Commonwealth v. Richey

• Decision Date: 06 October 1977
• Citation: Commonwealth v. Richey, 249 Pa.Super. 365, 378 A.2d 338 (Pa. Super. Ct. 1977)
• Parties: COMMONWEALTH of Pennsylvania v. Dale RICHEY, Appellant. COMMONWEALTH of Pennsylvania v. Thomas BORRIS, Appellant. COMMONWEALTH of Pennsylvania v. Raymond MARTRAY, Appellant.
• Court: Pennsylvania Superior Court

378 A.2d 338

249 Pa.Super. 365

COMMONWEALTH of Pennsylvania v. Dale RICHEY, Appellant.

COMMONWEALTH of Pennsylvania v. Thomas BORRIS, Appellant.

COMMONWEALTH of Pennsylvania v. Raymond MARTRAY, Appellant.

Superior Court of Pennsylvania.

October 6, 1977

Argued April 15, 1977.

Charles C. Gentile, Uniontown, for appellant at No. 920.

Donald J. McCue, Connellsville, for appellant at No. 921.

R W. Ziegler, Jr., Pittsburgh, for appellant at No. 976.

Joseph E. Ferens, Jr., Uniontown, with him Conrad B. Capuzzi, Dist Atty., Uniontown, for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE and SPAETH, JJ.

JACOBS, Judge.

The criminal convictions from which these appeals were taken are part of a series of cases generally known as the "Connellsville Police Cases."All three appellants were charged with conspiracy, ^[1] robbery, ^[2] and theft by unlawful taking, ^[3] stemming from an incident on April 28 1972, during which the manager of the "Foodland" store in Connellsville was relieved of the store's daily receipts.Appellant Richey, a former policeman, was convicted on all three counts, as was Thomas Borris, a civilian.Raymond Martray, also a former policeman, was convicted of conspiracy only.These appeals followed.We affirm in part, and vacate and remand in part.

Several issues are raised by all three appellants.One of those is that the trial court erred in refusing to give a "corrupt source" charge with respect to the testimony of Lucinda Borris and Sue Wedge.^[4] Such a charge was given with respect to Marvin Wedge's testimony which, if believed, clearly established Mr. Wedge as an accomplice.The trial court, after reviewing the undisputed testimony of Mrs. Borris and Mrs. Wedge, concluded that they were not accomplices in the crimes charged, and that a corrupt source charged with respect to their testimony was not warranted."(T)he test of determining if one is an accomplice of the accused on trial is whether or not he could be indicted and punished for the crime with which the accused is charged."Commonwealth v. Hopkins,165 Pa.Super. 561, 564, 69 A.2d 428, 430, allocatur refused, 165 Pa.Super. xxv (1949);see alsoCommonwealth v. Staudenmayer,230 Pa.Super. 521, 326 A.2d 421(1974).In addition, the rule is clear that when the facts concerning the participation of a witness in the crime with which the defendant is charged are undisputed, the trial court, not the jury, determines whether or not the witness is an accomplice.Commonwealth v. Brown,116 Pa.Super. 1, 175 A. 748(1934);Commonwealth v. Staudenmayer, supra.

The testimony of Lucinda Borris and Sue Wedge, appearing at pages 155-200 in the Notes of Testimony, reveals the role played by them to be as follows: Neither woman participated in the planning of the robbery, although both had overheard their husbands discussing the matter on at least two occasions.On the night of the robbery Sue Wedge and her daughter spent the evening at the Borris home.When their husbands returned home, each woman was given $2,300.00, that sum representing the husbands' share in the proceeds of the robbery.The next day, at their husbands' directions, the two women attempted to dispose of the weapon used in the course of the robbery, an attempt that ultimately proved unsuccessful.Cindy Borris testified that she was against the robbery from the very beginning, but was under the impression that as the the wife of Tom Borris, she could not make statements against him, thus explaining her silence until after she and Mr. Borris were divorced.From these facts, the trial judge found that Mrs. Wedge and Mrs. Borris did not have the requisite shared criminal intent to make them accomplices.

Mere knowledge that a crime is about to be committed does not render the person with such knowledge liable for the commission of the offense.Commonwealth v. Giacobbe,341 Pa. 187, 19 A.2d 71(1941).Furthermore, receiving stolen property does not make one an accomplice of the person who illegally obtained the property.Commonwealth v. Cohan,177 Pa.Super. 532, 111 A.2d 182, allocatur refused, 177 Pa.Super.Ct. xxvi (1955).The trial court found that Sue Wedge and Cindy Borris lacked criminal intent and did not participate in any criminal act until after the robbery.An accessory after the fact is not an accomplice, ^[5]Commonwealth v. Scoggins,451 Pa. 472, 304 A.2d 102(1973).Thus we find no error in the court's refusal to give a corrupt source charge with respect to the testimony of Mrs. Wedge and Mrs. Borris.

The second issue raised by all three appellants concerns the refusal of the lower court to grant a change of venue.Whether or not such a request should be granted rests within the discretion of the lower court.Commonwealth v. Stolfzfus,462 Pa. 43, 337 A.2d 873(1975).In exercising its discretion, the trial court must consider the extent of the pre-trial publicity.See, e. g., Commonwealth v. Frazier,471 Pa. 121, 369 A.2d 1224(1977), and cases cited therein.Included in this analysis is the consideration of the size and nature of the community exposed to the publicity.Commonwealth v. Hoss,445 Pa. 98, 283 A.2d 58(1971).Additionally, an important factor is how much "cooling off" time has passed from the peak of the publicity until the time of trial.Commonwealth v. Nahodil,462 Pa. 301, 341 A.2d 91(1975).The court must then consider the nature of the publicity.As the publicity ceases to be factual and becomes more inflammatory, the need for the change of venue increases.Sheppard v. Maxwell,384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600(1966).The source of the publicity may also weigh in the court's determination.Commonwealth v. Pierce,451 Pa. 190, 303 A.2d 209(1973).Finally, this Court recently said that the notoriety of a particular defendant prior to the publicity resulting from his arrest should be considered in light of the tendency of the public to follow such news items more closely than those involving strangers.Commonwealth v. Capser,249 Pa.Super. 21, 375 A.2d 737(filed June 29, 1977).

This Court recently reviewed the denial of a change of venue in a case with facts very similar to the one at bar.That case, Commonwealth v. Mancuso,247 Pa.Super. 245, 372 A.2d 444(filed March 31, 1977), was also one of the "Connellsville Police Cases."The defendant, Dominic Mancuso, had been the Chief of the Connellsville Police Department.For the most part, the publicity complained of in the Mancuso case consisted of the same newspaper articles and other media releases as comprise the record in this case.We are thus constrained to conclude as we did in Mancuso, that while the extent of the publicity was considerable, it was primarily factual in nature.Neither in this case nor in the Mancuso case were there any indications of prosecutorial misconduct concerning the source of the publicity.The trial in this case took place two months prior to the Mancuso trial, thus arguably there was not as much cooling time in the case at bar.On the other hand, a great deal of the publicity focused on Mancuso, since he was a well-known official prior to the publicity, unlike the appellants in this case.

It is agreed that there was a great deal of publicity in this case.In many such cases, however, a change of venue may not be necessary to protect the accused's rights if the lower court employs alternative means to insure that an impartial jury is selected.Commonwealth v. Mancuso, supra.The lower court did just that in the present case.Voir dire was conducted individually, out of the hearing of the rest of the jury panel.Counsel for all parties were permitted to conduct the voir dire following initial questions by the court.The voir dire was exhaustive, comprising over 500 pages of the record.Challenges for cause were liberally granted, often on the motion of the court.The attorneys for the defense were granted broad latitude in probing for possible prejudices of veniremen.We believe the measures taken by the lower court were adequate to insure an impartial jury and thus we find no abuse of discretion.

Appellants next argue that the statute of limitations had run with respect to some of the crimes with which they were charged.Appellants Martray and Richey raise this issue concerning the conspiracy charge, and appellant Borris challenges both the conspiracy and the theft charge.The incident giving rise to the charges took place on April 28, 1972.The indictments were approved by the grand jury in August 1975.Clearly the indictments were brought beyond the two year statute of limitations for conspiracy and theft, but within the five year period for robbery.^[6] The question was not raised, however, until the posttrial motion stage.Since no pretrial application for relief was made on this ground and the issue was raised at no time prior to the verdict, the lower court properly refused to consider it.Appellants have obtained new counsel for appeal purposes and now allege that trial counsel was ineffective for failing to raise the matter of the statute of limitations.This claim is proper on direct appeal with new counsel.Commonwealth v. Dancer,460 Pa. 95, 331 A.2d 435(1975).

To determine whether appellants were denied effective assistance of counsel, we must inquire as to the existence of some reasonable basis for counsel's failure to raise the defense of statute of limitations.Commonwealth ex rel Washington v. Maroney,427 Pa. 599, 235 A.2d 349(1967).Of course, if the defense had no merit, our inquiry would then cease.Commonwealth v. Hubbard,472 Pa. 259, 373 A.2d 687(1977).In the instant case, however, it is apparent that portions of the indictments would have been quashed had the statute of limitations been...