*1 & Chilcote and Johnston, Dickie, McCamey J. Lawson appellees. Schumann, Pittsburgh, George M. FLAHERTY, LARSEN, C.J., NIX, Before CAPPY, ZAPPALA, PAPADAKOS McDERMOTT, JJ.
ORDER PER CURIAM: affirmed.
Order LARSEN, J., in the participate did not NIX, C.J., and of this case. or decision consideration J., in the decision PAPADAKOS, participate did not this case.
v. BRICKER, Appellant. Robert Pennsylvania. Supreme Court 6, Argued March 1990. Sept. Decided *3 Pa., Elash, Pittsburgh, appellant. John Colville, Atty., Capristo, Deputy E. Dist. Claire C. Robert Conrad, Preuhs, Asst. Dist. Atty., Sandra Christopher Dist. Pa., for Pittsburgh, appellee. Attys.,
365 FLAHERTY, LARSEN, C.J., NIX, and Before CAPPY, ZAPPALA, McDERMOTT, PAPADAKOS JJ. THE OF COURT
OPINION CAPPY, Justice. his role in the to death for Bricker sentenced
Robert is re- The sentence Thomas Sacco. to murder conspiracy disposi- for a new trial.1 Our and the case remanded versed the trial the fact that of this case is necessitated tion errors, require either of which would court committed two appellant’s refused improperly The trial court reversal. Kell- to review Charles that the be instructed request jury corrupt polluted from a coming ington’s testimony source, allowing plea agreements and further erred sent out Rossi to be Charles Charles their jury during deliberations. charged by information originally Bricker was
Appellant trial 17, 1981, jury and the case proceeded filed on July first 11, returned a verdict of jury on November death. was sentenced to appellant murder and degree to this appellant’s appeal judgment direct Court Upon case was remanded for a sentence was reversed and the Bricker, v. Commonwealth trial. new Pa. (1985) decision).
A.2d 346 (plurality above, remand, again once convict- On as indicated murder and the death degree imposed ed of first appellant filed and denied and the sentence. Post trial motions were appeal.2 this Court on direct again case before *4 penalty imposed, In the death is each case which of independent is to conduct an review required this Court todays’ by dissenting opinion correctly the notes that decision 1. The majority murder of Thomas Sacco. A require that Robert Bricker be tried a third time for the will majority this Court believes that a receive a of yet necessary, is because Robert Bricker has third trial by Pennsylvania required Constitution and the mini- trial as the fair process. mum standards of due See, 722(4), 9711(h)(1); 702(b). Pa.R.A.P. 42 Pa.C.S. §§ 366 evidence, where the defendant of the even sufficiency Com ground. on that challenged
has conviction Zettlemoyer, monwealth v. 16, (1982), 454 500 Pa. A.2d 937 denied, cert. 970, 2444, 1327, 77 L.Ed.2d 461 U.S. 103 S.Ct. denied, reh’g 31, 77 1452 1236, 463 U.S. 104 S.Ct. L.Ed.2d evidence, (1983). of the we reviewing sufficiency evidence, must and all reasonable determine whether therefrom, most light inferences deducible viewed winner, as verdict are favorable to the Commonwealth offense(s) of all elements sufficient to establish Rhodes, reasonable doubt. Commonwealth v. beyond (1986). 1217 510 Pa. 510 A.2d of murder of the if guilty degree is first Appellant of killed accomplice intentionally he was an another who Thomas Sacco. part:
18 provides, pertinent Pa.C.S. § (a) A person rule. is of an offense if it is guilty General by his own conduct or the conduct of by committed accountable, legally another for which he is or person both.
(b) Conduct of another. A accountable person legally person conduct of another when:
(3) he accomplice is an other in the person such commission of the offense.
(c) A is an Accomplice person defined.
another in the of an if: person commission offense
(1) intent of or promoting facilitating with the offense, commission of he: (i) it; person solicits such other to commit or (ii) agrees person or to aid such other attempts aids it____ in planning or committing 2502(a) provides that “a criminal homicide Pa.C.S. § degree murder of the first when it is committed constitutes an killing.” intentional principal Commonwealth’s evidence this case was one who Kellington, pur- Charles testified agreement suant as a in the plea participant *5 Kellington’s testimony program. protection federal witness the circum- regarding very detailed lengthy and quite was Sacco, the victim Thomas led to the death stances which the culmi- murder was Kellington, According herein. among “Eggy” William orchestrated conspiracy nation of a Prosdocimo, appellant. Miles Gabler the actual surrounding for the events stage
To set the infor- background certain gave killing, Kellington and himself of Sacco relationship mation about the murder. a motive for to establish order conspirators a distribu- relationship as lengthy his Kellington told of own as a living made his Prosdocimo, a man who for Eggy tor and distribution dealer, in the illicit sale specializing drug Sacco, Kellington whom of dilaudid. Pittsburgh throughout Prosdocimo as a life, for all his also worked had known he had only testified that drugs. distributor Kell- the murder. months before a few appellant met also involved distribut- ington appellant believed for Prosdocimo. ing drugs began to and Prosdocimo Sacco relationship
The between in debt to Sacco was money. the issue deteriorate over $4,000 was to have drugs Sacco in excess of Prosdocimo soured, relationship As their business consignment. sold on escalated. A the two men animosity between personal and threats to each name-calling involving series of events of these During one erupted. violence personal other of murder, Prosdocimo offered shortly incidents before final act $1,500 The up” to “mess Sacco. him, to eliminate Sacco, Prosdocimo’s desire precipitating Prosdocimo’s information about give Sacco’s threat narcotics Pittsburgh police particular to a drug network detective. murder, introduced Kell- appellant
Two weeks before Miles Gabler. conspiracy, of the ington to the last member Gabler, to house request, Kellington agreed appellant’s At Ac- apartment. escaped prison, had from just who suggested who appellant it was cording Kellington, to murder Sacco. using the idea of Gabler Prosdocimo took meeting place the murder days Several before Gabler, Prosdocimo, Present were Kellington’s apartment. meeting of the was to appellant. object *6 killing Sacco. discuss the method and location best were devised. Alternate scenarios appellant provid- had prior meeting, At some time to this Kellington kept a .357 which at Kellington magnum ed with Sacco, kill During the discussion of how to apartment. kept weapon told he the and Kellington appellant where in the The murder many presently gun. how bullets were recovered, weapon was never bullets that killed but Kellington Sacco were the same caliber as those that stated gun he in the when it was handed to knew were Gabler. An reached plan attempt initial to “hit” Sacco that as he at the Red evening, night believed would be Door in Pittsburgh. appellant After and Prosdocimo left the club Kellington Gabler ddubts to about apartment, expressed having Kellington to kill Sacco. advised him that if actually Sacco, just he did not want to kill he could shoot him in the kill leg pretend Kellington that he had tried to him. evening arrived at Red Door later that and learned that first attempt this had failed.
A few later Thomas Sacco was shot while days fatally standing on the sidewalk in front of an after hours club all the frequented by players particular crime net- club, Butchie’s, Kellington work. arrived at the known as shooting. As he the entrance he prior approached appellant sitting saw a car in 'front of the club. Appel- him if evening. lant asked he would be around that When said, Kellington responded affirmatively, appellant “I might you.” need club,
Upon entering Kellington noticed that Sacco was present. According Kellington, appellant had lured Sac- to this by offering co location to sell him While drugs. talking on the he telephone, observed Sacco thereafter, other men go two outside. Immediately heard sounded Kelling- what like a firecracker. emerged ton from the lying club saw Sacco on the body and ascertained that Sacco He over ground. bent into alive, back the club as but went quickly was still police approached. ambulance, in an from the scene was taken
As Sacco from appellant call at the club phone received a Learning that Sacco was asked if Sacco was dead. who in- further Kellington to obtain dead, instructed appellant club him in Hazelewood at another formation and then meet thereafter, Kellington Shortly Chasmar. known to the Chas- proceeded Sacco was dead and discovered that Ga- met Prosdocimo and lounge appellant, mar he where bler. gun room four men alone in back met on table them. murder before used
allegedly last “no that Sacco’s words were Kellington told others no,” discussing After angered appellant.3 Bobby which *7 gun of murder, dispose the appellant and Prosdocimo left apartment. and took Gabler back to Rossi, a by Kellington’s testimony was bolstered Charles prisoner-witness in the federal prisoner serving time federal plea to a pursuant also testified who protection program, appellant he had that known agreement. Rossi testified a six month shooting and that over years prior fifteen man times that a him or three appellant told two period going appellant was had killed Sacco and that named Gabler indicated also Appellant all over. to kill when it was Gabler killing. Appel- paid had for the been appellant to Rossi that charac- trial, put on five no witnesses at but lant presented the case. of during penalty phase the ter witnesses aided others that appellant evidence establishes The The evi- killing. committing intentional and an planning appellant is therefore, is to establish that dence, sufficient degree murder. of first guilty appellant has this court argument before
In his brief the As indicted above of error. raised numerous allegations actually shot. fired the fatal dispute Gabler is that Miles 3. There no words. prompted his final Only Sacco knows what Thomas conviction must be reversed on the basis of two reversible errors committed the by opinion trial court. Our will be limited to a of upon discussion the two issues which we judgment, remaining by appellant reverse issues raised will not be addressed.
THE JURY INSTRUCTIONS
The most
two errors
egregious
fail
ure
give
appropriate
trial court
so-called,
source
“corrupt
charge,”
regarding the testimony
of Charles
court
Kellington.4
request
trial
refused
corrupt
ed
charge5
gave
source
and instead
the “false
Although
appellant alleges
corrupt
charge
that the
source
should
given
respect
also have been
to Commonwealth witness Charles
record
Rossi the
an
Charles
does not establish sufficient
evidence
Rossi was
accomplice.
only
We therefore treat this assertion as addressed
Kellington.
corrupt
charge
requested
appellant
5. The
source
as
is set forth
(Criminal),
Pennsylvania Jury
in the standard
Instructions
where it is
appears
recommended for use in cases where
witness
it
a Commonwealth
See,
Bubna,
accomplice.
is an
Commonwealth v.
357 Pa.
(1947).
provides
pertinent part:
Initially we
permits
an
Charles
accom-
an inference that
light
in the
most favorable
plice.7 We review
evidence
Com-
as
verdict winner below.
to
Commonwealth
Burton,
v.
(1973).
monwealth
As Kellington unfolded the details of particu- sordid lar conspiracy he revealed his own in the involvement leading events to Thomas Kellington Sacco’s death. knew the to plot of kill from inception. Kellington Sacco its the at crucial present meeting discussing alternate locations and methods to commit the crime. Only Kellington’s testi- mony suggests gun given apart- that the to Gabler ment was the murder weapon.9 Kellington actual housed Gabler, man, the trigger before and after the shooting. Kellington was at present the scene and stayed to obtain additional for appellant information after the shooting. post-murder attended the meeting and drove trigger man home. clear from his
Equally testimony is the fact that Kelling- ton falls none of the exceptions within to definition of accomplice 306(f).10 an as set forth in 18 At Pa.C.S.A. no § crime, time did attempt prevent he police alert the or victim; warn the intended nor he did terminate his involve- intentionally Kellington's 8. We have limited our review of only portion elicited on direct examination. recovered, however, weapon The murder 9. was never testi- magnum fied that calibre .38 bullets were in the .357 revolver when it given to Gabler. It was a .38 calibre bullet which caused Sacco’s death. provides section as follows: (f) exceptions. provided by by otherwise this title or —Unless offense, defining person law not an is in an offense person committed another if: (1) offense; he is a victim of that (2) the inevitably offense is so defined that his conduct incident commission; to its or (3) complicity prior he terminates his commission and; offense (i) deprives wholly off it effectiveness in the commission offense; or (ii) gives timely warning to the law enforcement authorities proper prevent otherwise makes effort the commission offense. of the commission prior hand at activity ment crime. was an possibility support
Further *10 agreement the plea from gleaned can be accomplice in this case. testimony exchange for in negotiated was it states as follows: (5) agreement of the five paragraph At plea agreement, of this condition 5. As a further to guilty of Kellington pleas will enter Patrick Charles commit to degree conspiracy and/or murder in the third of Thomas Sacco with the deaths murder in connection Attorney of District by filed DeStefano “Stretch” the Com- Attorney of or the General County, Allegheny authorized duly or such other Pennsylvania of monwealth if, in of said opinion authority, enforcement law warranted, the facts based on officials, charges said are and the law. must have be- authorities this case
The prosecuting mur- the Sacco was an lieved that para- for the insertion of exists justification der. No other agreement. in the plea five graph evidence, District statements the Assistant Although certainly reflect at trial jury made to the Attorney at least accomplice, was an supposition that jury. Anticipating as such would viewed present, he to the witnessés would probable reaction jury’s them about the forewarned Attorney the Assistant District the trial. during would encounter unsavory characters finding task of “men of the acknowledged He the difficult a mur- testify real nice who could about people” cloth and He drug of a network. der committed furtherance surrounding testimony conceded that about the events from within people could come only Thomas Sacco’s death that network. Kellington,” to the name “Charles
Introducing all of a [Kellington] just “He didn’t prosecutor stated: because, you way and see the light right sudden see know, and a friend of Prosdocimo and part good he was Kellington, his circle of friends. Charles in the right middle it. ... Charles Kellington part that inner In his circle.” summation the prosecu- tor again referred to Kellington’s pivotal role in this con- murder; spiracy commit Tommy gets Sacco burned “[if] snitching on the drug operation, who is going go tell on Tommy Sacco or killing? Sacco’s It’s not going to happen, and it wouldn’t have been Charles ei- ther.11 The only person that it’s going to come from going to be someone that 'circle.” from
Kellington’s alone is sufficient to create the inference that he was an accomplice in the conspiracy murder Thomas prosecutor’s Sacco. The statements and verbiage actual of the plea agreement add considerable support this conclusion.
It was in
companion
cases of Commonwealth v.
*11
Thomas,
34,
479 Pa.
(1978)
Two the of BBI members testified against Thomas and Upshur; revealing their knowledge of the murder after the fact, purpose BBI and the fact that the used gun property was of the BBI. Because of the conspiratorial BBI, nature of this court held witnesses, that those even without actual knowledge of the specific criminal act involved, were accomplices. Reversing the conviction for being 11. The inference here that testifying would not be plea agreement. absent source requested corrupt give failure to the trial court’s held: charge we should a that it instructing jury
The rationale behind suspicion when accomplice of an view in the lies prosecution, for the testifies witness, out of a reasonable such a that recognition inculpating has an interest leniency, expectation required, the to accomplice charge For an be others. the witness was the inference that require need not facts an such only permit need accomplice, an fact present is the evidence sufficient inference. If wit- respect prosecution’s to whether question with an is entitled to accomplice, the defendant ness was an given witness’s weight as to instruction 37, A.2d Thomas, Pa. at at supra. testimony. [emphasis added] light of our decisions at facts of this case
Looking corrupt entitled to a appellant was Upshur, Thomas testimony. charge regarding Kellington’s source allegation that turn to the Commonwealth’s We now permitted if the evidence an inference even give the trial court’s failure accomplice, was an harmless standard charge source error. corrupt claims harmless error which this must consider by Court “an succinctly enunciated Mr. Justice Roberts: court appellate held harmless unless the error cannot be the error could not have contributed determines that that an possibility there is reasonable verdict. Whenever conviction, *12 to the error might error have contributed 409, 391, 476 Pa. Story, not harmless.” v. Commonwealth (1978). has 155, 383 A.2d 164 The Commonwealth a of that the error was harmless proving beyond burden Williams, Pa. v. 524 reasonable doubt. Commonwealth 404, 536, (1990). A.2d 538 573 harm- here asserts that the error was
The Commonwealth one, charge in all” given less the “false in false because cross coupled with the examination to attorney was sufficient closing argument appellant’s 376 Kellington’s
alert the to scrutinize jury testimony carefully. This assertion is specious.
It is an axiomatic
of our
principle
jurisprudence that the
judge
trial
has the sole responsibility
instructing
for
jury on the law as it
to th'e case
pertains
before them. “The
elucidating
function of
the relevant legal principles belongs
judge,
and the failure to fulfill this function deprives
the defendant of a fair trial.”
Bishop,
Commonwealth v.
485, 490,
794,
472
(1977).
Pa.
372 A.2d
796
The function of
cross-examination,
from
which derives
the constitutional
confrontation,
right of
“is to provide an accused with an
effective means of challenging
against
the evidence
him by
testing the recollection and probing the conscience of an
Ritchie,
adverse witness.” Commonwealth v.
357,
509 Pa.
364,
148,
(1985);
in part,
502 A.2d
152
part,
rev’d in
aff'd
39,
989,
(1987).
480 U.S.
107 S.Ct.
The duty of instructing
as to the law which is to
applied during
be
their deliberations cannot
delegated
or usurped
aby
litigant
involved in the trial of the case.
Regardless of how
appellant’s
effective
attorney may have
client,
in representing
been
the judge carries the sole
responsibility
instructing
jury.
this case the
primary evidence against appellant was the
Therefore,
Kellington.
“it cannot be assumed
beyond
reasonable doubt” that the failure of the trial court to give
corrupt
source charge “did not contribute to the ver-
supra,
dict.”
Story,
THE PLEA AGREEMENTS con trial court by committed the The second error Kell to Charles pursuant which plea agreements cerns the case. The actual testified this and Rossi ington Charles the conditions of the terms and setting forth documents Governmental authorities between various deals reached sent out with improperly were Kellington and Rossi during their deliberations. Rossi, into among plea agreement In the entered Penn- of of America and the Commonwealth United States alia, “provide agreed, complete sylvania, Rossi inter Pennsyl- of ... the Commonwealth truthful information to agreed Rossi also testify required.” ... and ... vania information con- and truthful “provide complete therein partici- all which cerning any illegal activities [he] “complete Additionally, agreed provide Rossi pated.” of DeSte- Gary the deaths and truthful information” about Sacco, The among agreement and Thomas others. fano “if time it is determined ... any stated that at also informa- and truthful provided complete ... Rossi has has at time agreement any for ... or tion as called statement under oath connection knowingly made false subjecting will be agreement, with the terms of this [he] en- for prosecution perjury____” himself to a agreement virtually language. into of identical plea tered agreements these two The documents which formalized for Attorney the United States signed by were then Attorney of Pennsylvania, the District Western District for the General Common- Allegheny County, Attorney Kellington respectively, Rossi and Pennsylvania, wealth individually represented Rossi and Attorneys and the who agree- to these signatories at the time. documents, ments, executing placed imprimatur that Rossi and support proposition of their offices as telling were truth. prosecution to beyond question permitting It is during with the jury send these documents out deliberations Rossi and credibility Charles impermissibly bolstered their Charles so Kellington. bolstering credibility, court a fair right violated the defendant’s trial.
This Court
to deal
a related
had occasion
with
issue in
Tann,
593,
(1983).
500 Pa.
In reversing Larsen, Tann’s Mr. Justice writ- ing for the held that majority, the Commonwealth could not:
call to the attention of the fact witness, the that a who is associated with the in the activity accusfed giving rise to the charges, criminal has [footnote omitted] waived his rights against Fifth Amendment self-incrimi- nation and is taking witness stand to tell the truth. This tactic has the effect of to the emphasizing jury that defendant, witness, who is associated with has the same to waive opportunity rights his constitutional tell the truth. The defendant unduly prejudiced by this invitation draw an jury to inference blantant[sic] from the fact that witness is foregoing his constitu- tional right against This self-incrimination. tends to spot- light the if accused he fails to do the same thing and clearly improper invites an prejudicial inference from the jury. id. at 459 A.2d at (emphasis original). In the judice, case sub introduction of the plea agreements witnesses, served as silent causing the same prejudice appellant as we held to reversible error in the case of Paul Tann. With the agreements them, before the jurors could infer reasonably appellant that had the opportunity same as Rossi and Kellington cooperate death, and chose to of Thomas Sacco’s investigation appellant did take silent. fact remain his claim that own defense further bolsters stand might error have possibility is a reasonable there Story, supra. contributed to the verdict. had plea agreements that the argues
The Commonwealth had not been they revealed jury; to be revealed attacked for misconduct. would now be the Commonwealth the real issue. It would have been argument This avoids the existence for the Commonwealth reveal appropriate thereof, agreements, parameters through of the necessary If still felt it testimony of the witnesses. could have they simply into evidence enter documents of the to delete the agreements prejudicial redacted portions *15 counsel, prior defense submis- aspects, requested by allow to read these jury. jurors of them to the To sion during their leisure deliberations unredacted documents at requirements Tann runs afoul of the case fairness. fundamental case prosecutor’s closing argument highlights in this these unredact- danger permitting jury review In his stated that agreements. argument, prosecutor
ed nice to find “men of the cloth real it would be difficult fact, question. about the events people” testify examination, Rossi and direct prosecutor’s pursuant violence, committing acts of extreme Kellington admitted to scale, and extortion, theft, grand murder. drug crimes on mem- were these two witnesses unquestionable It is that society. elements of our corrupt of the most vile bers into these that vouch admitting agreements evidence byYet testifying sub credibility, government for their witnesses this once” these lowlife “just silentio are trial” they “during this believed; should on “being right halo of governmental crowned with cau- neither jury credible. The are therefore side” and nor to disfavor” upon to “look tioned others be- “falsely blame may realize that the witnesses motive”, persuaded were corrupt and wicked cause some that the the truth telling believe witnesses were because government’s own documents said so. This impermissi- vouching for witnesses of especially ble witnesses— our sense of and our notion of the decency caliber—offends fundamental fairness inherent in our judicial system.
The Commonwealth correctly asserts that the deci
sion to send these documents out
with the
was a
question to be left to the discretion of the trial judge, and
discretion,
absent an abuse of
that decision cannot be over
However,
turned. Pa.R.Crim.P. 1114.
as succinctly stated
by
Superior
our
Court in the recent decision of Common
Kubiac,
402,
wealth
Pa.Super.
(1988),
v.
For the reasons set forth judgment above the of sentence is reversed and the case remanded for a new trial.
FLAHERTY, J., files a dissenting opinion, in which NIX, C.J., McDERMOTT, and J., join. corrupt charge only We reiterate that the source should have been given regarding Kellington’s testimony.
FLAHERTY, Justice, dissenting. majority that has written Cappy
Mr. Justice for murder. I trial entitled to third Bricker is Robert strongly dissent. trial a new is granting reason for
The majority’s primary an instruction give failed erroneously court trial I not believe that do accomplice. an required.1 instruction accomplice (Criminal), although Pennsylvania Jury Instructions 1. The Standard instruction, part, pertinent following jury in binding, suggest the not dispute is a to whether the Commonwealth which there as for cases in witness is an accomplice: [Kelling- (1) apply your special may consideration Some rules testimony concerning of the the defendant’s commission ton’s] charged crime (2) in this case. First, [Kellington] not himself you decide whether or must committing the with which the joined else in crime with someone [Kellington] charged. Although did not admit his own defendant involvement, contrary support could conclusion. other evidence heard, So, you considering you must first all have after the evidence [Kellington] participated as an ac- himself decide whether or complice of the crime. in commission cooperates (3) accomplice knowingly voluntarily and An is one who passive committing merely a a crime. He is not or aids another in illegal bystander happens an act and does not who to observe being sees a crime participate in it. Nor is he someone who Instead, police. an accom- report and fails to it committed who, joins knowingly, voluntarily purposely plice is someone illegal performing in an act. with someone else If, evidence, (4) [Kelling- reviewing you all conclude that after crime, considering participate then in his did not ton] if, by any special testimony you guided not be rules. But after need evidence, [Kellington] par- you did reviewing all the conclude that considering ticipate accomplice, his as an then crime by principles apply testimony you guided certain which should testimony. specially to his special rules are follows: (1) caught Experience being the commission of shows that after may corrupt person falsely blame others because some a crime a hand, may person tell the On the other such a and wicked motive. together. the crime he and others committed truth about how you (2) deciding accomplice, whether or not to believe specially following principles apply guided which should be testimony: First, upon should be looked an corrupt polluted source. because it comes from a disfavor Second, accomplice's testimony closely You examine the should accept only care. it with caution and *17 382 Commonwealth,
Normally,
winner,
as the verdict
entitled to the
would be
inference in its
that Kelling-
favor
However,
ton
in Commonwealth v.
accomplice.
was not an
Thomas,
34,
(1978),
479 Pa.
The rationale behind instructing jury it should the testimony view of an accomplice suspicion with when the accomplice prosecution, testifies for the lies in the recognition witness, that such a out of a reasonable expectation of has an leniency, inculpating interest others. For accomplice charge an to be required, need not require the the witness facts inference an accomplice, need such only permit fact an If the evidence is present sufficient inference. jury question respect to whether prosecution’s accomplice, witness was an the defendant is entitled to an the weight given instruction as to to be to that witness’s testimony. (citations
479
(emphasis added)
Pa. at
Std.Pa.J.Instr. 4.02-4.03 § 1972 accomplice An is defined Pa.C.S. § 306 as follows: (c) Accomplice person defined. A is an of another person in the commission of an offense if: (1) promoting facilitating with the intent of or the commission of offense, he: (ii) agrees attempts person plan- aids or or to aid such other ning committing it. *18 Kellington’s inference of the permit would majority he to murder Sacco because conspiracy in the involvement at Sacco; he was a the present murder plot knew of to Bricker, discussed Prosdocimo Gabler meeting at which at methods; gun Kelling- stored locations and alternate was, weap- murder according Kellington, to ton’s house on; shooting; and after the Kellington housed Gabler before meeting a and drove post-murder attended Kellington Gabler home. however, knowing plot of a does not elementary,
It that is in in a walking one that on necessarily implicate plot; accident, testified, make a as was does not one meeting, by a in one’s home meeting; storing gun in the that participant not, se, in implicate one a crime per for someone else does that gun; commits with person subsequently which a third a even one commits housing person, subsequently that who in murder, not, more, the host mur- implicate does without der; meeting and driv- attending post-murder and that does fall within the definition of ing the murderer home not “accomplice.”2 in on Kellington
While the evidence indicates that walked discussed, was it meeting being at which Sacco’s murder that Kellington part does indicate that was of discus- not he participated any sion. Nor is there evidence that of Sacco’s death. At the planning other phase Kellington in his told Bricker where meeting apartment, stored, gun did gun give Bricker’s was but he not Furthermore, anyone nothing else. there is Bricker or particular gun indicate that this was murder record to Gabler, that, itself, weapon. providing housing As any a criminal act. acts which Finally, not relevant to the performed shooting would be after accomplice follows: § is defined 18 Pa.C.S. 306 as An (c) person accomplice Accomplice A is an of another defined. person an the commission of offense if: (1) promoting facilitating the commission of with the intent of or offense, he: (ii) agrees attempts person plan- or or to aid such other aids ning committing it. conclude, I accomplice. he was an question whether therefore, accomplice.3 not an permit- if I determine that the evidence
But even were to I accomplice, an would an inference that ted not re- conclude that the instruction was still Thomas, for the stated in the reason As this Court quired. the accom- is to caution the accomplice instruction others in order to advance testify inculpate plice may words, accomplice’s In other of the interests. because own case, may lying. he liability, criminal own his cross-examination as follows: began defense counsel Kellington, you Mr. would Okay, DEFENSE COUNSEL. through of 1978 during period with me that agree *19 liar? professional were a you Yeah, lot; yes. I lied a KELLINGTON. you Isn’t it true that were mak-
DEFENSE COUNSEL. ripping in 1978 and 1979 as far as ing your living by lying drugs? off people them; Well, I lied paying yes. about
KELLINGTON. you Isn’t it true that lied to a DEFENSE COUNSEL. phoney and sold him bonds? priest I do it. I involved in it. didn’t KELLINGTON. Now, your as far as—as far as COUNSEL. DEFENSE true, not, running it started off you it is history, numbers, criminal You ran your history? as far as numbers? Yes sir.
KELLINGTON. majority’s comments made the district As to the reliance on agreement attorney contention that paragraph plea to bolster its on 5 of the Kellington accomplice, was an little need be said. unsavory not make him an merely was an charac- prosecutor stated that associated with criminals. That does ter and that he accomplice agreement, plea what any particular crime. As to the agree- plea prosecuting believed when entered the authorities agreement in the case. The ment with is not evidence itself, nothing possibility more than the speaks for and it indicates "if, required plea in the Sacco case would be to enter a that in the on warranted, officiab, charges opinion said are based the said and the law.” the facts And worked for Mr. you DEFENSE COUNSEL. Joe DeMarco? Yes sir.
KELLINGTON. DEFENSE COUNSEL. And isn’t it true Mr. DeMarco is a good yours? friend of
KELLINGTON. Yes sir. DEFENSE COUNSEL. And while you working were for DeMarco, Mr. you dealing were also in heroin? Yes KELLINGTON. sir.
DEFENSE And you COUNSEL. were also working strong a—sort of like a armed body guard? KELLINGTON. Collector. Yes. collector; A fact,
DEFENSE COUNSEL. you were collecting debts for Mr. DeMarco?
KELLINGTON. Yes sir. DEFENSE COUNSEL. And that regard was with to his loan sharking operation? Yeah,
KELLINGTON. that and numbers. had, DEFENSE Okay, you COUNSEL. in fact, you— also had some dealing beating up pimps prostitutes. Lee, George KELLINGTON. For yes.
DEFENSE COUNSEL. And isn’t it true that doing these collections and doing protection work you beat a lot of people up; is that correct?
KELLINGTON. Yes sir. fact, DEFENSE COUNSEL. And you have broken arms and ribs and things like that?
KELLINGTON. Sometimes.
DEFENSE COUNSEL. Sometimes? You’ve peo- broken ple’s jaws and noses? In fights.
KELLINGTON. Yes. DEFENSE COUNSEL. These are in—sometimes to col- lect from—on the loan sharking operation; is that right? KELLINGTON. Sometimes.
DEFENSE COUNSEL. And while you this, were doing you would use a black jack weapons? other Sometimes.
KELLINGTON. in- Now, were you you Okay. COUNSEL. DEFENSE — robberies, is that correct? armed volved in certain One. KELLINGTON. in some And involved you COUNSEL. were
DEFENSE burglaries also? Yeah, or two. one
KELLINGTON. time— during And these—this DEFENSE COUNSEL. time from ’75—1975 say and talk about the we’ll of— drugs, into is that ’79, the use you heavy were towards correct? Yes sir.
KELLINGTON. addition, counsel estab- 5/31/88, 69-73. In defense N.T. crime, and lies Kellington’s life violence lished that Kelling- in which in at least one other homicide culminated shooter, that Kellington ton had identified as the and been provid- free of the he cooperation was at that time because ined this case. in- requested defense counsel
Although struction, appropriate trial court determined that instead, instruction, follows: was as Also, case, deliberately if decide that a witness you in this material about a falsely point testified about a —that trial, could the outcome matter which effect [sic] alone, for that reason choose to disbelieve you may, are do so. you required rest of his testimony, but falsehood, only You consider not deliberate but should bearing credibility also all other factors on the witness’ of his parts or not to believe other deciding whether testimony. counsel, capitalizing Kellington’s defense on closing, stated: given, and the instruction to be knowing He Kellington. of Mr. remem- memory selective up things years ago beating
bers from about prostitutes collecting money threatening people them then he that he had a beating up, forgets but *21 fight Forgets with Mr. Mr. Sacco called him Sacco. names. He forgets We learn that cross-examination. things that Sacco was about the DeStefano homi- saying cide. He word out on forgot put that Sacco was— street about it. It come out on direct examination. didn’t It came These through out cross-examination. are the things that Mr. from Mr. Kell- pulled —were ington. trigger He that he was I.D.’d as the man forgot Florida; then, one point and Lean that I remember said, think is is very important, only for what but for how it was I can here and being asking said. remember him if Zoo, he ever a deer in Park Highland shot and he—what did I Right. you he submit he immedi- say? said, ately “It wasn’t me. That officer police was him, shot county somebody. some detective or It him,” so, wasn’t me that shot although laboriously or I maybe go ineffectively, trying through tran- scripts, when he that I finally get realized would said, point that, where he admitted “I’ll had he save you the time. I deer. I deer in Highland shot that shot the Park.”
This is type person dealing that we’re with. He’s lied. He’s cheated his whole He’s life. made his living a very good living out of lying cheating. —and He made his life of lying cheating. out He stood to gain accomplished freedom. He goal. When the police were he informed had on information these un- solved gave information, homicides and he I’m sure that they just said, “Well, finally rightfully we have to go with it.” believed him. They Obviously, somebody him, believed fact but the that he believed at one point, that, any way that, fact, does imply what he’s saying It truthful? does not.
Somehow, in some way, you must make a determina- tion of this case only based on the of Mr. Kellington and Mr. Rossi the only because they’re people *22 must Somehow, implied it be Mr. Bricker.
that linked up through getting of confession through that this act liar,” he “I’m a therefore unabashedly saying, here and again to tell he’s been born can tell the truth that now liar, being to a therefore I admit truth “Because now. you anything I to that me.” submit you have to believe a should raise say you to Kellington that Mr. would mind. your reasonable doubt make doubt is what would that reasonable Remember pause or hesitate before prudent person a reasonably I you in their life. submit to doing something import make a Kellington Mr. has said should that that anything hesitate. You would person pause or reasonably prudent is an Kellington that man. Mr. buy not a used car from liar, being that liar, he admits to admitted and because now, now be- him where grant redemption doesn’t he— telling so now I’m things, to all those bad cause—I admit way. It that You still have the truth. doesn’t work you still have to saying. he’s You believe consider what I you, cannot believe saying. you what he’s submit Kellington. of Mr. word men, fiction,
The con writers of the best best best mix people, they over on other get that are able to people reality. mix truth They mix fiction. truth and killed. Tommy Sacco was The truth of matter Bricker, way, any in. had any The is that Mr. fiction Mr. reality Kellington’s in it. The is that involvement Mr. was used. Kellington’s gun Mr. arm was used. Kellington facing Mr. Kellington had motive. electrocution. mythical creates a back-
I submit to Mr. you, judge fact Mr. killed. The that Sacco was ground [the] you tell that there’s another you, instruct and he will will consider, princi- must and that you of law that principle Latin, it is from and what ple comes [falsus —it uno, That if false—if you means are falsus omnibus]. falsely chair testifies on takes a witness a witness one he could on thing, everything. judge be false instruct and a rule you will that is a rule of law can If you obviously you take to heart. believe that Mr. thing, disregard has lied on one could you “Oh, testimony. right say, whole You also have the I this, don’t I believe Mr. on but him on believe that, that.” You I can do but submit to it would you inconsistent with oath. your
Please use your Judge testimony common sense. only by what hear hear you you Judge but how it. testimony by not how only somebody says something —or *23 not only by they say, what but how it. Did Mr. they say Kellington ever eye make contact? Did he look believa- ble? Did you get a visceral reaction of belief? That’s how the judge you will tell have to determine credibility. Use the collective common sense that you have that has enabled each and one of every you age attain this in that, life. oath, Use by your abide and we’ll be complete- satisfied____ ly 6/1/88,
N.T. 56-66. It is apparent reading portions from of defense counsel’s cross examination together and summation the with instruc- tion from the court that the was well jury apprised of the danger inherent in Kellington’s Further, testimony. the jury was well aware that power it had the to disbelieve portion some or all of what said and that it could totally disbelieve all of his if it testimony determined that he lied in single a instance. Finally, jury the was aware that Kellington had received favorable treatment re- with spect to other crimes in which he was involved because of in testimony short, this case. In jury the was aware that Kellington was a criminal had past, who lied the who might lying in the present, was, and whose testimony therefore, suspect, and that had the authority disbe- lieve any or all of the if testimony they disbelieved any part of it. accomplice of requirement
This an instruction Court’s per se Where, rule. as Thomas was never intended as of the Thomas here, rule have achieved the been purposes summation, through vigorous cross examination and the give instruction court’s refusal was trial which jury charges does not utilize Pennsylvania not error. do not enforce rote rigidly must be read verbatim. We relation to charge rather examine the language, but fairly apprised of the jury record to see whether the case, if Kellington even were viewed law. this applicable pitfalls of the fairly an warned accomplice, jury as Kellington, of witness such believing Thomas accomplished. enunciated purpose and substance, elevate form over some- To hold otherwise would to do. thing repeatedly Court has refused and order secondary As a reason to reverse conviction trial, has determined that it was error to majority a new Rossi plea agreements go of permit the deliberations. The rea- during majority out with of plea agreements sons that because prosecution tell the require pain Rossi them to truth on because the are executed agreements perjury, District of Attorney United for the Western States Attorney Allegheny County, the District Pennsylvania, for the Attorney Pennsylva- General Commonwealth *24 nia, attorneys, their as Rossi and well documents,’’ government, “by executing placed of on the truthfulness the testi- government of guarantee concludes majority and Rossi. The mony of in the hands of question” plea agreements that the “beyond witnesses to of the state’s credibility bolstered fair trial. Bricker denied a the extent that it The to this is that is absurd. The short answer view believes implies that the Commonwealth agreement merely If That, is in case. every true presumably, its witnesses. witnesses, its it would did not believe the Commonwealth on to if it did them put them on to And put testify. not statements told made false testify they and found that
391
truth, would,
than the
presumably, prosecute
less
whole
it
case,
every
them for
This is true in
not
penury.
just this
one,
here,
and if
it
requires
require
it
a reversal
should
a
every
puts
reversal
case which the Commonwealth
on
witness and
if it
him.
a
acts as
believes
Tann,
Commonwealth v.
on
majority’s reliance
593,
(1983),
proposition
Pa.
Rather agreements than the constituting silentio sub testimony on the of the part government this “just once” these untrustworthy criminal are to witnesses believed, the agreements effect of these was to warn the criminals, to remind jury, they dealing them were and that the of their danger lies and deceitfulness was so extreme, case, even that the government ready stood them prosecute perjury, should it come to light that lied. endorsing witnesses, Far from govern- these ment’s own document reveals the extent its distrust. *25 There was no error in the these plea agree- admission of its discretion in trial court did abuse
ments and the with them. plea agreements allowing take jury as a group court erred is to treat To hold that the agreement the plea who can be told about of medieval serfs for fear not be shown the actual document may who but signatures on a by gold dazzled seals will be by the submitted paper state.. the majority’s in this case is only abuse discretion give a twice convicted conjure up reasons
willingness trial. yet murderer a third
I dissent. McDERMOTT, J., C.J., opinion. in this NIX, join
581 A.2d SIMEONE, Appellant, Catherine E. Walsh
v. SIMEONE, Appellee. A. Frederick Pennsylvania. Supreme Court of 23, Argued Jan. 1990. Sept. Decided