HomeMy WebLinkAboutCP-21-CR-0000762-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) BURGLARY
: (2) CRIMINAL CONSPIRACY TO
: BURGLARY
: (3) ROBBERY
: (4) ROBBERY
: (5) CRIMINAL CONSPIRACY TO
: COMMIT ROBBERY
v. : (6) CRIMINAL TRESPASS
: (7) CRIMINAL CONSPIRACY TO
: CRIMINAL TRESPASS
: (10) THEFT BY UNLAWFUL
: TAKING OR DISPOSITION
: (11) CRIMINAL CONSPIRACY TO
: COMMIT THEFT BY
: UNLAWFUL TAKING OR
: DISPOSITION
: (12) TERRORISTIC THREATS
: (14) SIMPLE ASSAULT
TERRENCE DEVONE TWYMAN :
OTN: K706036 – 2 : CP-21-CR-0762-2009
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., July 28, 2010.
In this criminal case, Defendant was charged with various criminal offenses as a
result of an incident occurring on January 5, 2009. Following a trial, a jury found
Defendant guilty at Count 1 of Burglary, a felony of the first degree, at Count 2 of
Criminal Conspiracy To Commit Burglary, a felony of the first degree, at Count 3 of
Robbery, a felony of the first degree, at Count 4 of Robbery, a felony of the second
degree, at Count 5 of Criminal Conspiracy To Commit Robbery, a felony of the second
degree, at Count 6 of Criminal Trespass, a felony of the second degree, at Count 7 of
Criminal Conspiracy To Commit Criminal Trespass, a felony of the second degree, at
Count 10 of Theft by Unlawful Taking or Disposition, a misdemeanor of the first degree,
at Count 11 of Criminal Conspiracy To Commit Theft by Unlawful Taking or
Disposition, a misdemeanor of the first degree, at Count 12 of Terroristic Threats, a
misdemeanor of the first degree, and at Count 14 of Simple Assault, a misdemeanor of
the second degree. The jury found Defendant not guilty at Count 13 of Criminal
1
Conspiracy To Commit Terroristic Threats. From the judgment of sentence, Defendant
2
now appeals to the Pennsylvania Superior Court.
The basis for the appeal has been expressed in a statement of errors complained of
on appeal as follows:
Given the Commonwealth’s reliance on the bought and paid for
testimony of Nicholas Soto, the evidence was insufficient to
3
establish Defendant’s guilt beyond a reasonable doubt.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, the evidence
is to be viewed “in [a] light most favorable to the Commonwealth” and “all reasonable
Order of Court, In Re: Jury Trial, March 11, 2010. At the conclusion of its case-in-chief, and upon
1
Defendant’s motion for judgment of acquittal, the Commonwealth conceded that the evidence did
not support the allegations related to Count 8, Aggravated Assault, and to Count 9, Conspiracy To
Commit Aggravated Assault. The court dismissed Counts 8 and 9 and denied the balance of
Defendant’s motion for judgment of acquittal. Notes of Testimony, 181, March 10, 2010 (hereinafter
N.T. _____); Order of Court, In Re: Motion for Judgment of Acquittal, March 11, 2010. Pursuant to an
agreement of counsel, the court dismissed Count 15, Criminal Conspiracy To Commit Simple Assault.
Order of Court, March 16, 2010.
Defendant’s Notice of Appeal, filed June 15, 2010.
2
Defendant’s Concise Statement of Errors Complained of on Appeal, filed July 2, 2010.
3
2
inferences derived therefrom” are to be resolved in favor of the Commonwealth as the
verdict winner. Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009) quoting
Commonwealth v. Montalvo, 598 Pa. 263, 274, 956 A.2d 926, 932 (2008), cert. denied
___ U.S. ____, 129 S.Ct. 1989, 173 L.Ed.2d, 1091 (2009). The trier of fact is “free to
believe all, part, or none of the evidence.” Commonwealth v. Reed, 990 A.2d 1158, 1161
(Pa. 2010) citing Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032-33
(2007).
Viewed in this light, the evidence adduced at trial in support of the prosecution
may be summarized as follows. At or around 8:00 on the evening of Monday, January 5,
2009, two males robbed Hari K. Basnet at gunpoint at his residential apartment in Camp
Hill, Cumberland County, Pennsylvania. The two perpetrators stole various items,
4
including (1) the victim’s laptop computer, valued at approximately $700.00; (2) the
5
victim’s cell phone, valued at approximately $80.00; (3) the victim’s keys to his
6
apartment and the Camp Hill Mart, a convenience store and gas station at which he was
78
employed, and (4) the victim’s wallet, containing approximately $530.00 in cash. The
9
victim identified one of his assailants as Nicholas David Soto, a juvenile with whom he
N.T. 32-33.
4
N.T. 32-33.
5
N.T. 32.
6
N.T. 15.
7
N.T. 32.
8
N.T. 25.
9
3
10
had previously interacted. Ultimately, with the help of Mr. Soto, Defendant was
11
identified as the second assailant and charged with (1) Burglary, (2) Criminal
12
Conspiracy To Commit Burglary, (3) Robbery in the form of a felony of the first
1314
degree, (4) Robbery in the form of a felony of the second degree, (5) Criminal
1516
Conspiracy To Commit Robbery, (6) Criminal Trespass, (7) Criminal Conspiracy To
1718
Commit Criminal Trespass, (8) Aggravated Assault, (9) Criminal Conspiracy To
1920
Commit Aggravated Assault, (10) Theft by Unlawful Taking or Disposition, (11)
21
Criminal Conspiracy To Commit Theft by Unlawful Taking or Disposition, (12)
2223
Terroristic Threats,(13) Criminal Conspiracy To Commit Terroristic Threats, (14)
2425
Simple Assault, and (15) Criminal Conspiracy To Commit Simple Assault. A jury
trial on all charges was held on March 10, 2010 through March 11, 2010.
N.T. 16.
10
18 Pa. C.S.A. §3502(a) and §306.
11
18 Pa. C.S.A. §903(a)(2) and 18 Pa. C.S.A. §3502(a).
12
18 Pa. C.S.A. §3701(a)(1)(ii) and §306.
13
18 Pa. C.S.A. §3701(a)(1)(iv) and §306.
14
18 Pa. C.S.A. §903(a)(2) and 18 Pa. C.S.A. §3701(a)(1)(iv).
15
18 Pa. C.S.A. §3503(a)(1)(ii) and §306.
16
18 Pa. C.S.A. §903(a)(2) and 18 Pa. C.S.A. §3503(a)(1)(ii).
17
18 Pa. C.S.A. §2702(a)(3) and §306.
18
18 Pa. C.S.A. §903(a)(2) and 18 Pa. C.S.A. §2702(a)(4).
19
18 Pa. C.S.A. §3921(a) and §306.
20
18 Pa. C.S.A. §903(a)(2) and 18 Pa. C.S.A. §3921(a).
21
18 Pa. C.S.A. §2706(a)(1) and §306.
22
18 Pa. C.S.A. §903(a)(2) and 18 Pa. C.S.A. §2706(a)(1).
23
18 Pa. C.S.A. §2701(a)(1) and §306.
24
18 Pa. C.S.A. §903(a)(2) and 18 Pa. C.S.A. §2701(a)(1).
25
4
At trial, the Commonwealth called six witnesses: the victim of the January 5, 2010
incident, Hari K. Basnet; a downstairs neighbor of Mr. Basnet, Ruth Smith; the juvenile
identified by the victim as one of his assailants, Nicholas D. Soto; the mother of Nicholas
D. Soto, Luz Soto; a forensic investigator employed by the Cumberland County District
Attorney’s office, David A. Ickler; and a Lower Allen Township Police Officer, Michael
J. Scarlotto.
In the Commonwealth’s case-in-chief, Hari K. Basnet testified that at
approximately 8:00 in the evening of Monday, January 5, 2009, he heard a knock on the
26
door of his Camp Hill apartment, opened the door, and was confronted by two people,
27
one of whom was holding a silver handgun. Mr. Basnet testified that the faces of these
two individuals were originally covered, but he testified he knew both persons were
28
male. Mr. Basnet testified that, upon the entry of the males into his apartment, the
individual holding the firearm put the barrel of the weapon in Mr. Basnet’s mouth, pulled
him into his bedroom, and stated, “[W]here’s the money, otherwise I’ll fucking kill
29
you.” Mr. Basnet testified that the same individual struck him on his forehead with the
30
handle of the gun, which caused him to bleed. Mr. Basnet testified that, at this time, the
scarf covering the face of the individual not in possession of the handgun slipped down,
and Mr. Basnet was able to see the individual’s then exposed face as reflected by his
N.T. 21.
26
N.T. 22.
27
N.T. 22.
28
N.T. 23.
29
N.T. 23-24, 32.
30
5
31
television. Mr. Basnet testified that he recognized the individual as a young male whom
32
he had previously encountered at the Camp Hill Mart, when he refused to sell the
33
individual cigarettes because he was underage. Mr. Basnet testified that the two males
34
bound his hands with the cord from a cell phone charger and shoved a sock into his
mouth, and that the man with the gun said, “I’ll take your fucking brains out. I’m going to
35
fucking shoot you.”
Mr. Basnet testified that after the two males collected the items that they
ultimately took from his apartment, they left his apartment, at which point Mr. Basnet
36
managed to get downstairs to his neighbor’s apartment, and used his neighbor’s phone
37
to call the police. Mr. Basnet testified that, upon the arrival of Officer Scarlotto, he told
38
him that he recognized one of the individuals as “Nick,” and gave a description of the
39
second male. Mr. Basnet testified that he told the officer the second man was taller than
40
he was, and was black or Hispanic.
N.T. 24; see N.T. 48.
31
N.T. 25.
32
N.T. 17.
33
N.T. 26.
34
N.T. 26-27.
35
N.T. 35.
36
N.T. 35.
37
N.T. 35-36.
38
N.T. 36.
39
N.T. 36, 52. Although the face of the second man remained covered throughout the incident, Mr.
40
Basnet testified that he thought the man to be either black or Hispanic based on the man’s voice.
6
41
Ruth Smith testified that, at around 8:00 p.m. on January 5, 2009, she heard
42
multiple people going up the stairs, and later heard multiple people going down the
43
stairs at a fast pace. Ms. Smith testified that, soon thereafter, she heard Mr. Basnet
4445
knock on her door, which she opened, and subsequently helped him dial 911.
Nicholas D. Soto, the juvenile whom the victim recognized as one of his
assailants, was charged with various crimes arising out of the incident on January 5,
2009, to which he ultimately pled guilty as part of a plea agreement with the Cumberland
46
County District Attorney. Mr. Soto identified Defendant as the second person whom he
47
accompanied during the January 5, 2009 incident. At trial, Mr. Soto gave testimony
regarding the incident with Mr. Basnet, which may be summarized as follows: Mr. Soto,
who was sixteen at the time, met Defendant approximately a month before the incident
48
through a friend, and went to Defendant’s home at approximately 5:30 p.m. on January
49
5, 2009 to play basketball. During their interaction, Defendant showed Mr. Soto a silver
50
handgun and said, “We’re going to go handle some business,” to which Mr. Soto
N.T. 56, 61.
41
N.T. 56.
42
N.T. 57, 61.
43
N.T. 57-58.
44
N.T. 58.
45
N.T. 66-67, 90-94.
46
N.T. 70.
47
N.T. 70.
48
N.T. 69-70.
49
N.T. 72.
50
7
51
replied that he was “down for it” because Mr. Soto disliked the victim as a result of
52
their previous interaction. The two males then traveled to Mr. Basnet’s apartment,
53
whereupon Defendant brought Mr. Basnet into a bedroom and stuck the gun in his face.
After Mr. Soto and Defendant collected the items that they ultimately took from Mr.
5455
Basnet, the males left and went to the house of the sister of the Defendant’s girlfriend.
On cross-examination, Mr. Soto admitted that he originally denied any
56
involvement during his initial encounter with the police. Mr. Soto testified that he was
5758
originally charged as an adult due to the nature of these crimes, but that the
59
prosecution later dropped the adult charges and transferred the matter to juvenile court
60
in exchange for his testimony against Defendant, in return for which Mr. Soto admitted
61
to his own involvement.
The Defense also questioned Mr. Soto regarding a certain letter he authored to the
victim, wherein Mr. Soto stated, “My name is Nicholas Soto, and I am the person who
N.T. 73.
51
N.T. 74.
52
N.T. 78.
53
N.T. 79.
54
N.T. 80.
55
N.T. 89-90.
56
N.T. 90.
57
N.T. 91-93.
58
N.T. 94.
59
N.T. 94.
60
N.T 94.
61
8
62
committed a home invasion to your home on January 2009,” specifically stating “I am
63
the person” as opposed to “I am one of the people.”
Luz Soto, the mother of Nicholas Soto, testified that she had previously seen her
64
son and Defendant together. Ms. Soto further testified that her son had arrived home at
65
around midnight on January 5, 2009. David Ickler, a forensic investigator for the
66
Cumberland County District Attorney’s office who processed the scene testified that,
upon arriving at Mr. Basnet’s apartment following the incident, he used a “crimes code
67
imager” to look for fingerprints, but was unsuccessful in his attempts to collect any
68
fingerprints, hairs, or fibers.
Lower Allen Township Police Officer Michael Scarlotto testified that he arrived at
Mr. Basnet’s apartment at approximately 8:00 p.m. on January 5, 2009, pursuant to a
dispatch in response to the victim’s 911 call, which indicated that there were two suspects
69
involved, one being black and the other Hispanic, and both wearing dark clothing.
Officer Scarlotto testified that, upon the officer’s arrival, Mr. Basnet identified one of the
7071
individuals as Nick, at which time Officer Scarlotto went to Mr. Soto’s home, and was
N.T. 97.
62
See N.T. 97-98.
63
N.T. 112-13.
64
N.T. 118-19.
65
N.T. 123.
66
N.T. 124.
67
N.T. 125-26. Mr. Ickler testified that, after a preliminary sweep and having been advised that the
68
victim stated his assailants wore gloves, he did not continue his investigation. N.T. 125.
N.T. 127.
69
N.T. 131.
70
9
granted permission to perform a search of the residence, but was unable to find the items
72
reported stolen by Mr. Basnet.
On cross-examination, Officer Scarlotto testified that Mr. Soto originally denied
7374
any knowledge regarding the incident, and that Mr. Soto had an older brother who
75
owned a silver handgun, similar to the weapon allegedly used during the incident.
Officer Scarlotto further testified that he neither pursued Mr. Soto’s older brother as a
7677
suspect, nor performed any tests upon the brother’s handgun.
78
Defendant did not present any witnesses or exhibits.
At the conclusion of the evidentiary phase of the trial, and following argument, the
court granted a defense motion for judgment of acquittal as to Counts 8 and 9, but denied
79
the motion as it related to the remaining charges. In its charge to the jury, the court,
inter alia, provided the following instruction on accomplice testimony:
N.T. 134. Officer Scarlotto testified that when he arrived at Mr. Soto’s home in the evening of
71
January 5, 2009, Mr. Soto was not home. N.T. 139. Officer Scarlotto testified that he had engaged Luz
Soto in conversation, and that she granted the officers permission to search the home. N.T. 140.
N.T. 140.
72
N.T. 158.
73
N.T. 168. Mr. Soto’s older brother was 26 years old, matching the estimated age of the second
74
assailant reported by Mr. Basnet.
N.T. 164.
75
Officer Scarlotto testified that the whereabouts of Mr. Soto’s brother during the time of the incident
76
were known. N.T. 140.
N.T. 166, 176-77. Officer Scarlotto testified that he did not pursue an investigation on the brother’s
77
handgun partially as a result of his conclusion the weapon showed no signs of use during the
robbery, based upon a brief examination he had conducted. N.T. 176.
N.T. 181-82.
78
N.T. 181. The Commonwealth ultimately conceded that there was insufficient evidence to support
79
the charges at these counts, and agreed not to pursue the charges.
10
When a Commonwealth witness is an accomplice, his or her
testimony has to be judged by special precautionary rules.
Experience shows that an accomplice when caught may often try to
place the blame falsely on someone else. He or she may testify
falsely in the hope of obtaining fair treatment or for some corrupt or
wicked motive. On the other hand, an accomplice may be a
perfectly truthful witness. The special rules that I will give you are
meant to help you distinguish between truthful and false accomplice
testimony.
In view of the evidence of Mr. Soto’s criminal involvement, you
must regard him as an accomplice in the crimes charged and apply
[certain] special rules to his testimony. These are the special rules
that apply to accomplice testimony.
First, you should view the testimony of an accomplice with
disfavor because it comes from a corrupt and polluted source.
Second, you should examine the testimony of an accomplice closely
and accept it only with care and caution. Third, you should consider
whether the testimony of an accomplice is supported in whole or in
part by other evidence.
Accomplice testimony is more dependable if supported by
independent evidence. However, even if there is no independent,
supporting evidence, you may still find the defendant guilty solely
on the basis of an accomplice’s testimony if, after using the special
rules I just told you about, you are satisfied beyond a reasonable
doubt that the accomplice testified truthfully, and the defendant is
80
guilty.
After deliberations, the jury found Defendant guilty at Count 1 of Burglary, a
felony of the first degree, at Count 2 of Criminal Conspiracy to Commit Burglary, a
felony of the first degree, at Count 3 of Robbery, a felony of the first degree, at Count 4
of Robbery, a felony of the second degree, at Count 5 of Criminal Conspiracy to Commit
Robbery, a felony of the second degree, at Count 6 of Criminal Trespass, a felony of the
second degree, at Count 7 of Criminal Conspiracy To Commit Criminal Trespass, a
11
felony of the second degree, at Count 10 of Theft by Unlawful Taking or Disposition,
with the amount involved being $200.00 or more and/or the property having been taken
by threat, a misdemeanor of the first degree, at Count 11 of Criminal Conspiracy To
Commit Theft by Unlawful Taking or Disposition, with the amount involved being
$200.00 or more and/or the property having been taken by threat, a misdemeanor of the
first degree, at Count 12 of Terroristic Threats, a misdemeanor of the first degree, and
81
guilty at Count 14 of Simple Assault, a misdemeanor of the second degree.
Defendant was sentenced at Count 1 to make restitution in the amount of
$1,187.99 to Mr. Basnet and to undergo a period of imprisonment in a State Correctional
Institution of not less than 2½ years nor more than 5 years, at Count 2 to undergo a period
82
of imprisonment of not less than 1½ years nor more than 3 years, at Count 3 to undergo
a period of imprisonment of not less than 5 years nor more than 10 years, and at Count 5
83
to undergo a period of imprisonment of not less than 2 ½ years nor more than 5 years.
The other offenses were deemed to have merged for purposes of sentencing with offenses
N.T. 203-04.
80
N.T. 214-20; Order of Court, In Re: Jury Trial, March 11, 2010.
81
Order of Court, In Re: Amendment to Sentencing Order, June 9, 2010.
82
Count 6 was deemed to have merged for sentencing purposes with the charge at Count 1, Count 7
83
was deemed to have merged for sentencing purposes with the charge at Count 2, Counts 4, 10, 12,
and 14 were deemed to have merged for sentencing purposes with the charge at Count 3, Count 11
was deemed to have merged for sentencing purposes with the charge at Count 5. Order of Court, In
Re: Sentencing, May 18, 2010.
12
84
to which sentences were attached. All sentences were made to run concurrently with
85
each other.
As noted previously, Defendant’s appeal challenges the judgment of sentence on
the basis of sufficiency of the evidence presumably as it related to Defendant’s being a
86
perpetrator of the offenses.
DISCUSSION
Sufficiency of the Evidence. On a challenge to the sufficiency of the evidence in a
criminal case, the proper test is “whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner and drawing all proper inferences
favorable to the Commonwealth, the trier of fact could have determined all the elements
of the crime have been established beyond a reasonable doubt.” Commonwealth v.
O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290, quoting Commonwealth v.
Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995); Commonwealth v. Rakowski, 2010
PA Super 3, ¶3, 987 A.2d 1215, 1217. A guilty verdict is proper if the evidence presented
at trial is sufficient to allow the “fact finder to find every element of the crime charged
beyond a reasonable doubt.” Commonwealth v. Coleman, 2009 PA Super 229, ¶6, 984
A.2d 998, 1000.
A challenge to the sufficiency of the evidence does not implicate a weighing of the
evidence. Commonwealth v. Patterson, 2007 PA Super 404, ¶24, 940 A.2d 493, 500
Order of Court, In Re: Sentencing, May 18, 2010.
84
Order of Court, In Re: Sentencing, May 18, 2010.
85
Defendant’s Concise Statement of Errors Complained of on Appeal, filed July, 2, 2010.
86
13
citing Commonwealth v. Emler, 2006 PA Super 187, ¶7, 903 A.2d 1273, 1276-77. The
trier of fact, while passing upon the credibility of witnesses and the weight to be afforded
to the evidence produced, is “free to believe all, part or none of the evidence.”
Commonwealth v. Smith, 985 A.2d 886, 897 (Pa. 2009); Commonwealth v. Gibbs, 2009
PA Super 181, ¶11, 981 A.2d 274, 281. Additionally, facts and circumstances established
by the Commonwealth need not preclude every possibility of a defendant’s innocence.
Commonwealth v. Jones, 2008 PA Super 160, ¶3, 954 A.2d 1194, 1196.
Accomplice Testimony. Where parties in crime testify against each other, their
testimony must be recognized as coming from a corrupt source and therefore must be
subject to the closest scrutiny. Commonwealth v. Hudson, 489 Pa. 620, 629, 414 A.2d
1381, 1386 (1980); Commonwealth v. Todt, 318 Pa. Super. 55, 64, 464 A.2d 1226, 1230
(1983). Ultimately, the acceptance of an accomplice’s testimony as credible evidence is a
determination reserved solely for the trier of fact. See Commonwealth v. Jackson, 187 Pa.
Super. 2, 144 A.2d 249, 250 (1958); Commonwealth v. Ridgely, 243 Pa. Super. 397, 401,
365 A.2d 1283, 1286 (1976). When an accomplice implicates the defendant, the judge
should tell the jury that the accomplice is a corrupt and polluted source whose testimony
should be viewed with great caution. Commonwealth v. Rega, 593 Pa. 659, 689, 933 A.2d
997, 1014 (2007); Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385-86
(1980); Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Nevertheless, a
conviction may be sustained on the basis of the uncorroborated evidence of an
accomplice. Commonwealth v. Goldblum, 498 Pa. 455, 466, 447 A.2d 234, 240 (1982) (a
jury may convict on uncorroborated testimony of an accomplice) citing Commonwealth v.
14
Cristina, 481 Pa. 44, 51, 391 A.2d 1307, 1311 (1978); Commonwealth v. Tervalon, 463
Pa. 581, 345 A.2d 671 (1975) (while the testimony of an accomplice should be received
with caution and carefully scrutinized, standing alone it may nevertheless be sufficient to
find guilt beyond a reasonable doubt); Commonwealth v. Gonce, 320 Pa. Super. 19, 466
A.2d 1039 (1983); Commonwealth v. Todt, 318 Pa. Super. 55, 464 A.2d 1226 (1983);
Commonwealth v. Larew, 289 Pa. Super. 34, 38, 432 A.2d 1037, 1038-39 (1981)
(uncorroborated accomplice testimony may be sufficient to find guilt if scrutinized as
coming from corrupt source).
Application of Law to Facts. In the present case, the evidence produced by the
Commonwealth was sufficient to identify Defendant as a perpetrator of the crimes
charged. The Commonwealth presented evidence in the form of testimony from the
victim, who identified Nicholas Soto as one of his assailants and provided a description
of the second individual regarding those characteristics not covered by the individual’s
mask. Although Mr. Soto failed to implicate Defendant during his initial encounter with
the police, Mr. Soto testified at trial that he and Defendant committed the crimes
together. Furthermore, Mr. Soto’s failure to implicate Defendant at the outset was
consistent with his initial refusal to incriminate himself.
Mr. Soto’s cooperation in return for treatment as a juvenile offender does not
make his testimony insufficient to find Defendant guilty of the crimes charged. In this
matter, it is clear that two males robbed Mr. Basnet, but only one of them was identifiable
by the victim. While the plea arrangement was certainly an inducement for Mr. Soto to
identify his accomplice, there were no inducements by the Commonwealth for Mr. Soto
15
to falsely identify Defendant as his accomplice. There was no evidence that Mr. Soto and
Defendant had been enemies and, in fact, Luz Soto testified that Mr. Soto and Defendant
had been seen together as friends on numerous occasions.
Furthermore, the court provided an appropriate jury instruction in accordance with
the law on accomplice testimony. A trial court has wide discretion in phrasing its jury
instructions, and can choose its own words as long as the law is clearly, adequately, and
accurately presented to the jury for its consideration. When charging the jury, the trial
judge gave a specific corrupt source instruction, charging the jury to be particularly
cautious of Mr. Soto’s testimony, and make a particular determination as to his
motivations in testifying. Nonetheless, the jury found Mr. Soto’s testimony to be credible
as to the identity of his accomplice.
For the foregoing reasons, it is believed that the judgment of sentence appealed
from was properly entered.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Mathew P. Smith, Esq.
Chief Deputy District Attorney
Charles P. Mackin, Esq.
Senior Assistant Public Defender
16