Commonwealth v. Johnson

• Decision Date: 07 January 1971
• Citation: 441 Pa. 237,272 A.2d 467
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Lee Port JOHNSON, Jr., Appellant.
• Court: Pennsylvania Supreme Court

272 A.2d 467

441 Pa. 237

COMMONWEALTH of Pennsylvania, Appellee, v. Lee Port JOHNSON, Jr., Appellant.

Supreme Court of Pennsylvania.

January 7, 1971.

Don M. Larrabee, II, Williamsport, for appellant.

Allen E. Ertel, Dist. Atty., William S. Kieser, 2nd Asst. Dist Atty., Williamsport, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, and POMEROY, JJ.

OPINION OF THE COURT

O'BRIEN Justice.

Appellant was found guilty by a jury of burglary and larceny and subsequent to denial of his new trial motions he was sentenced to five years' probation. An appeal to the Superior Court resulted in an affirmance of the judgment of sentence by an equally divided court with Judge Spaulding filing a dissenting opinion in which Judges Montgomery and Hoffman joined. Commonwealth v. Johnson, 216 Pa.Super. 245 263 A.2d 773 (1970). We granted allocatur.

The question at issue relates to references being made to a lie detector test. At trial, one Robert Miles, who had pleaded guilty to the crimes charged and was awaiting sentence at the time of appellant's trial, testified as a witness for the Commonwealth. He testified that he and appellant had committed the burglary together. Three of Miles' fellow prisoners testified for the defense to the effect that when Miles had first discussed the case with them, he had said that he committed the burglary alone. They further testified that about a week later, after Miles had spent considerable time with the police, his story changed to include the appellant. They further testified that Miles talked about 'getting back' at appellant and that Miles appeared to be receiving special treatment from the police.

In rebuttal the Commonwealth, in attempting to rehabilitate Miles, was permitted to refer to a lie detector test. The testimony was as follows:

'Q. Now sir, you heard several witnesses who were also prisoners in Clinton County Prison when you were there testify yesterday that while you were there, you stated you committed these burglaries by yourself?

'A. Yes sir, I made them.

'Q. Did you ever make those statements?

'A. Yes, I made the statements up until I was taken to the Lock Haven Police Department. * * *

'Q. Now somewhere along the line you changed your story, is that correct?

'A. Yes, sir.

'Q. You had indicated as you said before that Johnson was with you?

'A. Yes, sir.

'Q. Where were you when you first changed your story?

'A. I was at the Mayor's Office in Lock Haven sitting with the police in the municipal building in Lock Haven.

'Q. And what was the occasion for your being there in his office? 'A. I was given a lie detector test.

'Q. You were given a lie detector test?

'A. Yes, sir, I was.

'Q. After you were given the lie detector test, did you change your story?

'A. Yes, sir. They gave me three of them.'

We are in agreement with the position of the dissenting judgment in the Superior Court that 'reference to the lie detector test should not have been permitted, because it unavoidably raised an inadmissible inference of the test result. See Com. ex rel. Hunter v. Banmiller, 194 Pa.Super. 448, 450--451, 169 A.2d 347, 348 (1961).' (Page 247, 263 A.2d page 774.)

The Superior Court dissenters further aptly stated that:

'The reference here went much further than showing state of mind as to guilt or innocence in relation to a hypothetical test; it raised the inference that an actual test certified the truth of testimony implicating the accused. The inference carried the weight of scientific evidence while in fact that evidence was unreliable. The same considerations that require excluding express discussion of the test result require excluding the instant reference.'

In DeVito v. Civil Service Commission, 404 Pa. 354, 360, 172 A.2d 161, 164 (1961), we said:

'We note further that the scientific accuracy or infallibility of the lie detector has not been recognized by our Court. The use of such a test is judicially unacceptable both in this Commonwealth and by the general current of decision throughout the United States. * * *'

It is true that in DeVito, as well as the other Pennsylvania cases involving this matter, the question concerned either the accuracy of lie detector evidence or the willingness or refusal of an accused to submit to such a test. In all such instances we have held consistently that the evidence is inadmissible. The reasons which dictated those conclusions also dictate the inadmissibility of the reference to the fact of the taking of a lie detector test in the instant case. ^[*]

The Commonwealth argues that the attack upon Miles' credibility embodied in the introduction of evidence that police favors encouraged Miles to implicate Johnson created a serious situation for the Commonwealth. We have no doubt that the testimony of Miles' jailmates created a serious situation for the Commonwealth. In its brief the Commonwealth says:

'To allow the defense to fabricate a story that the witness had been improperly induced by the police to implicate the defendant without permitting the state to rebut this defense would seriously hamper the prosecution. The state should, be allowed to show in rebuttal that, in fact Miles changed his story after undergoing a...