No. 365 January Term, 1978, Appeal from Judgment of Superior Court of October 26, 1977, October Term, 1976, No. 1589, affirming judgment of sentence of the Common Pleas Court of Philadelphia, Trial Division, Criminal Section, August Term, 1974, Numbers 277 to 281.
Mary Alice Duffy, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Division, Asst. Dist. Atty., Kenneth S. Gallant, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty, J., files a dissenting opinion in which Larsen and Kauffman, JJ., join.
The single question presented on this appeal is whether the trial court properly instructed the jury that the exculpatory testimony of a defense witness who admits participation in the crime must be viewed "with disfavor because it comes from a corrupt and polluted source." We have previously held, in Commonwealth v. Russell, 477 Pa. 147, 383 A.2d 866 (1978), that the instruction may not be given. We adhere to the rule of Russell, reverse appellant Ronald Jones' conviction and remand for a new trial.*fn*
This case stems from the armed robbery of a Philadelphia hardware store. At trial, the Commonwealth called Mr. Kessler, the proprietor of the store and an eyewitness to the crime. He testified that on July 20, 1974, a man later identified as Jerome Gethers entered the hardware store, looked at some mirrors and then departed. Soon after Mr. Kessler closed the store, Gethers reappeared and gained entrance by claiming that he dropped something while inside. When the door was reopened, Gethers and two other men entered the store. One of the men carried a shotgun wrapped in newspaper.
As the men entered the store, a shot was fired. Kessler drew, but dropped a .38 caliber handgun he carried at his waist and ran to the back of the store. Although the men fired several times, no bullet struck Kessler. Kessler left the store through a back exit and telephoned police. During this time, the three men ran out the front door, got in their car, and drove away.
At trial, appellant presented the testimony of Jerome Gethers, a participant in the crime who had already pled guilty to the charges. This witness stated that appellant had not participated in the robbery. Gethers testified that appellant was given a ride by the fleeing robbers just before police stopped their car. When called to testify, appellant corroborated this account of the event.
At the close of trial, the court, over appellant's timely objection, instructed that:
"in deciding whether or not to believe or to accept the testimony of Mr. Gethers you should be guided by the following principles. First of all, the testimony of Mr. Gethers should be looked upon with disfavor because it comes from a corrupt and polluted source. Secondly, you should examine Mr. Gethers' testimony closely and accept it only with caution and with care. Thirdly, you should consider whether or not his testimony is supported in whole or in part by other ...