No. 986 October Term 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1282, 1284, 1285, April Term 1977.
David Cohen, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Van der Voort, Wieand*fn* and Lipez, JJ. Van der Voort, J., dissents.
[ 274 Pa. Super. Page 527]
Appellant was convicted in a jury trial of involuntary deviate sexual intercourse,*fn1 criminal conspiracy*fn2 and simple assault.*fn3 Post-verdict motions were filed and denied. Because we agree with appellant that the lower court erred in permitting the Commonwealth to rehabilitate a witness by reference to his refusal to take a lie detector test, we reverse and grant a new trial.*fn4
[ 274 Pa. Super. Page 528]
Appellant was tried for taking part in a gang rape in the prison in which he was serving a previous sentence. During the investigation on the morning following the incident, one of the suspects had given a statement to a detective that on the previous night he had not been to the victim's cell, where the attack took place, and had not bothered the victim in any way. He concluded the statement by saying, "And I am willing to take a lie detector test." Later that morning, when offered the opportunity to take a lie detector test, the suspect refused. After more questioning, the suspect gave another statement, confessing his part in the crime, and implicating appellant as well as himself.
The suspect became a witness for the prosecution at appellant's trial, and his testimony was consonant with his latter statement, implicating himself, along with the appellant. On cross-examination, defense counsel introduced the witness's prior inconsistent statement, that he had not been to the victim's cell or bothered the victim at all on the night of the attack. Defense counsel left out the concluding sentence, "And I am willing to take a lie detector test." The prosecutor insisted that this sentence be read along with the rest of the statement. Over defense counsel's objection, the trial judge ordered the concluding sentence to be read too.
On redirect examination, in order to rehabilitate its witness from the inconsistent statement, the prosecutor introduced the consonant statement, in which the witness had implicated himself, along with implicating appellant. Over defense counsel's objection, the court permitted the prosecution to bring out the fact that this consonant statement had been given to the police after the witness had refused to take the lie detector test concerning what he had said in the prior inconsistent statement.
The Commonwealth contends that it is only the results of lie detector tests which are inadmissible, and therefore it was not error to admit testimony that the witness had
[ 274 Pa. Super. Page 529]
refused to take a lie detector test. This contention has been repeatedly rejected by a majority of our Supreme Court, stating, ". . . it is obvious that neither a professed willingness nor a refusal to submit to such a test should be admitted." Commonwealth v. Johnson, 441 Pa. 237, 240, n.*, 272 A.2d 467, 469, n.* ...