Commonwealth v. Ciotti
Commonwealth v. Ciotti
Opinion of the Court
Appellant contends that the lower court erred in refusing to instruct the jury to scrutinize carefully and accept cautiously the testimony of two Commonwealth witnesses as purported accomplices. We agree and, accordingly, reverse the judgment of sentence and remand for a new trial.
At approximately 7:30 p.m. on November 15, 1977, appellant telephoned Samuel Rossi and received permission to store something in the Rossi garage. Appellant and another man drove a brown van into the garage and told Rossi that the van contained bingo equipment. As the men were drinking coffee and watching television in the Rossi kitchen, appellant gave Rossi $200 and suggested that he “buy something for the kids.” Later that evening, Rossi became
“It is the rule in Pennsylvania that the testimony of an accomplice of a defendant, given at the latter’s trial,
In denying appellant’s requested instruction, the lower court reasoned that the jury could not infer that the Rossis were accomplices. We disagree. “The general rule for determining whether a witness is an accomplice is ‘whether or nor he could be indicted for the crime for which the accused is charged.’ ” Commonwealth v. Sisak, supra, 436 Pa. at 268, 259 A.2d at 431, quoting Commonwealth v. Hopkins, 165 Pa.Superior Ct. 561, 564, 69 A.2d 428, 430 (1949). “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 ... (ii) aids or agrees or attempts to aid such other person in planning or committing it ____” 18 Pa.C.S.A. § 306(c).
So ordered.
. This case was remanded for a determination of appellant’s remaining contentions. See Commonwealth v. Ciotti, 496 Pa. 232, 436 A.2d 983 (1981), rev’g, 279 Pa.Superior Ct. 75, 420 A.2d 751 (1980). We granted en banc review.
. The Commonwealth’s contention that the “accomplice charge” rationale is inapplicable because the Commonwealth had never discussed bringing charges against the Rossis is meritless. Rossi’s own testimony indicated that his attorneys convinced him that he was involved and could be prosecuted even after the records were removed. He further testified that it was with this "in mind” that he went to the police. (N.T. June 19, 1978 at 62-63, 110-11). The jury could infer from that testimony that Rossi went to the police on counsel’s advice "to inculpate others out of a reasonable expectation of leniency.” Commonwealth v. Upshur, supra. That Rossi was successful in avoiding prosecution in no way lessens the scrutiny his testimony requires.
. The lower court also found that appellant was not entitled to the requested instruction because he never implicated the Rossis and his alibi defense was inconsistent with his assertion that they were accomplices. We disagree. The Rossis’ own testimony was sufficient to raise the inference that they were accomplices. Appellant’s alibi defense that the Rossis were accomplices of an undisclosed third party
. Similarly, the jury could have inferred that Mrs. Rossi was an accomplice. Knowing that her husband had been paid |200 to hide stolen merchandise, she made no effort to contact police or return the stolen property. In fact, she stayed home with the records and even jammed the garage door so that it could not be opened.
. Because of our disposition of this matter, we need not address appellant’s final contention.
Dissenting Opinion
dissenting:
Again I dissent in this case involving Anthony Ciotti. I dissent because there is no evidence to indicate that the Commonwealth’s chief witnesses, Samuel and Andrea Rossi, might have been “accomplices” of appellant, and also because I feel that the defense waived any right to have an accomplice charge read to the jury.
A person may be found guilty of receiving stolen property if he “intentionally receives, retains, or disposes of movable property of another knowing . that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.” 18 Pa.C.S. § 3925(a). 18 Pa.C.S. § 306(c) defines “accomplice” as follows:
In Commonwealth v. Thomas, 479 Pa. 34, 37-38, 387 A.2d 820, 822 (1978), our Supreme Court set forth the law on accomplice testimony:
The rationale behind instructing a jury that it should view the testimony of an accomplice with suspicion when the accomplice testifies for the prosecution, lies in the recognition that such a witness, out of a reasonable expectation of leniency, has an interest in inculpating others. For an accomplice charge to be required, the facts need not require the inference that the witness was in fact an accomplice, they need only permit such an inference. If the evidence is sufficient to present a jury question with respect to whether the prosecution’s witness was an accomplice, the defendant is entitled to an instruction as to the weight to be given to that witness’s testimony. (Citations omitted).
In the case before us, the police were totally unaware of any connection between the Rossis and the stolen records until the Rossis voluntarily came forward. I do not see how an inference might be drawn that these people who involved themselves by reporting a crime to the police had the intent to “promote” or “facilitate” the retention or disposition of stolen property. The case before us is totally unlike the
As noted previously, the rationale behind an accomplice charge is that an accomplice testifying for the prosecution has an interest beyond that of an ordinary witness, and this interest should be called to the jury’s attention so that the jury will hear the testimony with suspicion and .weigh it carefully for truthfulness. In the case before us, the following exchange took place at side-bar between the Commonwealth’s attorney, Mr. Palmisano, and appellant’s attorney, Mr. Scarpitti, after eight of appellant’s witnesses had testified and before appellant took the stand himself:
MR. SCARPITTI: Your Honor, Mr. Palmisano has graciously said that we can stipulate that Mr. and Mrs. Samuel Rossi have not been charged with anything arising out of this incident rather than having to call somebody to prove it. Would you announce that—
THE COURT: All right.
MR. SCARPITTI: —to the jury, your Honor, at this time?
THE COURT: All right.
MR. PALMISANO: There’s been no deal with them, you know. You understand. I think that—I think same token, there’s been no deal with them.
MR. SCARPITTI: I don’t know if there’s a deal or not, your Honor.
MR. PALMISANO: There is none.
*559 THE COURT: Are you stipulating on that, too?
MR. SCARPITTI: I didn’t—I didn’t assume a deal. I could—
PALMISANO: They’ve never been charged and they’ve never—there was never any approach, never any conversation about being charged.
MR. SCARPITTI: I believe Mr. Palmisano. I don’t know what the police said to ’em, of course. That’s the problem. I never asked about a deal. I mean I know you never had any contact with them.
MR. PALMISANO: Never a deal. I never heard of anything in the case about it.
THE COURT: Kind of a funny thing to stipulate on.
MR. SCARPITTI: I don’t want to seem like I’m double-crossing you, and I would stipulate that Mr. Palmisano didn’t make a deal with them, but I don’t—I don’t know enough from the police officers to know—to be able to stipulate whether or not they did say anything to them in that respect.
MR. PALMISANO: I don’t know what relevancy it is that they have not been charged.
THE COURT: You could have asked them that when they were on the stand.
MR. SCARPITTI: I forgot, frankly, your Honor.
That’s why I wanted to stipulate it rather than having to call somebody to testify.
MR. PALMISANO: But I don’t want it to go in, you know, bare that they haven’t been charged because you could have somebody on the jury thinking there’s been a deal, which is in conjunction with his trying to discredit these people.
THE COURT: Call them back then.
MR. SCARPITTI: I’d be willing to stipulate, your Hon- or, that if Mr. and Mrs. Rossi had been asked, they would testify that they were not charged and that if they had been asked, they would testify that no deal was made.
MR. PALMISANO: Right.
THE COURT: All right.
. The following points for charge relevant to accomplice testimony were presented in writing to the lower court, and were denied in chambers on record:
12. Andrea Rossi and Samuel Rossi should be considered accomplices in this case.
13. The testimony of an accomplice given at a Defendant’s trial must be carefully scrutinized and accepted with a high degree of caution because of the interest which the accomplice has in the case and because his testimony is from a corrupt source.
14. A conviction based on the uncorroborated testimony of an accomplice or accomplices is looked on with disfavor by the law.
15. An accomplice is one who is guilty of the crime charged, in this case, the crime of receiving stolen property and it is well known that when apprehended, accomplices are likely to attempt to cast the blame on others.
. Since the Crimes Code was enacted after the decision of both Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969) and Commonwealth v. Hopkins, 165 Pa.Superior Ct. 561, 69 A.2d 428 (1949) (cited by the majority for the "general rule” on whether a witness is an "accomplice”), it would seem to be less confusing and more appropriate to use only the definition of "accomplice” given in the Crimes Code.
. The lower court did charge the jury: "Ask yourself whether [the witnesses’] testimony is logical and reasonable; whether it’s plausible; whether there is any corroboration for their testimony. Ask yourself whether or not they have any interest in the outcome of this case. The Rossis certainly have an interest. The defendant has an interest.”
. Although the majority opinion indicates, n. 3, that part of appellant's defense was that the Rossis were accomplices of an undisclosed third party, the notes of testimony of the trial indicate that this simply was never mentioned (unless, perhaps, it was mentioned in the untranscribed arguments to the jury).
Dissenting Opinion
dissenting:
I join in Judge Van der Voort’s dissenting opinion: I agree that Mr. and Mrs. Rossi could not “be indicted and punished for the crime with which [appellant] is charged.” Commonwealth v. Hopkins, 165 Pa.Super. 561, 69 A.2d 428 (1948). See Subcommittee Note to Pa. Suggested Standard Criminal Jury Instructions, § 4.02. There is no evidence, that the Rossis “solicited” appellant to commit, or “aided” appellant in planning or committing, the crime of theft by
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- COMMONWEALTH of Pennsylvania v. Anthony Dominick CIOTTI, Appellant
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