decided: June 28, 1989.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
JAMES NEELY, APPELLANT
Appeal from the Judgment of the Superior Court, Entered on March 28, 1988, At No. 2791 Phil., 1985, Affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Entered at April Term, 1984 at Nos. 2709, 2710.
Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Nix, C.j., did not participate in the consideration or decision of this matter. Flaherty, J., filed a dissenting opinion.
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OPINION OF THE COURT
The issue presented in this case is whether the trial court erred in refusing to instruct the jury that evidence of good character (reputation) may, in and of itself, (by itself or alone) create a reasonable doubt of guilt and, thus, require a verdict of not guilty.
James Neely, appellant, was convicted by a jury of recklessly endangering another person (18 Pa.C.S.A. § 2705) and possessing an instrument of crime (18 Pa.C.S.A. § 907). At trial Neely called as character witnesses, Mr. Gregory A. Coleman, Chief of Staff of the Philadelphia City Council and Mr. Bernard Brown, Recreation Supervisor of the Philadelphia Department of Recreation. These two witnesses attested to Neely's excellent reputation for being a peaceful and law abiding citizen.
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At the conclusion of the trial, Neely's counsel requested a jury instruction in accordance with the Pennsylvania Suggested Standard Jury Instructions that "evidence of good character may, by itself, raise a reasonable doubt of guilt and justify a verdict of not guilty".*fn1 The trial judge refused to give this specific charge and, instead, only instructed the jury that "evidence of good character is material and essential testimony in determining the innocence of the defendant". Notes of Testimony (N.T.) 7/25/89 at p. 598. When defense counsel, displeased with the instruction on character evidence given by the court, requested a more specific charge, the trial judge refused stating: "I am trying to change the law of Parks, I think it's wrong, so you have an automatic exception to that". (N.T.) 7/25/89 at p. 606.
Post-verdict motions were denied by the trial court which noted that the case provided it with "a long-overdue opportunity to urge upon our appellate courts that Pennsylvania law on the evidentiary weight given to reputation testimony in cases such as this one is both unsound as well as unjustified and must be repudiated". Trial Court Op. at p. 7. The Superior Court, in reviewing the case en banc, affirmed the judgment of sentence. Commonwealth v. Neely, 372 Pa. Super. 519, 539 A.2d 1317 (1988). We granted allocatur and we now reverse.
In Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607, (1981) this court, in a unanimous opinion, noted that "[a] defendant is entitled to a charge that character evidence alone may be sufficient to raise a reasonable doubt and justify an acquittal of the charges." Id., 496 Pa. at 195, 436 A.2d at 611 fn. 1. In Scott this court reaffirmed our position that such a charge was as imperative in criminal trials in 1981 as it had been in earlier cases of this court.
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"Good name in man and woman, dear my lord, Is the immediate jewel of their souls . . ." Shakespeare, Othello, Act iii, sc. 3, ln. 155; "A good name is a second life, and the groundwork of eternal existence." Bhascara Acharya, Lilawati (Longfellow, Kavanaugh ch. 4.); "Take away my good name and take away my life." Thomas Fuller, Gnomologia No. 4306; "Character is destiny." Heraclitus (500 B.C.).
Other authors and luminaries teach us that reputation is virtually immutable:
A great character, founded on the living rock of principle, is, in fact, not a solitary phenomenon, to be at once perceived, limited, and described. It is a dispensation of providence, designed to have not merely an immediate, but a continuous, progressive, and never-ending agency. It survives that man who possessed it: survives his age, -- perhaps his country, his language. Edward Everett, Speech: The Youth of Washington, July 4, 1835;
"If you hear a mountain has moved, believe; but if you hear that a man has changed his character, believe it not." Mohammedan Proverb.
Additionally, inspired writings show us that a good character/reputation ensures trustworthiness: "A good character carries with it the highest power of causing a thing to be believed." Idem, Rhetoric ; "Put more trust in nobility of character than in oath." Solon, Dioenes Loertius, sec. 16; "Reputation is a hallmark: it can remove doubt from pure silver . . ." Mark Twain (from an unmailed letter dated 1886); "Fame is a vapor, popularity an accident, riches takes wings, those who cheer today may curse tomorrow, only one thing endures -- character." Horace Greely.
In this case the trial court candidly admitted both on the record and in its opinion that it was attempting to change the law regarding reputation evidence. That court was wrong when it characterized our courts as having "elevated reputation evidence to undeserved heights". Trial Court Op. at p. 7. Pennsylvania case law since the turn of the century coupled with a historical view of the importance of
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"reputation" supports our high regard for the value of reputation evidence and our view that it is not "mere make weight, thrown in to assist in the production of a result" evidence. Cleary at 82, 19 A. at 1019. Clearly then, both of the lower courts erred in ignoring prior precedent of this court.*fn2 Often a person takes a lifetime to build his or her reputation and when the dark clouds of life gather, one's reputation may be all that one has to ward off the impending downpour and at that moment it may be the only beacon of truth -- truth is reputation's reward. A criminal defendant must receive a jury charge that evidence of good character (reputation) may, in and of itself, (by itself or alone) create a reasonable doubt of guilt and, thus, require a verdict of not guilty.
Accordingly, the decision of the Superior Court is reversed and a new trial is ordered.
Accordingly, the decision of the Superior Court is reversed and a new trial is ordered.
FLAHERTY, Justice, dissenting.
While I have no disagreement with the majority's peroration on the importance of one's reputation, I see little need to make that point by resort to a book of famous quotations, and I fail altogether to see what relevance it has to the question in the case: viz., the correctness of the instruction given to the jury.
The trial court's charge on character, which the majority chooses not to recite, is as follows:
Evidence of good character is very important testimony, because the law says that when a person has a prior good reputation in the community, that person is not
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likely to commit a crime that's against that person's nature. Evidence of good character is material and essential testimony in determining the guilt or innocence of the defendant.
This kind of testimony as to the defendant's good character is not to be made light of. It's not a mere makeweight thrown in to fill out the case or fill in a gap. It's affirmative, substantive, testimony to be weighed and considered by the jury in connection with all the other evidence in the case as bearing upon the question of whether or not the Commonwealth has or has not established the guilt of the defendant as he stands charged beyond a reasonable doubt.
It is difficult to see where this charge is defective, for, as the Commonwealth points out, it accurately states that character evidence is important substantive evidence, like any other evidence, and is neither inferior nor superior to any other type of evidence; and also, it correctly states that character evidence must be considered with all the other evidence in one overall inquiry on reasonable doubt.
I agree with the Commonwealth that the "of itself" charge is fundamentally misleading because it suggests that character evidence, unlike other types of evidence, creates a reasonable doubt in a manner different from all other evidence. Insofar as that misconception is, in fact, promoted, reputation evidence usurps the jury's function by suggesting what weight to give a particular type of evidence, thereby encouraging the jury to ignore all other evidence and to give reputation evidence what the English call "pride of place."
While some of this Court's past cases have approved of the use of the "of itself" charge, only one case can be read as requiring its use, and that case treats the issue in a one-sentence footnote which is dictum. See Commonwealth v. Scott, 496 Pa. 188, 195 n. 1, 436 A.2d 607, 611 n. 1 (1981).*fn1 Of the thirty-one states which have considered the
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question, only one state has required a charge similar to that at issue here; the remaining states favored a charge similar to that given by the trial court in which character evidence is considered along with all other evidence.
It simply makes no sense to instruct a jury, in effect, that its task is divided into two steps in which it first must consider whether the defendant's evidence of good reputation creates a reasonable doubt in the case, and then if it does not, consider the rest of the evidence, both of the defense and the prosecution. Instead, reputation evidence should be treated like any other evidence, one of many considerations in a one-step process of determining guilt or innocence. The trial court properly instructed the jury and should be affirmed.