Commonwealth v. Sisak, Appellant.
Supreme Court of Pennsylvania
November 28, 1969
262 Pa. 262 | 259 A.2d 428
Courts other than those of Georgia have also utilized the formal title approach.3 I believe that we should follow their lead, and hence I would vacate the decrees and remand these three cases so that a determination of record title can be made.4
Commonwealth v. Sisak, Appellant.
Jerry B. Chariton, Assistant District Attorney, Charles D. Lemmond, Jr., First Assistant District Attorney, and Blythe H. Evans, Jr., District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE POMEROY, November 28, 1969:
On February 9, 1966, Frank Sisak (appellant) was found guilty of burglary and larceny after trial by jury in the Court of Oyer and Terminer of Luzerne County. After his motion for a new trial was denied, he was sentenced to ten to twenty years imprisonment. The judgment of sentence was affirmed by the Superior Court per curiam, Judge HOFFMAN filing a dissenting opinion in which Judge SPAULDING joined. Commonwealth v. Sisak, 211 Pa. Superior Ct. 255, 235 A. 2d 630 (1967). We granted allocatur.
As we view this appeal, the question presented is whether the trial court committed reversible error in
It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter‘s trial, comes from a corrupt source and is to be carefully scrutinized and accepted with caution; it is clear error for the trial judge to refuse to give a charge to this effeсt after being specifically requested to do so. Commonwealth v. Turner, 367 Pa. 403, 410, 80 A. 2d 708 (1951).
At appellant‘s trial, the principal witness for the Commonwealth was one Arthur Dwyer. The facts of the case as testified to by Dwyer are as follows:
Appellant, whom Dwyer had never met before, came to Dwyer‘s home with a woman whom he introduced as his wife on the Monday preceding the Thursday on which the burglary was committed. Although he was in financial difficulties and his quarters were small, Dwyer permitted the appellant and his female companion to stay with him and his wife Monday night. Thе following day Dwyer located a place for them to stay with a friend of his, and helped them move to the friend‘s apartment. He did not see appellant again until 12:30 a.m. on Friday following the evening during which the burglary was committed. When appellant and his female companion arrived at Dwyer‘s home early Friday morning, appellant was carrying a suitcase, a radio, an iron and an electric clock. Immediately upon arriving, appellant stated to Dwyer, “I think we hit the jackpot.” The witness and appellant then proceeded to examine the contents of the suitcase; it contained money, jewelry and securities which had been stolen in the burglary. Appellant gave Dwyer $300.00 of the stolen money and left with him all of the jewelry. From the door of his home, the
In reciting these facts, the witness expressed no surprise at seeing appellant on the doorstep in the middle of the night laden with stolen property. Although hе stated that he had originally refused to take the money, he subsequently accepted it and used it to pay off some of his obligations.
Appellant contends that the above facts demonstrate that Dwyer was in fact an accomplice; on the basis of these facts, appellant‘s counsel requested the trial court to instruct the jury that Dwyer was an accomplice and that Dwyer‘s testimony, coming from a corrupt source, should be given careful scrutiny.1
While we accept this rule, we cannot agree that the only reasonable inference which can be drawn from the above facts is that the witness was not an accomplice. As we view them, the facts support an inference that Dwyer participated with appellant in planning and arranging for the burglary in advance of its commission. If he did so participate, then, of course, Dwyer would have been an accessory before the fact. See Common-
The Penal Code specifically provides that, “Every accessory before the fact, to any felony ... may be indicted, tried, convicted, and if no punishment is provided, may be punished in all respects as if he were the principal felon.”
We do not hold that the facts require the inference that Dwyer was an accomplice, but only that such an inference was permissible. Therefore, under the rule set forth in Brown, supra, it was for the jury to determine whether Dwyer was an accomplice and to weigh his testimony in the light of that determination and appropriate instructions from the court. The possibility of such deliberations was foreclosed by the court‘s failure to instruct the jury that they might find Dwyer an accomplice whose testimony was subject to the corrupt source rule.
The special-exception rule, as has so often been stated, is designed to prevent a party from sitting silently by, taking his chances on a favorable verdict, and then, in the event of an unfavorable verdict, complaining of matters which could have been corrected at trial had they been brought to the attention of the court in a timely fashion. See, e.g.: Commonwealth v. Williams, 432 Pa. 557, 248 A. 2d 301 (1968); Segriff v. Johnston, 402 Pa. 109, 166 A. 2d 496 (1960). In the present case, however, appellant‘s counsel did not remain silent and awаit the verdict. Rather, he requested five points for charge addressed to the accomplice rule. Each of these points was refused, and defendant was granted an exception.5 The formal submission of requested points
We hold, accordingly, that under these circumstances the failure of the trial court to instruct the jury on the accomplice rule was error. Because the jurors might well have concluded, under proper instructions, that Dwyer was an accomplice whose testimony was of little value, the error was prejudicial to appellant. In this view of the case we are not called upon to consider, as we would have been had appellant remained silent, whether or not the error of the court was “basic and fundamental.”
The order of the Superior Court and the judgment of the Court of Oyer and Terminer are reversed, and a new trial is granted.
Mr. Justice ROBERTS concurs in the result.
Mr. Justice EAGEN dissents.
DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:
I dissent and would affirm the decision of the Court below.
The Majority, ignoring a dozen recent decisions of this Court which control this case, have invented a new test for granting a new trial to an undoubtedly guilty criminal--defendant had “alerted” the Court to its duty to charge on the weight to be given to the testimony of an accomplice, or an alleged accessory after the facts. The Majority grant a new trial to this undoubtedly guilty criminal even though his attorney, although asked by the Court, had not requested such a charge and had not taken a special exception to the Court‘s charge. Moreover, the Majority grant a new trial without relying on basic and fundamental error--of which therе was none--and even though, under the factual evidence in this case, the charge as to the weight to be given the testimony of a possible accomplice or an accessory after the fact was entirely unnecessary.
Defendant presented five points for charge, each of which contained an incorrect statement of fact or law, and, as the Majority admit, was properly refused. It is well settled that where a point for charge contains correct law and incorrect law, a Court is not bound to remold the point and separate the good from the bad, the wheat from the chaff, and affirm that portion of the point which is an accurate statement of the law: Commonwealth v. Kloiber, 378 Pa. 412,* 422, 106 A. 2d 820, cert. den., 348 U.S. 875; Commonwealth v. Clanton, 395 Pa. 521,* 526, 151 A. 2d 88; Commonwealth v. Wilcox, 316 Pa. 129, 136, 173 Atl. 653. Since the lower Court is not required to accept and give a requested point for charge if it is inaccurate, it is erroneous to conclude, as the Majority does, that this
* Only Justice MUSMANNO dissented.
Moreover, there is an additional and very important controlling principle of law which is completely ignored by the Majority and precludes a reversal. At the conclusion of the Court‘s charge to the jury, defendant‘s counsel was asked by the Court whether there were any additional matters to charge upon, or any corrections desired, and no request for an additional or corrected charge was made by defendant. The trial Judge at the close of his charge specifically said to both counsel: “... then, gentlemen, before I ask for exception, or for a resume, are there any additional matters* you would like me to charge upon or any corrections at all, gentlemen, Mr. Kane first? Mr. Kane: None. By the Court: Mr. Gorham? Mr. Gorham: No, sir. By the Court: ... gentlemen, exceptions to the charge, please? Mr. Kane? Mr. Kane: I have none your honor. By the Court: Mr. Gorham? Mr. Gorham: Just a general exception. By the Court: Very well. Anything further? Mr. Gorham: No, your honor.”
Where counsel for defendant fails to ask further or fuller instructions or for corrections in the charge of the Court, although opportunity is given him, it is the well established general rule that he cаnnot, on appeal, complain of error in the trial Judge‘s statement of facts or of law:** Commonwealth v. Barnak, 357 Pa. 391, 54
* Italics throughout, ours, unless otherwise noted.
** Justice ROBERTS, who concurs in the majority Opinion, has repeatedly approved the aforesaid general rule. See: Commonwealth v. Simon, 432 Pa. 386, 389, 390, 248 A. 2d 289, Opinion in support of Court‘s Order; Lobalzo v. Varoli, 422 Pa. 5, 7, 220 A. 2d 634, Concurring Opinion; Commonwealth v. Williams, 432 Pa. 557, supra, Dissenting Opinion; Commonwealth v. Scoleri, 432 Pa. 571, 582, 248 A. 2d 295, Concurring Opinion.
Moreover,
In Commonwealth v. Williams, 432 Pa., supra, the Court said (pages 563-564): “The Commonwealth contends that appellant‘s failure to take an exception to the charge prevents our consideration of any errors therein. Because of fairness tо all the parties to the litigation and the speedy administration of trials and of Court business, it is a well established general rule* that an appellate Court will not reverse (1) on a point (a) where no exception was taken* by appellant (Commonwealth v. Stowers, 363 Pa. 435, 437, 70 A. 2d 226; Commonwealth v. O‘Brien, 312 Pa. 543, 168 Atl. 244; Commonwealth v. Donough, 377 Pa., supra (page 53)); Leech v. Jones, 421 Pa. 1, 2, 218 A. 2d 722; Millili v. Alan Wood, 418 Pa. 154, 156, 162, 166, 209 A. 2d 817; Patterson v. Pittsburgh Railways Co., 322 Pa. 125, 185 Atl. 283; Commonwealth v. Scott, 284 Pa. 159, 162, 130 Atl. 317); or (b) to which only a general exception was taken* (Commonwealth v. Smith, 374 Pa. 220, 225, 97 A. 2d 25; Enfield v. Stout, 400 Pa. 6, 14, 161 A. 2d 22; Spitzer v. P.T.C., 348 Pa. 548, 550, 36 A. 2d 503; Ellsworth v. Lauth, 311 Pa. 286, 290, 166 Atl. 855; Medvidovich v. Schultz, 309 Pa. 450, 453, 164 Atl. 338;...”
However, there is a well recognized exception to this Rule which the Majority do not rely on or discuss, but which I believe should be carefully considered and
eral law: “No portions of the charge nor omissions therefrom may be assigned as error unless speсific objections are made thereto before the jury retires to deliberate.” See, also,
* Italics in Commonwealth v. Williams Opinion.
As so aptly stated in Segriff v. Johnston, 402 Pa. 109, 113, 166 A. 2d 496: “... the trial Judge called both counsel to side bar following his charge and asked ‘Now, does counsel for either party have any suggestions, additions, or corrections, amplifications?’ Counsel had none.
“... ‘a party may not sit by silent, take his chances on a verdict, and, if it is adverse, then complain of matters which, if error, could have been eradicated during the trial if brought to the court‘s attention properly and timely. Keefer v. Byers, [398 Pa. 447, 159 A. 2d 477]; Commonwealth v. Razmus, 210 Pa. 609, 611, 60 A. 264.’ Bell v. Yellow Cab Co., 399 Pa. 332, 338-39, 160 A. 2d 437. ‘A proper administration of justice requires that new trials be not granted on errors which counsel had amplе opportunity to correct. It is only when errors are basic and fundamental and cannot be corrected at the trial that this Court will consider them under a general exception: Medvidovich v. Schultz, 309 Pa. 450; Whitton v. H. A. Gable Co., 331 Pa. 429; McDonald v. Ferrebee, 366 Pa. 543, 547, 79 A. 2d 232.‘” Also, Commonwealth v. Williams, 432 Pa., supra, and Commonwealth v. Stowers, 363 Pa. 435, 70 A. 2d 226.
* Italics in Commonwealth v. Williams Opinion.
** Italics, ours.
Miss Harriet Fisher‘s home was burglarized and shе testified as to the personal property which was stolen and which will be hereinafter referred to. Mrs. Mary Makowski, who lived next door to Miss Fisher‘s house, testified that on the night before the burglary the defendant came and knocked at her front door and asked her where Miss Fisher lived. She told him that Miss Fisher lived next door, and, in reply to his question, said she thought Miss Fisher was not at home. He then asked her if she knew when Miss Fisher would be home and she said she had no idea where she went or when she would be home.
Two witnesses, Joseph A. Cook and John Shupshinskas, each of whom was a proprietor of a restaurant within a block of the home of Miss Harriet Fisher (who was burglarized), testified that the defendant had been in their respective restaurants on the evening of the burglary and each made a positive identification of the defendant at his trial. Shupshinskas testified that the defendant entered his cafe around 11:00 or 11:30 with “a large suitcase.” Shupshinskas then testified that he called a cab for the defendant, at his request, and defendant left the cafe with the suitcase.
A cab driver, Carl Compton, identified the defendant as the man at Shupshinskas’ cafe and testified that defendant was carrying “a large suitcase and a package wrapped in a turkish towel” when he got into his cab. Compton further testified that he drove defendant to an apartment in Ashley and picked up a lady who was “cross-eyed.” He then took defendant and the woman
Dwyer, defendant‘s alleged accomplice, testified as follоws:
Defendant-appellant, whom Dwyer had never met before, came to Dwyer‘s home with a (cross-eyed) woman whom he introduced as his wife on the Monday preceding the Thursday on which the burglary was committed. Dwyer‘s wife had met defendant the night before while baby-sitting. Although he was in financial difficulties and his quarters were small, Dwyer permitted defendant and his female companion (whom he called his wife) to stay with him and his wife Monday night. The following day Dwyer located a place for them to stay with a friend of his, and helped them move to the friend‘s apartment. He did not see defendant again until 12:30 A.M. on Friday morning following the evening during which the burglary was committed. When defendant and his female companion arrived at Dwyer‘s home early Friday morning, defendant was carrying a suitcase, a radio wrapped in a towel, an iron and an electric clock. Immediately upon arriving, defendant said to Dwyer, “I think we hit the jackpot.” Dwyer and defendant then proceeded to examine the contents of the suitcase; it contained money, jewelry and securities which had been stolen in the burglary. Defendant gave Dwyer $300 of the stоlen money and left with him all of the jewelry. Dwyer admitted he had been previously convicted of robbery and larceny. Although Dwyer testified that he had originally refused to take the money, he quickly changed his mind and accepted it and used it to pay off some of his obligations. From the door of his home, Dwyer watched defendant throw the suitcase and the strongbox (both of which were Miss Fisher‘s) which
Mrs. Dwyer testified that the defendant and a woman who was “cross-eyed” entered their home on Friday morning about 12:30 A.M. She testified that defendant entered with a “suitcase ... a radio and an iron and binoculars.” Defendant and his (alleged) wife then opened the suitcase in the presence of both Mr. and Mrs. Dwyer. Mrs. Dwyer further testified: “Q. And did you see the Defendant open up the suitcase? A. Yes. Q. And were the contents examined in your presence? A. Yes. Q. Now, did you see any name on any of the bonds and other papers in the suitcase? A. There was one bond that I seen that had Miss Harriet or Frank Fisher.” She also saw a woman‘s watch, which was later identified as Miss Fisher‘s, and there were a lot of other things, such as papers, bonds and jewelry. When defendant left, she watched him go across the street and throw this suitcase and a strongbox into a railroad boxcar, which was right across the street. Defendant put the jewelry on a television set, where it remained until the next night when the police came, and she gave the jewelry to the police. In several other material matters Mrs. Dwyer‘s testimony corroborated that of her (alleged common-law) husband.*
* Defendant testified in his own behalf that on the night of the burglary he was at the home of Sammy Capitano, but Capitano was unable to say when defendant left on the night of the burglary, for he was not at his apartment. Defendant then denied the burglary and larceny and particularly testified that he had never seen
Dwyer‘s testimony and his admissions both as to his prior criminal record and his assistance to the defendant before and after defendant‘s burglary and larceny, as well as his participation with defendаnt in the fruits of the crime, clearly showed the jury--without any admonition from the Court--(1) the kind of a man he was and (2) that his testimony must be carefully scrutinized** and accepted with caution. Even so, and although not requested by the attorney for the defendant, the Judge should have so charged the jury.
the jewelry, bonds or stocks. Defendant did not produce any witnesses or other evidence to substantiate his denial of the Commonwealth‘s evidence.
* The lower Court held a preliminary hearing on the voluntariness of the statement, and determined it was a prima facie voluntary statement. There was no objection on the part of defense counsel to this determination, nor has there been any objection made to it before this Court on appeal.
** Strange to say, one reading Dwyer‘s testimony is impressed with his frankness and truthfulness.
In the tidal wave of crime which is sweeping and terrorizing our Country, it has been too often forgotten that Justice is not a one-way street--one-way for the criminal only--but a two-way street in which the rights and the protection and safety of the public are, or at least should be equal tо those of a person accused or guilty of crime.
For the aforesaid reasons, I dissent and would affirm the judgment of sentence.
Schott, Appellant, v. Westinghouse Electric Corporation.
Notes
The requested points for charge were as follows:
“1. The main witness for the prosecution is the actual perpetrator of the crime and as such is an accomplice, conspirator and/or co-defendant along with Francis Sisak.
“2. See Comm. vs. Darnall, 179 Pa. Superior 461, and as such, his uncorroborated testimony should be criticized and looked at from every angle. You are to test the question of its truth or falsity by every test which occurs to you. Freedom vs. U.S., 274 Fed. 603 and see also, Comm. vs. Howe, 84 Pa. Super. 295.
“3. The testimony comes from a tainted source and while you аre considering it, remember from what kind of witness the testimony comes. Freedman vs. U.S., 274 Fed. 603. See also Comm. vs. Cunningham, 161 Pa. Super. 276.
“4. You should give far greater care and scrunity [sic] to the tainted testimony of the accomplice in light of testimony exculpating the defendant from witnesses of unsullied reputation. Arnold vs. U.S., 94 Fed. 2d 499.
“5. You, the Jury, are alone, the finders of fact and must determine whether on the basis of the aforementioned tests, the uncorroborated testimony of the alleged accomplice is credible and, in addition, even finding it credible, you are cautioned against putting too much reliance on the testimоny of the accomplice. See Comm. vs. Howe, 84 Pa. Super. 295; see also Comm. vs. Elliott, 292 Pa. 16.
“You are again reminded that the testimony of the alleged accomplice is from a corrupt source. See Comm. vs. Olitzky, 184 Pa. Super. 144.”
The general rule that the trial court need not remold incorrect points for charge is not applicable in this case. Defendant‘s requested points were in part erroneous, since they would have taken from the jury the question of whether Dwyer was an accomplice. That error was not adverted to by the trial court, however, and, as noted above, the court‘s refusal to give the requested points was based on its erroneous conclusion that Dwyer could not be found an accomplice under the facts presented.
Moreover, we note that the rule as to the remolding of points for charge appears to have originated in the case of Commonwealth v. Girardot, 107 Pa. Superior Ct. 274, 163 Atl. 362 (1932). There, the point refused was said to be too broad in that it requested the jury to consider any Commonwealth witness whom they found to have been an accomplice as a “self-confessed criminal.” The Superior Court, in upholding the refusal of this requested point, stated (at 276-7): “The charge of the court and the answers to other points ... were such as to leave no doubt in thе minds of the jury as to the caution, careful scrutiny and critical examination which should be given by them in considering the testimony of accomplices, and the corrupt source from which it came. The court is only required to answer the points as submitted. It is not its duty to remold them; and when the law has been correctly stated in the charge and answers to the points presented, the defendant has no just cause for complaint.” (Emphasis supplied) The implication of this holding is that a party whose requested point, although erroneous, alerts the trial judge to an important issue in the case, does have just cause for complaint if the law to which that point pertains is not otherwise correctly stated in the charge.