Burton A. Rose, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Pomeroy, J., filed a dissenting opinion.
On November 19, 1974, a jury found appellant William Russell guilty of murder of the first degree, aggravated robbery, burglary, and conspiracy in connection with the shooting death of William Lackman and John Seely and robbery of the residence of Dr. Frank Washick.*fn1 The trial court on October 21, 1975 denied appellant's post-verdict motions and sentenced appellant to life imprisonment on the murder conviction and both concurrent and consecutive sentences on the other convictions. Appellant contends that the trial court improperly instructed the jury that in evaluating the credibility of a witness who testifies favorably for the accused, but who was previously convicted and sentenced for the crime in question, the jury should view the exculpatory testimony "with disfavor because it comes from a corrupt and polluted source," should "accept [the testimony] only with caution and care," and should consider whether the testimony is "supported by independent evidence."*fn2 We agree, reverse judgments of sentence, and grant appellant a new trial.*fn3
The Commonwealth asserts that appellant, though not present during the commission of the crime, organized and planned it. Joseph Grissell testified for the Commonwealth that he was supposed to act as a lookout for the perpetrators, but withdrew from the enterprise. Grissell testified that he was present when appellant organized the crime. Adolph Schwartz, one of the perpetrators, testified for appellant that he did not know appellant and that appellant was not involved. Appellant also testified.
The trial court instructed the jury that in evaluating the testimony of Grissell, the prosecution's witness, it should be aware that an accomplice "may falsely blame others," and that his testimony should be examined closely. The court also charged that Grissell's testimony "standing alone is sufficient evidence on which to find the defendant guilty if, after following the foregoing principles [concerning accomplices], you are convinced beyond a reasonable doubt that he testified truthfully. . . ."
The court then charged the jury concerning the testimony of Schwartz, appellant's witness: "Now as to him, you also have to apply the same precautions [as for Grissell] in determining the credibility of his testimony. Briefly, to repeat what I have said for the other accomplice, in deciding whether or not to believe Schwartz's testimony, you should be guided by the same principles." The trial court continued:
"The testimony of Adolph Schwartz should be looked upon with disfavor because it comes from a corrupt and polluted source.
Two: You should examine his testimony closely and accept it only with caution and care, which is exactly the same thing I said for ...