dissenting.
In this case, the trial judge, having found appellant guilty of aggravated assault and related charges on the basis of circumstantial evidence, was presented with after-discovered evidence of sufficient importance and trustworthiness to cause the judge to believe that appellant may have been innocent of the charges, and hence to order a new trial. Through mischaracterization of the record, the majority distorts the legitimate doubts and laudable concern of the trial judge — the original fact finder — about the correctness of the verdict and ignores the impropriety of the Commonwealth’s refusal to aid the trial court in its pursuit of justice by granting immunity to appellant’s co-indictee, who has already been convicted. The affirmance of a judgment of sentence which may well have been erroneously imposed compels dissent.
In finding appellant guilty at the conclusion of a two-day bench trial, the trial judge, the Honorable Lois G. Forer, found as a fact that neither of the Commonwealth’s eyewitnesses had been able to identify appellant by his face. The judge declined to make a finding as to whether or not Commonwealth witness James Lark had in fact heard appellant admit his participation in the crimes charged, stating that she would “put ... aside Mr. Lark’s testimony as to the admission” and base her verdict upon a finding “that *633the person arrested in the dark red jacket and cap by Officer Carr, is the person identified by everyone as wearing the jacket and cap and engaging in this incident.” (N.T. 161-163.) Three months after the verdict, appellant’s counsel, Assistant Public Defender Patricia Pierce, Esquire, filed a supplemental post-verdict motion stating that she had recently spoken with Franklin Green, Esquire, privately retained counsel for appellant’s co-indictee, Kenneth Hill (who was tried and convicted separately), and had been informed that, prior to Hill’s trial, Hill had admitted to counsel his involvement in the shooting incident and, as part of the admission, had stated that appellant was in no way involved in the shooting. The motion further stated that, because Hill had denied involvement in the shooting at his own trial, Hill’s testimony as to his pre-trial conversation with his counsel could subject him to a charge of perjury. Accordingly the motion asked that Hill be granted limited immunity with regard to his testimony at the hearing on after-discovered evidence.
At the hearing, Hill’s counsel did not deny that he had communicated with appellant’s counsel or that Hill had made a statement to him exculpating appellant, but he refused to discuss the contents of the statement on the ground that it was a privileged communication between attorney and client. Hill’s counsel further stated that if his client were called to testify, he would invoke his Fifth Amendment privilege against self incrimination.
The trial judge then requested the assistant district attorney to ask her superiors to grant immunity to Hill, noting that appellant had been convicted on the basis of circumstantial evidence and stating that she was “very anxious to have the testimony of Mr. Hill ... in the interests of justice---- The identification [was] by way of clothing and so forth, and if there was someone who admittedly was part of the group that committed these offenses, then this young man [ (appellant) ] ought to be freed.”
At a second hearing, the assistant district attorney informed the court that the Commonwealth refused to grant *634immunity to Hill because Hill had denied his involvement in the crime at his own trial, and either that denial or Hill’s proffered testimony on the motion would be false. The assistant district attorney further stated that it was the Commonwealth’s position that “immunity is not the proper remedy here; that immunity is used by the prosecution to aid the prosecution.”
The court responded:
“Well, the prosecution may put the Court in the position of granting a new trial because there is probable cause to believe on the basis of Mr. Green that there may be evidence exonerating this defendant, and under our law, better let a guilty person go free than one innocent be convicted. That’s the law.”
The Commonwealth refused to reconsider and the court granted appellant a new trial.
From the foregoing facts, it should be apparent that the real issue in this case is not whether co-indictee Kenneth Hill’s statement is admissible as “double hearsay” or whether a court may grant a defense witness immunity over prosecutorial objection. As the trial judge correctly observed, the real issue is whether an innocent person has been wrongly convicted. Observing that “post-verdict accomplice testimony should be considered with caution,” the majority dismisses Hill’s statement that appellant was not involved in the shooting as “clearly untrustworthy and unreliable, bordering on charade.” The majority neglects to mention, however, that appellant’s motion describes Hill’s statement as having been made to counsel prior to trial, and not, as the majority implies, following conviction. When Hill’s statement exculpating appellant is viewed in its proper context, the majority’s attack upon the credibility of that statement is unfounded. Basic common sense compels the conclusion that Hill’s pretrial admission of his guilt to his counsel with its exculpation of appellant is inherently more credible than Hill’s subsequent, self-serving testimony at his trial that he was not involved in the shooting inci*635dent — testimony which was necessarily found incredible through the verdict of guilty.
The credibility of Franklin Green, Hill’s counsel, cannot seriously be questioned. Confronted with a pretrial statement from his client admitting guilt and exonerating appellant, Mr. Green was placed, as the trial court observed,
“in an unenviable dilemma. He has information that a convicted person is probably innocent. As an officer of the Court it would be his duty to come forward with such information unless it was privileged or the revelation of the information would conflict with some other obligation. Canon 4 of the Canons of Professional Responsibility states: ‘A lawyer should Preserve the Confidences and Secrets of a Client.’ Obviously Mr. Green cannot testify as to what his client told him. Under these circumstances, he took what was probably the only course available to him. He told Ms. Pierce, Johnny Scott’s lawyer, so that she could take appropriate action on behalf of her client.”
What reason, other than the prevention of manifest injustice, could Mr. Green have possibly had for revealing his client’s privileged communication? The majority does not say. Nor does the majority provide any basis, for doubting the veracity of appellant’s counsel.*
As there is no reason to doubt that Hill’s counsel and appellant’s counsel acted in good faith, and every reason to believe that Hill’s pretrial, privileged communication to his attorney implicating himself and exonerating appellant is more credible than his self-serving trial testimony, the only question remaining is the availability of Hill’s testimony to *636appellant on retrial. The Commonwealth’s argument that courts have no power to compel a grant of immunity to a defense witness completely ignores the crucial question of why the Commonwealth, on this record, would refuse to grant Hill immunity in the first place. Hill has already been convicted for his part in the crimes charged. There is no record of his ever having appealed from that conviction. Assuming that Hill would testify as set forth in appellant’s motion, all that the Commonwealth would sacrifice by granting limited immunity to Hill is the opportunity to prosecute him for committing perjury at his first trial in 1979, an opportunity which has already existed for four years but which the Commonwealth has not chosen to seize. And, of course, if Hill were to stand by his trial testimony, nothing would be lost at all.
As this Court has repeatedly stated, “[t]he duty of the prosecutor is to seek justice, not merely to convict.” Commonwealth v. Starks, 479 Pa. 51, 56, 387 A.2d 829, 831 (1978), quoting ABA Standards Relating to the Prosecution Function § 1.1(c). Accord, e.g., Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975); Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971). In keeping with this duty, the Commonwealth clearly should have agreed — and should now agree — to grant limited immunity to Kenneth Hill so that the possibility that appellant has been wrongly convicted may be fully explored. Where, as here, the trial court is satisfied that an innocent person may have been improperly convicted, due process requires that a limited grant of immunity be entered. See Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980).
The order of the Superior Court should be reversed and the order of the trial court granting appellant a new trial reinstated.
FLAHERTY and ZAPPALA, JJ., join in this dissenting opinion.The majority’s references to the "unsworn” nature of this motion are misleading. Although the motion was signed by Ms. Pierce’s superior, it was identified at the hearing on the proffered after-discovered evidence as having been prepared by Ms. Pierce, who also argued the motion to the court. Additionally, the trial court explicitly found that “the statement of Ms. Pierce is reliable” and that “no useful purpose would be served by requiring Ms. Pierce to repeat her presentation in the form of an affidavit.”