SPAETH, Judge, concurring and dissenting:

The majority holds, first, that we should consider appellant's claim that the charge was erroneous. I think this claim has been waived. When the trial judge asked defense counsel what was wrong with the charge, counsel wouldn't tell him. I shouldn't let counsel tell us what he wouldn't tell the trial judge. Next the majority holds that the charge was not erroneous because it "did not permit the jury to [use] the testimony of one accomplice to corroborate that of another." Slip op. at 10. I think the charge in its most obvious meaning did permit this. It was at the very least ambiguous. But there was no need for any ambiguity. The trial judge had only to give either the unambiguous requested point for charge or the approved standard form of jury instruction.

An unusual feature of this case is that appellant has filed a pro se brief arguing that his counsel was ineffective in waiving the claim that the charge was erroneous. When this case was argued before a panel of this court of which I was a member, I concluded, with Judge BROSKY concurring, that we should consider appellant's pro se brief, and should grant a new trial because there could be no reasonable basis for counsel's failure to preserve the claim that the charge was erroneous. On reargument before the court en banc, the Commonwealth has persuaded me that as a matter of policy we should not consider pro se briefs.

On this view of the case, the judgment of sentence should be affirmed, for the claim that Rule 1100 was violated is without merit, and the claim that the charge was erroneous has been waived. But the order affirming the judgment should not, as the majority's order does, adjudicate the claim that the charge was erroneous. Instead, we should affirm without prejudice to appellant's right to file a petition for post-conviction relief on the ground that his appellate counsel was ineffective for failing to make on appeal the claim that trial counsel was ineffective for failing to object properly to the charge.

-1-

In holding that appellant's claim that the charge was erroneous was not waived and that we should therefore consider it, the majority relies on Commonwealth v. Wilds, 240 Pa. Super. 278, 362 A.2d 273 (1976), at 514-515, and Commonwealth v. Sisak, 463 Pa. 262, 259 A.2d 428 (1969), id., 240 Pa. Super. at 515. I quite agree that these cases hold that a claim that a charge was erroneous is preserved when counsel has submitted a correct requested point for charge and the point has been "rejected" ( Wilds) or "refused" ( Sisak). Here, the requested point was not rejected or refused. Instead, when the requested point was submitted, the trial judge told counsel, "I will leave No. 5 open for the time being," 8/28/79 N.T. 133, and he never thereafter ruled upon it.

The majority acknowledges that the trial judge never ruled upon the requested point, at 515 ("the trial judge never expressly ruled. . . ."), but, it says, the judge "manifested a rejection of the point sufficient to preserve the issue. . . .," id. I don't find any such manifestation. To the contrary, the record is clear — the majority cites nothing to the contrary — that what the trial judge was manifesting was not rejection of the point but agreement with it: he recognized that the point was a correct statement of the law and believed that he had in his own words said the same thing the point said.

However, having stated the law in his own words, the trial judge found that counsel disagreed with the charge. Specifically, counsel said he "object[ed] to the corroboration parts." 8/29/78 N.T. 109. The following colloquy ensued:

THE COURT: The what?

MR. SCHULGEN: Corroboration parts.

THE COURT: Well, in what manner?

MR. SCHULGEN: Just noting my objection.

THE COURT: You can't just do that. You can put it down, but it won't do you any good. You have to tell me in what manner it was wrong. Anything else?

MR. SCHULGEN: No.

Id.

I submit, the trial judge was right: You can't just do that, and if you do, it won't do you any good. (Or at least until our decision today it wouldn't have.) For you will be held to have waived the objection that you are "[j]ust noting" and won't explain. That is what we held in Commonwealth v. Whyatt, 235 Pa. Super. 211, 340 A.2d 871 (1975), which the majority doesn't cite, much less distinguish. There we said:

In any event, although appellant did submit a correct point for charge, he neither specifically objected to that portion of the charge as given by the trial judge, nor did he ask the court to clarify its charge on testimony by an accomplice. In the absence of a specific objection, appellant is deemed to have waived this point. Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973).

So here: Counsel submitted a correct point for charge; he did not specifically object to the charge as given; and he did not ask the court to clarify the charge. All counsel did was say that he "object[ed] to the corroboration parts." When the trial judge found this objection unintelligible, counsel wouldn't tell the judge what he meant.

To my mind, counsel's refusal represented, in the most basic sense, a waiver of counsel's right now to tell us what he meant. The principle that underlies the doctrine of waiver, and gave the doctrine birth, is that considerations of fairness to the trial judge and the efficient use of judicial resources all require that counsel must tell the judge what he meant. Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Can anyone doubt that here, if counsel had told the trial judge what he now tells us, the judge would have replied, "Oh, now I see what you're objecting to. I didn't mean that," and then would have corrected his charge?

-2-

The law on the testimony of accomplice witnesses embodies four main principles. First, the testimony of an accomplice should be scrutinized with great care, as it comes from a corrupt source, that is, from one who has had a hand in the commission of the crime. See Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978); Commonwealth v. Sisak, supra; Commonwealth v. Rhodes, 250 Pa. Super. 210, 378 A.2d 901 (1977); Commonwealth v. Vorhauer, 232 Pa. Super. 84, 331 A.2d 815 (1974); Commonwealth v. Darnell, 179 Pa. Super. 461, 116 A.2d 310 (1955). Second, if the testimony of an accomplice is corroborated, then the testimony may be considered more dependable, and received as ordinary evidence. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973), citing Commonwealth v. Turner, 367 Pa. 403, 80 A.2d 708 (1951); Commonwealth v. Elliot, 292 Pa. 16, 23, 140 A. 537, 539 (1928). Third, a fact finder may convict a defendant even upon the uncorroborated testimony of an accomplice witness, if, after the testimony has been scrutinized with great care, it is found to be true. Commonwealth v. Gordon, 254 Pa. Super. 267, 385 A.2d 1013 (1978); Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972); Commonwealth v. Richbourg, 263 Pa. Super. 494, 398 A.2d 685 (1979); Commonwealth v. Didio, 212 Pa. Super. 51, 239 A.2d 883 (1968). Fourth, and finally, the testimony of one accomplice may not be used to corroborate the testimony of another accomplice. Commonwealth v. Bennett, 220 Pa. Super. 378, 283 A.2d 724 (1971); Commonwealth v. Jones, 213 Pa. Super. 504, 247 A.2d 624 (1968).

Here, the charge adequately instructed the jury on the first three of these four principles; the issue is whether it also did so on the fourth principle, that is, this is the issue, given the majority's conclusion that it hasn't been waived.

In considering this issue, it should first be noted that the trial judge did not give appellant's requested point for charge No. 5. Had the judge given the point, there could be no question regarding the adequacy of the charge. Point No. 5 was both a correct and clear statement of the law. Had the point been given, the jury would necessarily have known that it was obliged to consider the testimony of each accomplice separately, that is, that it was to scrutinize the testimony of Mary Rodriguez, and then consider whether that testimony was corroborated by the testimony of any other witness not counting Florence Gorman, and that it was to scrutinize the testimony of Florence Gorman, and then consider whether that testimony was corroborated by any other witness not counting Mary Rodriguez. But instead of giving Point No. 5, the trial judge told the jury:

In evaluating their testimony [i.e., the testimony of Mary Rodriguez and Florence Gorman], you will also consider whether their testimony is corroborated by other sources. If you find that the testimony they gave is corroborated from other sources and you find that in the other evidence, then your concern about their testimony is not as great. If you find corroboration from the other evidence, then you will not apply the special rule that you are to give special scrutiny and special care to their testimony. The ordinary standards of credibility then apply.

(Emphasis added.)

The errors in this instruction may be seen if we put ourselves in the jury's place and try to follow the instruction.

The jury was told to start by considering whether the testimony of the two accomplices was corroborated by other sources. That consideration, the jury was then told, would lead it to adopt one of two lines of thought. First, the jury might decide that the accomplices' testimony was not corroborated by other sources. In that case, it was to apply the "special rule," and "give special scrutiny and special care to their testimony." Or second, the jury might decide that the accomplices' testimony was corroborated by other sources. In that case, it was to apply the "ordinary standards of credibility." Under this instruction, the jury would almost certainly go wrong, whichever line of thought it adopted.

Suppose the jury decided that the accomplices' testimony was not corroborated and should therefore be given special scrutiny. That scrutiny would be directed to the accomplices' testimony as a unit, for in his instruction the trial judge treated the testimony as a unit (he referred to it that way four times). But that was wrong. What the jury was supposed to do was to separate the accomplices' testimony, and give special scrutiny first to the testimony of one accomplice, and next to the testimony of the other.

Or suppose the jury decided that the accomplices' testimony was corroborated and should therefore be evaluated by the "ordinary standards of credibility." But that was wrong too. The ordinary standards of credibility are matters of common sense — something a jury is supposed to use. One of the most ordinary of these ordinary standards is that when two eyewitnesses say the same thing, it is more likely to be true than when only one does. Here, that is exactly what the jury should have been told not to do. For when the two eyewitnesses are accomplices, the "ordinary standards of credibility" do not apply, even if the accomplices' testimony is corroborated by other sources. Again, the jury must separate the accomplices' testimony, taking the testimony of each accomplice by itself, and evaluating it without any reference to the testimony of the other accomplice. Here the trial judge precluded that approach, or at least made its adoption most unlikely, not only by his treatment of the accomplices' testimony as a unit, but by his statement that if corroborated, the testimony could be evaluated by the "ordinary standards of credibility."

Perhaps a figure of speech will illustrate the trial judge's error. The testimony of an accomplice is said to come from a polluted source. Waters that come from a polluted source may be made cleaner, but only by other waters that come from a pure source, not by waters from another polluted source. In a case where more than one accomplice testifies, the jury must understand this. By whatever choice of words, the trial judge must make plain that the testimony of one accomplice cannot gain added stature, or persuasiveness — that its pollution cannot be lessened — because of what another accomplice said, and that this is always so, whether the testimony is or is not corroborated. No matter how generously read, the instruction here did not make that plain.

There was no excuse for this. The requested point for charge was correct and left no room for misunderstanding. It said in so many words that "Mary Rodriguez'[s] testimony cannot be used to corroborate Florence Gorman's, and Florence Gorman's cannot corroborate Mary Rodriguez." Of course, the judge was entitled to use his own words. Commonwealth v. Musselman, 483 Pa. 245, 396 A.2d 625 (1979); Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977). But as Judge BROSKY pointed out in his concurring opinion for the panel:

When a point of law is clearly established, a trial judge has both a duty to know the law and to present it to the jury in a concise and accurate manner. As stated in the ABA, Project on Minimum Standards for Criminal Justice, Trial by Jury, "Approved Draft, 1968," 4.6(a):

Commentary:

Section 4.6(a)

Instructions to jurors should be clear, concise, accurate and impartial statements of the law written in understandable language and delivered in conversational tone which will be helpful to jurors." Devitt, Ten Practical Suggestions About Federal Jury Instructions, 38 FRD 76 (1966).

Emphasis added. This recommendation is equally applicable to state courts as it is to federal courts.

In the instant case, the requested instruction No. 5 was a clear statement of the law [Citation]. Nevertheless, the trial judge chose not to give that instruction but, rather gave another.

Panel Concurring Slip op. at 1-2.

The trial judge's decision not to give the requested point was the more inexcusable in view of the fact that the Pennsylvania Standard Jury Instructions (Pennsylvania Supreme Court Committee) Crim.Law § 4.04 (May 15, 1972) exactly provide for the sort of case before the judge, that is, for a case in which more than one accomplice had testified. The instructions are:

First. The testimony of ( ) should be looked upon with disfavor as coming from corrupt and polluted sources.

Second. You should closely and separately examine the testimony of ( ) and ( ) and accept the testimony of each only with caution and care.

Third. You should consider separately whether the testimony of each is supported, in whole or in part, by other evidence aside from his own testimony, for if it is supported by independent evidence it is more dependable. However, you may not consider the testimony of ( ) as supporting the testimony of () . The testimony of each must be considered separately.

Fourth. You may find the defendant guilty based on the testimony of ( ) alone or on the testimony of () alone and even though the testimony of the witness on whom you rely is not supported by any independent evidence.

(Emphasis added.)

-3-

In its brief to the court en banc, the Commonwealth argues that the panel erred in considering appellant's pro se brief. It is quite true that the panel did consider the pro se brief. In the panel's view — as remains my view here — the claim that the charge was erroneous had been waived by counsel. The panel nevertheless considered the claim because it was made by appellant himself, in his pro se brief, where appellant argued that counsel had been ineffective in waiving the claim. Finding no reasonable basis for the waiver, the panel ordered a new trial.

The majority doesn't respond to the Commonwealth's argument that the panel erred in considering appellant's pro se brief. Because it holds that counsel didn't waive the claim that the charge to the jury was erroneous, it finds appellant's pro se argument to be moot. At 512 n. 6. This ignores the fact that in his pro se brief appellant made five other allegations of ineffectiveness of trial counsel, which the majority does not address in any way. In any case, since I believe that trial counsel did waive the claim with regard to the charge to the jury, and because of the other claims raised in the pro se brief, I believe that it is necessary to decide whether the Commonwealth is right that we shouldn't consider appellant's pro se brief.

In the opinion I wrote as a member of the panel, I said that I saw no reason not to consider appellant's pro se brief, adding that if we were to refuse to consider it, "most likely" appellant would file a petition for post-conviction relief alleging counsel's ineffectiveness "for failing to make the argument he tried to make in his pro se brief. Thus it will avoid undue procedural confusion, and also avoid delay, to address the issue presented in appellant's pro se brief now." Especially did I think this so since the pro se brief "not only does not pose any danger to appellant, but benefits him by presenting another argument on his behalf." Panel Slip op. at 16 n. 7.

On reargument, the Commonwealth has persuaded me that I was wrong, and that "[t]his Court should announce that it will not consider pro se pleadings until these are reviewed by counsel." Brief for Commonwealth at 16. On reflection, I've concluded that the distinction between pro se arguments that "benefit" an appellant and those that "pose [a] danger" to him is unsound. Whatever the nature of the argument, by considering it we may, as the Commonwealth suggests, encourage other appellants to submit pro se briefs, which the Commonwealth "will have to decipher and respond to," thereby "creat[ing] a shadow docket of hundreds of appeals." Id. It is not unusual for a judge to receive a pro se letter or petition of some sort from a defendant. The general practice is for the judge, or the prothonotary, to refer the letter to counsel who represents the defendant. I think we should follow the same practice with respect to pro se briefs, leaving it to the defendant to file a petition for post-conviction relief if, after we have decided his appeal, he continues to believe that counsel should have made, and we should have responded to, the argument he made pro se. It may be that sometimes this will, as I suggested in my opinion as a member of the panel, unduly prolong litigation. But on balance, I think, it will result in a more orderly and therefore more efficient administration of justice; and in most cases, at least, the defendant will not be prejudiced, for counsel will be able to consider the defendant's pro se argument, and if it has any merit, present it to us or the lower court in one way or another.

-4-

Having reached the foregoing conclusions, I should decide the case as follows: I should hold, as does the majority, that appellant's claim that Rule 1100 was violated is without merit. Next I should hold that appellant's claim that the charge was erroneous has been waived. These conclusions would lead me to affirm the judgment of sentence, which is why this opinion is in part a concurring opinion. Finally, I should hold that appellant's pro se brief should not be considered. That conclusion would lead me to affirm the judgment of sentence, but, and this is why this opinion is also a dissenting opinion, without thereby adjudicating appellant's pro se claim that his counsel was ineffective for failing to preserve the claim that the charge was erroneous, and without prejudice to appellant's right to file a petition for post-conviction relief on that ground.

CERCONE, P.J., and JOHNSON, J., join in this concurring and dissenting opinion.