Appeal from order of Superior Court, Oct. T., 1972, No. 836, affirming judgment of sentence of Court of Common Pleas of Berks County, No. 186 of 1971, in case of Commonwealth of Pennsylvania v. Louis Toth.
J. A. Boccabella, with him James M. Potter, and Liever, Hyman and Potter, for appellant.
Grant E. Wesner, Deputy District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.
Jones, C.j., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.
The appellant, Louis Toth, was convicted by a jury of burglary, larceny, receiving stolen goods and conspiracy. Post-trial motions were denied and a prison sentence was imposed. On appeal, the Superior Court affirmed the judgment by a "per curiam" order. Judge Hoffman filed a dissenting opinion in which Judge
Packel joined. See 223 Pa. Superior Ct. 354, 297 A.2d 498 (1972). We granted allocatur and now reverse.*fn1
The pertinent facts are these:
The crimes for which appellant was tried stemmed from the burglary of a hotel in Berks County. The Commonwealth's case was established primarily through the testimony of three individuals who admitted committing the burglary and stated appellant participated. Toth denied participating in the burglary and attempted to show that the testimony of the three Commonwealth witnesses who implicated him was fabricated to "get him," and in order for them to receive lenient treatment from the district attorney. To sustain this position, appellant called on Thomas McDonald to testify he had been confined in the Chester County prison at the same time as two of these witnesses, and heard them say they intended to implicate the appellant in the hotel and other burglaries in order to save themselves. The district attorney objected to the testimony as hearsay, but the defense counsel correctly counterargued the testimony was offered, not for the truth of the matter, but to prove the statement was made. The trial judge admitted the testimony.
During his closing argument to the jury, the district attorney stated: "In addition, McDonald's testimony was very interesting. I objected because he was testifying as to all these things that Barlow and Taggart said in response to the questions asked by Mr. Potter [defense counsel]. Then Mr. Potter, as I recall, said, 'Well, we're not entering this for the truth of it.' In other words, Mr. Potter said that they weren't putting this in because it was true. I had no idea why it was
put in, but apparently Mr. Potter didn't believe it." Defense counsel immediately made a motion for a mistrial, which the trial judge refused to grant.*fn2 The district attorney's remarks were clearly ...