Peruto and her son, A. Charles Peruto, Jr., were inside. When one of the intruders grabbed Mrs. Peruto, and put a gun to her stomach and demanded her money, she screamed. (8/24/78 N.T. 19-22) Her son rushed upstairs from the basement to his *200mother’s aid. One of the intruders fired a shot at him, and then all five intruders fled. (8/28/78 N.T. 52-56)

On February 2, 1977, a complaint was filed against appellant. Appellant was arrested on March 10, 1978, and his trial began on August 17, 1978. He was convicted by a jury and after post-verdict motions were denied, was sentenced to 17 to 40 years in prison. This appeal followed. We affirm the judgment of sentence.

Appellant’s first contention, regarding his right under Pa.R.Cr.P. 1100 to be brought to trial no later than 180 days from the date on which the complaint was filed, was adequately addressed by the lower court in its opinion, and we need not comment on it any further.

Appellant’s second contention of error concerns the adequacy of the trial judge’s charge to the jury on accomplice testimony. At trial, Marie Rodriguez and Florence Gorman, two of the persons who broke into the Peruto residence with appellant, testified against appellant. Appellant’s trial counsel submitted the following points for charge regarding their testimony:

1. It is a rule of law that evidence or testimony from an accomplice, in this case Mary [sic] Rodriquez and Florence Gorman, is evidence and testimony from a corrupt and tainted source; that is, the law recognizes the fact that because these witnesses, Mary Rodriguez and Florence Gorman, are themselves guilty of this crime, they, as accomplices in general, often testify under a strong motive of favor or pardon. As such, the courts have withheld from them that faith which is accorded to the testimony of a disinterested and innocent witness.
2. This rule of law recognizes that it bears against the credibility of an accomplice witness, Mary Rodriquez and Florence Gorman, that they have participated in this crime and are testifying for the prosecution.
3. Because these witnesses, Mary Rodriquez and Florence Gorman, have agreed to testify in exchange for a sentence of 10 years’ probation, they are testifying under a strong *201motive of a self-serving and selfish nature, and their testimony should be carefully scrutinized as derived from a corrupt source and possibly affected by their own interest.
4. It is also a rule of law that an individual cannot be found guilty from the testimony of an accomplice, in this case Mary Rodriquez and Florence Gorman, unless that testimony is corroborated.
5. The testimony of one accomplice is not deemed to corroborate that of another. So that in this case, Mary Rodriquez’ [sic] testimony cannot be used to corroborate Florence Gorman’s testimony, and Florence Gorman’s testimony cannot corroborate the testimony of Mary Rodriquez.

In response to these points for charge, the trial judge ruled as follows:

“THE COURT: - No. 1, I will charge the jury that they are to scrutinize the evidence given by Marie Rodriquez and Florence Gorman with care because it comes from a corrupt source. So I will Give [sic] No. 1 in essence.
MR. SCHULGEN: Scrutinize carefully; right?
THE COURT: Right. So to the extent that I have not covered point No. 1 to the extent mentioned to me by point No. 1, you have an exception.
MR. SCHULGEN: Thank you.
THE COURT: No. 2 is refused.
MR. SCHULGEN: I take exception to that.
THE COURT: You have an exception automatically.

No. 3 I will not charge as given. I will charge that their testimony shall be scrutinized as being derived from a corrupt source, but I will not charge the ‘because’ part, because I don’t know. I don’t argue with the jury on becauses. So No. 3 I will charge in that fashion.

■ To the extent I don’t charge as given, you have an exception.

No. 4, that’s false, so I will not give it.
MR. SCHULGEN: I take exception.
*202THE COURT: Okay. I will charge to the contrary, as a matter of fact. You can take exception to that when I give it, because I will charge that he may be found guilty even though the testimony is not corroborated. The only requirement is that they be scrutinized.
MR. SCHULGEN: Okay.
THE COURT: When I give that, you can take your exception.
I will leave No. 5 open for the time being.” (8/28/78 N.T. 131-33)
The judge then charged the jury as follows:
“It is important, too, that you properly evaluate the testimony of Florence Gorman and Marie Rodriquez, both of whom testified for the Commonwealth and admitted that they were part and parcel of this crime, and that they pleaded guilty to the crimes eminating [sic] from this incident. When you come to assess their testimony, in your evaluation it is important that you are mindful of this that they are accomplices. The law requires that you scrutinize their testimony with care. The reason for this is that the testimony of an accomplice is deemed to be eminating from a corrupt or criminal source. In evaluating their testimony, you will also consider whether their testimony is corroborated from other sources. If you find that the testimony that they gave is corroborated from other sources and you find that in the other evidence, then your concern about their testimony is not as great. If you find corroboration from the other evidence, then you will not apply the special rule that you are to give special scrutiny and special care to their testimony. The ordinary standards of credibility then apply.” (N.T. 79-80, 8/29/78)

The judge then asked, in a sidebar conference, whether either counsel had any objections to the charge. This prompted the following exchange between the judge and defense counsel:

“MR. SCHULGEN: Okay. I also object to the corroboration parts.
*203THE COURT: The what?
MR. SCHULGEN: Corroboration parts.
THE COURT: Well, in what manner?
MR. SCHULGEN: Just noting my objection.
THE COURT: You can’t just do that. You can put it down, but it won’t do you any good. You have to tell me in what manner it was wrong. Anything else?
MR. SCHULGEN: No.”
(End of Sidebar Conference)
(8/29/78 N.T. 109)

Appellant now argues that the trial judge committed reversible error in failing to charge the jury, as requested in trial counsel’s submitted point for charge No. 5, that as the testimony of one accomplice may not be used to corroborate the testimony of another accomplice, Marie Rodriquez’s testimony should not be used to corroborate Florence Gorman’s testimony, and Florence Gorman’s testimony should not be used to corroborate Marie Rodriquez’s testimony.

This court, in Commonwealth v. Wilds, 240 Pa.Super. 278, 362 A.2d 273 (1976), outlined the prerequisites for preserving for appellate review a contention of error in the trial court’s charge:

“Error is preserved for appellate review in two ways. First, if a -written point for charge is submitted and rejected and raised in post-verdict motions that will be sufficient under the rule. [Rule 1119(b), Pa.R.Crim.P.] Second, if the court instructs the jury and counsel makes specific objections and renews that objection in written post-verdict motions, that will be sufficient to preserve error under the rule.” Id., 240 Pa.Superior Ct. at 283 n. 9, 362 A.2d at 276 n. 9.

In his post-trial motions, appellant raised the issue of the trial court’s refusal to give requested point for charge No. 5. If the trial judge would have refused point No. 5 when he ruled on the other requested points, the issue of the erroneous charge would clearly have been preserved for our review. However, in a meeting in chambers, the day before *204the jury was charged, it will be recalled that the trial judge did not specifically deny point No. 5, but instead told counsel, “I will leave No. 5 open for the time being.” After the charge, when counsel was asked if he had any objections, counsel replied, “O.K. I also object to the corroboration parts,” and when the judge asked, “Well, in what manner?”, counsel replied, “Just noting my objection.” Although the trial judge never expressly ruled on submitted point No. 5, his omission of this point from the charge, even after counsel objected to the corroboration parts of the charge, manifested a rejection of the point sufficient to preserve the issue for appeal. See Commonwealth v. Sisak, 436 Pa. 262, 269-270, 259 A.2d 428, 433 (1969), where the Supreme Court stated that,

“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.”

Appellant cites Commonwealth v. Bennett, 220 Pa.Super. 378, 283 A.2d 724 (1971) and Commonwealth v. Pressel, 194 Pa.Super. 367, 168 A.2d 779 (1961), for the proposition that it is reversible error for a trial judge to deny a request to instruct the jury on the point of corroboration by an accomplice. It is not disputed that the requested point for charge No. 5 is a correct statement of the law. However, contrary to appellant’s assertion, the Bennett and Pressel cases do not stand for the proposition that a trial judge cannot refuse a requested charge on the point of corroboration by an accomplice. In Commonwealth v. Fodero, 273 Pa.Super. 278, 417 A.2d 648 (1979), a case involving the testimony of a single accomplice, this Court stated: “It is settled that ‘a trial judge is not required to accept a requested instruction verbatim, even if legally correct and timely filed. The court is free to select it’s own form of expression, so long as the issue is adequately, accurately and clearly presented to the jury.’ ” Id., 273 Pa.Superior Ct. at 282, 417 *205A.2d at 650. Quoting Commonwealth v. Gardner, 246 Pa.Super. 582, 590, 371 A.2d 986, 989 (1977); see Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Commonwealth v. McComb, 462 Pa. 504, 341 A.2d 496 (1975). In Bennett, the trial court had instructed the jury that it was to scrutinize carefully the testimony of an accomplice to determine whether he was corroborated by the testimony of any other witness, necessarily including one witness who was herself a possible accomplice. Our Bennett court found error in this charge because it permitted the jury to find corroboration of one accomplice by another.

Here, instead of giving Point No. 5, the trial judge told the jury:

“In evaluating their testimony [i.e., the testimony of Marie Rodriquez and Florence Gorman], you will also consider whether their testimony is corroborated by other sources. If you find that the testimony they gave is corroborated from other sources, then your concern about their testimony is not as great.” (N.T. 79-80, 8/29/78) (Emphasis added.)

Looking at this portion of the charge by itself, it appears the judge treated the testimony of one accomplice as though it corroborated the testimony of the other. But, when examined in the context of this case, where the two accomplices participated in the robbery from start to finish and told nearly identical stories to the court, treating the testimony of two accomplices as a unit was not error. The judge admonished the jury to view “their testimony” with great scrutiny, and to determine whether it was corroborated by “other evidence” in the record. The court’s instruction did not permit the jury to do what the Bennett opinion forbids: allow the testimony of one accomplice to corroborate that of another.

In Pressel, supra, the trial judge charged the jury correctly on the subject of scrutinizing accomplice’s testimony with care, but failed to state, although specifically requested to do so, that the testimony of two named accomplices was not to be used to corroborate each other’s stories. This court *206granted a new trial to Pressel because of the trial judge’s complete refusal to charge on the subject of corroboration.

In an exhaustive search of other jurisdictions, we find that only the Supreme Court of Iowa has been confronted with a situation similar to the instant case. In Iowa v. Horn, 282 N.W.2d 717 (Iowa 1979), where two accomplices testified to the same facts, the trial, judge instructed the jury that, “A defendant cannot be convicted upon the evidence of accomplices, unless their testimony is corroborated by other evidence .. . . ” (Emphasis added). Defendant objected to the court’s charge and excepted to the court’s failure to change the instructions to read that, “The testimony of one accomplice cannot corroborate the testimony of another accomplice.” Defendant also requested that the specific names of the accomplices be used in instructing the jury to the same effect. Although our law allows a defendant to be convicted on the uncorroborated testimony of an accomplice, the point here is the same. The Iowa Supreme Court found that the instruction given adequately incorporated the concept of defendant’s request.

The reasoning of the Iowa Supreme Court is equally applicable to the law of Pennsylvania. The Bennett and Pressel cases stand for the proposition that it is reversible error for a trial judge to allow a jury to infer from his instructions, by negative inference or otherwise, that the testimony of one accomplice may be used to corroborate that of another accomplice. These cases are clearly distinguishable from the present case, where the trial judge instructed the jury that in order for them to treat the accomplice testimony as ordinary evidence, they must find that “the testimony they gave is corroborated from other sources.” Consequently, neither trial counsel’s requested point for charge No. 5 nor the trial court’s charge would permit the jury to allow the testimony of one accomplice to corroborate that of the other. Therefore, this court affirms the judgment' of sentence imposed by the lower court.

*207SPAETH, J., files a concurring and dissenting opinion in which CERCONE, P.J., and JOHNSON, J., join. DiSALLE and SHERTZ, JJ., did not participate in the consideration or decision of this case.

. This case was originally argued before a panel of this court. After a request for reargument by the Commonwealth, the case was ordered reargued before the court en banc.

. 18 Pa.C.S. § 3701.

. 18 Pa.C.S. § 3502.

. 18 Pa.C.S. § 2702.

. 18 Pa.C.S. § 903.

. Appellant, in a pro se supplemental brief, raises as a third issue the effectiveness of trial counsel’s stewardship in regard to the preservation of appellant’s second argument for this appeal. Because we find that the issue of the trial judge’s charge on accomplice testimony has been properly preserved for the purposes of this appeal, appellant’s pro se argument is moot.

. The four others were Florence Gorman, Marie Rodriguez, Frank Crutchley, and Ray Thompson. Thompson was tried separately, and his conviction was affirmed in Commonwealth v. Raymond Thompson, 274 Pa.Super. 44, 417 A.2d 1243 (1979). Gorman and Rodriquez entered negotiated guilty pleas, and were placed on probation. The record does not indicate the disposition of the charges against Crutchley.