dissenting.
I dissent. The majority states: “Accordingly, we consider the issues ineffective trial counsel failed to preserve properly. Of the issues now properly before this Court, we need address only one [the refusal of the trial court to instruct on ‘accomplice’ testimony].” In proceeding to address the merits of this issue, the majority ignores the often-pronounced mandates of this Court that an appellate court may not reach the merits of issues not preserved for appeal.
This was made clear by Justice Pomeroy, speaking for a majority of this Court in Commonwealth v. Hubbard, 472 Pa. 259, 279 n.8, 372 A.2d 687, 696 n.8 (1977) which held:
It is well-settled that, as a rule, issues not raised by way of post-trial motions will not be considered on appeal. (cites omitted) . . . Attacks on ineffectiveness of counsel may not be properly used as a vehicle to circumvent the consequences of failing to preserve issues for appeal. If a finding of ineffectiveness of post-trial counsel is made, the appropriate remedy is to remand the case to the trial court to allow appellant to file post-trial motions nunc pro tunc. It is not ... to reach the merits of the claim which has not been preserved. So to conclude would be to resurrect the discarded doctrine of ‘basic and fundamental error’ under the rubric of ineffective assistance of counsel. Compare Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). (emphasis added).
See also Commonwealth v. Holmes, 482 Pa. 97, 106, 393 A.2d 397, 401 (1978) and Commonwealth v. LaSane, 479 Pa. 629, 637 n.9, 389 A.2d 48, 52 n.9 (1978).
In the instant case, the asserted ineffectiveness occurred, if at all, at the post-trial hearing stage. Thus, as in Hub*35bard, the appropriate remedy for the ineffectiveness in this case is a remand to the trial court to allow appellant to file new post-trial motions nunc pro tunc.
Moreover, even though it is improper to address the accomplice charge issue on the merits, I feel constrained to voice my disagreement with the majority’s substantive analysis of that issue. The majority opinion relies on Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978) to conclude “the trial court erroneously refused trial counsel’s request for an accomplice charge.” I feel an accomplice charge would not have been proper, however, for the reasons stated by the dissent in Thomas.
An accomplice charge serves to caution the jury that certain testimonial evidence is of a corrupt source and subject to close scrutiny, Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974), and must be given with respect to a prosecution witness where the evidence presents a jury question as to whether that witness was an accomplice 1 in committing the crime with which the defendant stands charged. Commonwealth v. Mouzon, supra; Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969).
The theory of the majority is that Smith and McLaughlin aided and abetted the murder — robbery as participants in a ‘conspiracy to commit robberies and other illegal acts in order to financially support BBI (Black Brothers, Inc.).’ Opinion of the Court, ante at 38. This is based upon statements given to the police by McLaughlin following his own arrest to the effect that BBI was engaged in nefarious activities of one sort or another, that the murder *36weapon belonged to the organization, and that the proceeds of the robbery were donated to the organization’s treasury. Even if these statements be accepted as true they are insufficient to give rise to an inference that Smith and McLaughlin were in fact accomplices.
In order to establish that one has aided or abetted in the commission of a crime, it must be shown that one was an active partner in the planning or commission of the crime; the evidence must lead to more than mere speculation or conjecture. Commonwealth v. Fields, 460 Pa. 316, 333 A.2d 745 (1975); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972); Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75 (1937). There is in the case at bar a patent absence of any such evidence. Indeed, the majority makes a quantum leap by assuming that mere knowledge of a crime may give rise to an inference of complicity in that crime. Such a notion has long been rejected in this Commonwealth: ‘mere knowledge of the perpetration of a crime does not involve responsibility for its commission.’ Commonwealth v. Giacobbe, 341 Pa. 187, 195, 19 A.2d 71, 75 (1941). While the fact that the proceeds of the robbery in question were donated to the treasury and the murder weapon belonged to the organization could be enough to implicate other members of BBI, including Smith and McLaughlin, their involvement would be only as accessories after the fact.2 Commonwealth v. McFadden, supra.
*37Because the evidence was insufficient to convict either witness on an accomplice theory, it was not error for the trial court to refuse to give an accomplice charge. Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975); Commonwealth v. Mouzon, supra. Hence this dissent.
479 Pa. at 39-41, 387 A.2d at 823-24. (Pomeroy, J., dissenting, joined by O’Brien, J.).
Furthermore, even if I agreed that Thomas was decided correctly under the facts and circumstances of that case, it does not support the majority’s conclusion in this case. The majority notes that, in Thomas, the evidence introduced at that trial indicated Black Brothers Incorporated (BBI) was organized and operated for the purpose of conducting ongoing criminal activity and that BBI owned the gun used by appellant, which gun had been used in similar “jobs.” This evidence was not before the jury in the instant case. The jury at appellant’s trial knew only that appellant and McLaughlin were members of an organization known as Black Brothers Incorporated, that appellant announced his crime at a meeting of BBI, and that the witness McLaughlin had taken the gun from appellant; the jury did not know the illegal and conspiratorial nature of BBI’s activities nor that BBI had owned the gun used in the crime. Thus, the evidence at appellant’s trial could have at most supported an inference that McLaughlin was an accessory after the fact, as the evidence which persuaded the majority in Thomas to find an inference of accomplice involvement was simply not present in the instant case.1
For the foregoing reasons, I dissent and would remand to the trial court for proceedings consistent with this opinion, granting leave to appellant to file new post-verdict motions.
FLAHERTY, J., joins this dissenting opinion.Section 306 of the Crimes Code defines ‘accomplice’ as follows: ‘(c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(1) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it; or
(2) his conduct is expressly declared by law to establish his complicity.’
See the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 306(c).
Liability as an accessory after the fact is governed by Section 5105 of the Crimes Code. That section provides:
‘(a) Offense defined. — 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;
(2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;
(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; or
(5) volunteers false information to a law enforcement officer. The Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 5105.’ . . .
. In Thomas, the statements of McLaughlin and another BBI member were read into evidence — each also testified at trial. In appellant’s trial, only McLaughlin testified. And, while McLaughlin’s statement was entered as an exhibit, only an unrelated [to the issue of accomplice liability] portion was ever presented to the jury.