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.
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.
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.
"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 ...