Appeal from order of Superior Court, Oct. T., 1969, No. 1125, affirming order and judgment of sentence of Court of Common Pleas of Lycoming County, Feb. T., 1968, No. 89, in case of Commonwealth of Pennsylvania v. Lee Port Johnson, Jr.
Don M. Larrabee, II, for appellant.
Allen E. Ertel, District Attorney, submitted a brief for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case.
Appellant was found guilty by a jury of burglary and larceny and subsequent to denial of his new trial motions he was sentenced to five years' probation. An appeal to the Superior Court resulted in an affirmance of the judgment of sentence by an equally divided court with Judge Spaulding filing a dissenting opinion in which Judges Montgomery and Hoffman joined. Commonwealth v. Johnson, 216 Pa. Superior Ct. 245, 263 A.2d 784 (1970). We granted allocatur.
The question at issue relates to references being made to a lie detector test. At trial, one Robert Miles,
who had pleaded guilty to the crimes charged and was awaiting sentence at the time of appellant's trial, testified as a witness for the Commonwealth. He testified that he and appellant had committed the burglary together. Three of Miles' fellow prisoners testified for the defense to the effect that when Miles had first discussed the case with them, he had said that he committed the burglary alone. They further testified that about a week later, after Miles had spent considerable time with the police, his story changed to include the appellant. They further testified that Miles talked about "getting back" at appellant and that Miles appeared to be receiving special treatment from the police.
In rebuttal, the Commonwealth, in attempting to rehabilitate Miles, was permitted to refer to a lie detector test. The testimony was as follows: "Q. Now sir, you heard several witnesses who were also prisoners in Clinton County Prison when you were there testify yesterday that while you were there, you stated you committed these burglaries by yourself? A. Yes sir, I made them. Q. Did you ever make those statements? A. Yes, I made the statements up until I was taken to the Lock Haven Police Department. . . . Q. Now somewhere along the line you changed your story, is that correct? A. Yes, sir. Q. You had indicated as you said before that Johnson was with you? A. Yes, sir. Q. Where were you when you first changed your story? A. I was at the Mayor's Office in Lock Haven sitting with the police in the municipal building in Lock Haven. Q. And what was the occasion for your being there in his office? A. I was given a lie detector test. Q. You were given a lie detector test? A. Yes sir, I was. Q. After you were given the lie detector test, did you change your story? A. Yes, sir. They gave me three of them."
We are in agreement with the position of the dissenting judges in the Superior Court that "references to the lie detector test should not have been permitted, because it unavoidably raised an inadmissible inference of the test result. See Com. ex rel. Hunter v. Banmiller, 194 Pa. Superior Ct. 448, 450-51, 169 A.2d 347, 348 (1961)." (Page 247.)
The Superior Court dissenters further aptly stated that: "The reference here went much further than showing state of mind as to guilt or innocence in relation to a hypothetical test; it raised the inference that an actual test certified the truth of testimony implicating the accused. The inference carried the weight of scientific evidence while in fact that evidence was unreliable. The same ...