Biggs, Van Dusen and Aldisert, Circuit Judges.
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (February 24, 1972), holds that when the reliability of a witness may be determinative of guilt or innocence the failure of the prosecution to correct false evidence of that witness is an error of due process dimension. This appeal by Pennsylvania from the grant of a writ of habeas corpus based on alleged false testimony by a prosecution witness in a state proceeding requires us to decide two questions:
1. Was there false evidence in the context of Giglio and the seminal case of Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959)?
2. If so, could this false testimony "in any reasonable likelihood" have affected the judgment of the fact finder, Giglio, supra, 405 U.S. at 154, 92 S. Ct. at 766?
An affirmative answer to both these questions would require that the appeal be denied.
On February 1, 1966, Joseph Charles, then 16 years of age, and indicted for robbery, conspiracy, aggravated assault and battery, and rape, changed his plea from not guilty to guilty before Judge Raymond Pace Alexander. The following colloquy transpired:
MR. SPRAGUE (D.A.): That, sir, would summarize in this plea of guilty the testimony that the Commonwealth desires to present. I have been advised that since this proceeding started, as Your Honor heard, no offer, no deal or commitment of any sort was offered to this defendant, and the Commonwealth was ready to proceed to trial at this time.
I have been advised that the defendant now desires to cooperate with the Commonwealth and to testify for the Commonwealth, at the same time reiterating that he will have no deal or commitment. And I would ask at this time that sentence be deferred.
THE COURT: I would like to ask, has he named or have you been able to ascertain the identities of the other young men in this?
MR. SPRAGUE: May I say that other persons are under arrest and are awaiting trial. I have told counsel and the defendant if the Court sees fit to defer sentence, I am going to have Mr. Alessandroni and Detective Winchester speak with the defendant and find out the extent of his testimony and his availability to the Commonwealth.
THE COURT: Let him stand up at the bar ...