Opinion
April 9, 1956.
July 17, 1956.
Criminal law — Evidence — Witnesses — Accomplice — Competency to testify — Credibility — Repudiation of testimony at own hearing — Trial before judge without jury.
1. The uncorroborated testimony of an accomplice may sustain a conviction.
2. In a criminal proceeding in which a jury trial is waived, the credibility of the witness and the persuasive sufficiency of the evidence is for the trial judge.
3. On appeal by defendant's following conviction of burglary and receiving stolen goods, in which it appeared that an accomplice had previously pleaded guilty and at that time absolved defendants; that at the trial of defendants the accomplice admitted that he had testified falsely in his own hearing but now desired to tell the truth; and that, while the accomplice was the only witness on proof relating to the criminal agency of defendants, other witnesses testified as to the burglaries; it was Held that (a) the testimony of the accomplice was not ipso facto perjured; (b) the witness was competent to testify; (c) the repudiation of his prior testimony affected only his credibility; and (d) the evidence was sufficient to sustain the conviction.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ.
Appeals, Nos. 108 and 109, April T., 1956, from judgments of Court of Oyer and Terminer of Allegheny County, Feb. T., 1953, Nos. 36, 39, 41, 42, 43, 48, 49, 50 and 63, in cases of Commonwealth of Pennsylvania v. Robert Thompson and Edwin Lewis. Judgments affirmed.
Indictments charging defendants with burglary and receiving stolen goods. Before ADAMS, J., without a jury.
Verdicts of guilty in part and judgments of sentence thereon. Defendants appealed.
Robert Thompson and Edwin Lewis, appellants, in propria persona.
Edward C. Boyle, District Attorney and William Claney Smith, Assistant District Attorney, for appellee.
Submitted April 9, 1956.
These are separate appeals by Robert Thompson and Edwin Lewis from their convictions for a series of burglaries. Since each appeal involves identical issues, we will dispose of them together.
Appellants were charged with 32 different acts of burglary and receiving stolen goods in the Court of Oyer and Terminer of Allegheny County, which occurred between October, 1952 and January, 1953. Not only appellants were involved in these burglaries, but also a Paul Stertz who previously pleaded guilty to his complicity. At that time, Paul Stertz absolved the appellants. In the trial of the appellants, Stertz recanted his testimony absolving them and detailed the part appellants took in the various burglaries. The trial of the appellants was conducted before Honorable RUSSELL H. ADAMS sitting without a jury, the right to a jury trial having been previously waived, and they were found guilty on ten indictments (Nos. 36, 39, 41, 43, 47, 48, 49, 50 and 63 February Sessions, 1953). On indictment No. 41 February Sessions, 1953, they were sentenced to undergo imprisonment of not less than eight years nor more than sixteen years and sent to the Western Correctional Diagnostic and Classification Center of Pennsylvania. Sentence on the remaining indictments was suspended.
He testified that since he received a sentence of five to ten years, he wanted to "turn them loose." In the trial of appellants, he recanted his previous testimony because he didn't "want to stick my neck in a noose — don't want to get tried for no perjury."
Subsequently, Judge ADAMS died on March 19, 1956.
From this sentence appellants have taken these appeals in which they question their convictions on the testimony of Stertz. Appellants attack the competency of Stertz to testify because allegedly committing perjury and because he was a self-confessed accomplice in the burglaries charged.
The contentions of appellants cannot be sustained.
The uncorroborated testimony of an accomplice may sustain a conviction: Commonwealth v. DeMasi, 234 Pa. 570, 83 A. 430; Commonwealth v. Elliott, 292 Pa. 16, 140 A. 537; Commonwealth v. Billingsley, 160 Pa. Super. 140, 50 A.2d 703; Commonwealth v. Ballow, 171 Pa. Super. 54, 90 A.2d 363. While the record shows that Stertz was the only witness on proof relating to the criminal agency of appellants, numerous other witnesses testified as to the burglaries and the items of property stolen. There was ample corroboration as to the commission of the burglaries.
The appellants contend, in addition, that the testimony of Stertz was perjured because at his trial he absolved appellants from these burglaries, whereas later on he changed his testimony to involve them. Whatever testimony was given by Stertz on his own plea of guilty cannot be considered as material in determining the guilt or innocence of the appellants at that time. That issue was not involved in the trial of Stertz. Even if such testimony was contradictory to that given later in appellants' trial, such testimony does not become ipso facto perjured. The witness Stertz did admit that he testified falsely in his own hearing but he now desired to tell the truth. Such repudiation of prior testimony does not disqualify a witness from testifying. No proceedings were instituted or pending for alleged perjury and he was not indicted or convicted of perjury. He was, therefore, competent to testify. Commonwealth v. Lewandowski et al., 74 Pa. Super. 512; Commonwealth v. Billingsley, supra; Commonwealth v. Shadduck, 168 Pa. Super. 376, 77 A.2d 673. Such repudiation affects only his credibility. Commonwealth v. Alessio, 313 Pa. 537, 169 A. 764; Commonwealth v. Taub, 173 Pa. Super. 165, 96 A.2d 188. And in view of the fact that a jury trial was waived, the credibility of this witness and the persuasive sufficiency of the evidence was for the trial judge. Commonwealth v. Taub, supra.
A careful examination of the trial record convinces us that there was ample evidence upon which the conviction was based and the judgment is accordingly affirmed.