Commonwealth ex rel. Shadd, Appellant, v. Myers.
Supreme Court of Pennsylvania
October 7, 1966
reargument refused November 7, 1966
423 Pa. 82 | 223 A.2d 296
In such circumstances, we conclude that the court below abused its discretion in refusing to allow the amendment, and its action must be reversed.
Order reversed, and case remanded to the court below for further proceedings consistent herewith.
Mr. Justice ROBERTS concurs in the result.
termination of every action. . . . The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”
David C. Harrison, for appellant.
John A. McMenamin, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.
OPINION BY MR. JUSTICE EAGEN, October 7, 1966:
On May 19, 1960, the appellant, Ronald Shadd, was convicted by a jury of murder in the first degree and sentence was fixed at life imprisonment. Admittedly, throughout the proceedings, Shadd was rеpresented by very competent court-appointed counsel. A motion for a new trial was duly filed and later withdrawn. Sentence was then imposed in accordance with the jury‘s verdict. No appeal from the judgment was filed.
In October 1965, Shadd instituted an action in habeas corpus which the court below dismissed. An appeal from that order is now before us.
In this collateral attack upon his conviction, sentence and confinement, Shadd‘s prime contention is, that constitutionally tainted evidence was improperly admitted against him over objection at trial which cоnstituted a denial of due process.
The challenged evidence, which it is now asserted was received at trial in violation of Shadd‘s constitutional rights, consisted of testimony elicited from police witnesses, which may be summarized as follows:
During questioning, Felder made oral statements to the police, which were typеwriter recorded, wherein he stated that he and Shadd committed the burglary and that he (Felder) held Wahl while Shadd beat him over the head with a rock. Shadd was then confronted with Felder in the presence of police investigating officers. One of the latter informed Shadd in detailed fashion of Feldеr‘s admissions and accusations. Shadd was asked if he had anything to say. He remained mute and made no denial.
This testimony was admitted in evidence as proof of a tacit acquiescence on the part of Shadd in the truth of Felder‘s statements. Pennsylvania has long adhered to the rule of evidence that when a statement made within the hearing and in the presence of a person (except in judicial proceedings) is incriminating in character and naturally calls for a denial, but is not challenged by the accused despite full opportunity and liberty to speak, the statement and the fact of his failure to deny are proper evidence of an implied admission of the truth of the accusatory statement. See, Commonwealth v. Vento, 410 Pa. 350, 189 A. 2d 161 (1963); Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A. 2d 527 (1959); Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464 (1955); Commonwealth v. Shupp, 365 Pa. 439, 75 A. 2d 587 (1950); Commonwealth v. Vallone, 347 Pa. 419, 32 A. 2d 889 (1943); Commonwealth v. Aston (No. 2), 227 Pa. 112, 75 A. 1019 (1910); and, Ettinger v. Commonwealth, 98 Pa. 338 (1881).1
Johnson v. New Jersey, 384 U. S. 719 (1966), clearly ruled that the new constitutional standards governing in-custody police interrogation of individuals accused of crime, еnunciated in Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, supra, do not require retroactive application. While the Court did not specifically discuss the situation herein present, it did pertinently say in Johnson v. New Jersey, supra, at 726 and 727: “In the past year we have twice dealt with the problem of retroactivity in connection with other constitutional rules of criminal proсedure. Linkletter v. Walker, 381 U. S. 618 (1965);
“In Linkletter we declined to apply retroactively the rule laid down in Mapp v. Ohio, 367 U. S. 643 (1961), by which evidence obtained through an unreasonable search and seizure was excluded from state criminal proceedings. In so holding, we relied in part on the fact that the rule affected evidence ‘the reliability and relevancy of which is nоt questioned.’ 381 U. S., at 639. Likewise in Tehan we declined to give retroactive effect to Griffin v. California, 380 U. S. 609 (1965), which forbade prosecutors and judges to comment adversely on the failure of a defendant to testify in a state criminal trial. In reaching this result, we noted that the basic purpose of the rule was to discourage courts from penalizing use of the privilege against self-incrimination. 382 U. S., at 414.”
In Johnson, supra, the Court also noted that, while it gave retroactive application to other constitutional rules of criminal procedure laid down in recent years (see, Gideon v. Wainwright, 372 U. S. 335 (1963), and Jackson v. Denno, 378 U. S. 368 (1964)), the rules affected involved “the very integrity of the fact-finding process,” whereas in contrast, the rule affecting the privilege against self-incrimination rests upon substantially different considerations.
Shadd next contends that the police witnesses’ testimony, concerning Felder‘s admissions and accusations, really amounted to Felder testifying against Shadd at trial without being called as a trial witness and without giving Shadd the opportunity and right of cross-examination, citing Pointer v. Texas, 380 U. S. 400 (1965). The situation presented in Pointer was totally dissimilar. Therein, the court received in evidence at trial the testimony of a then unavailable witness, as given at the preliminary hearing when the accused was without counsel and without the adequate facility to cross-examine. It was, in truth, trial testimony of the witness against Pointer. Herein, the challenged testimony was not as the trial court carefully instructed evidence of Felder against Shadd, but rather—evidence of Shadd against Shadd, or evidence of Shadd‘s behavior which could be construed as an admission of his guilt. Also, the trial court, in an exercise of caution, told the jury that if Shadd believed at the time that he was under no obligation to deny the accusations, his failure to do so could not be held against him.
Shadd further contends that because the incriminating accusations involved came from the mouth of a police officer, rather than from Felder himself, that there was “no accusation requiring a denial.” This issue is one that should have been raised by direct appeal and need not be cоnsidered in habeas corpus. See, Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A. 2d 637 (1966). Moreover, it is without merit.
Shadd also contends that the questioned evidence was constitutionally inadmissible, because the police failed at the time of the confrontation involved to fully inform him of his constitutional rights to remain silent and to have the assistance of counsel. Commonwealth v. Cheeks, 423 Pa. 67, 223 A. 2d 291 (1966), answers and controls this question.
Finally, Shadd contends he was denied his constitutional right to prosecute his post-trial motion, and a direct appeal from the judgment, because of indigency. He asserts in the petition for habeas corpus that he was advised by counsel “that the motion [for a new trial] would have to be withdrawn beсause of relator‘s lack of funds for appeals to the higher courts if the motion was denied“; that he was never advised or aware of his right to court-appointed counsel to prosecute an appeal; and that he agreed to the withdrawal of the new trial motion solеly because of inability to pay counsel for his services in the prosecution thereof.
There can be no doubt but that the appellant had an absolute right to ask for a new trial and to appeal from his conviction and judgment of sentence. Also, if he were indigent at the time, the stаte was duty bound to provide him with the assistance of counsel in the preparation and prosecution thereof: Douglas v. California, 372 U. S. 353 (1963); Commonwealth ex rel.
The record shows that subsequent to trial Shadd and his counsel appeared in court and the following ensued: “The Court: Are you [trial counsel] prepared to take care of the case? Mr. Grassbеrger: Yes, Sir. The Court: I have before me a motion for a new trial. Mr. Grassberger: That motion has been withdrawn. The Court: Shadd, you understand what Counsel has said? The motion for a new trial has been withdrawn. The Defendant: Yes. The Court: Then the matter is ready for disposition, Mr. Reed? Mr. Reed: Commonwealth moves for sentеnce.”
It is also undisputed that before the motion was withdrawn, Shadd wrote his counsel stating that he wished such to be done, since “after having been apprised of the facts,” he concluded “that . . . it [the motion] would not be in my best interests.”
While the above is conclusive evidence that Shadd intentionally consented to the withdrawal of the new trial motion, it does not, without more, establish why he elected to do so, nor does it preclude the possibility that he did so because counsel refused to proceed be-
It is noted, that the record discloses that the trial court did not conduct a preliminary hearing in the absence of the jury to determine the admissibility of the testimony of the “tacit admission” as may be required by Jackson v. Denno, 378 U. S. 368 (1964). Since no objection to the introduction of the testimony on the ground of voluntariness was suggested or interposed at trial, the issue may not be raised at this late date. See, Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A. 2d 810 (1965). We need not reach the question of whether or not evidenсe of “tacit admissions” comes within the purview of Jackson, supra.
The order of the court below is vacated, and the record remanded for a hearing solely to determine if the appellant effectively waived his right to the assistance of counsel in the prosecution of the new trial motion and an appeal from the judgment.
Mr. Justice COHEN concurs in the result.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
Chief Justice MAXEY‘s dissent in Commonwealth v. Vallone, 347 Pa. 419, 424, 32 A. 2d 889, 892 (1943) and Judge HOFFMAN‘S dissent in Commonwealth ex rel. Staino v. Cavell, 207 Pa. Superior Ct. 274, 278, 217 A. 2d 824, 825 (1966) unequivocally demonstrate the wholesale infirmities of the tacit admission rule. I am pleased that this rule will no longer infect criminal justice in our Commonwealth, but I am disappointed that this result has been obtained only under the compulsion of the Supreme Court of the United States. Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S. Ct.
Furthermore, in my view, the introduction of a tacit admission so taints the trial proceedings that it deprives the defendant of a fair trial as a matter of federal constitutional law. Cf. Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966). Thus, while I agree with the majority that Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772 (1966) leaves open the question of the retroactivity of this particular aspect of the Miranda decision, I would reach the opposite conclusion.
Even under the majority‘s own view, I believe it is incumbent upon them to decide now whether a tacit admission is within the purview of Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774 (1964). Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A. 2d 810 (1965), does not, as the majority asserts, foreclose Shadd‘s Jackson claim in this proceeding. The issue in Fox was the admissibility of a confession, alleged to be involuntary for the first time in a habeas corpus petition. Because Fox‘s lawyer was an experienced trial counsel who, at the time of Fox‘s trial, knew that an involuntary confession was inadmissible, we held that the failure to object to the admissibility of the confession constituted a waiver. Shadd‘s counsel, on the other hand, had no reason to suspect that a tacit admission could be excluded nor could he be expected to have foreseen the holding of Jackson v. Denno, supra; hence there can be no waiver of any objection. See Miranda v. Arizona, 384 U. S. 436, 495, n. 69, 86 S. Ct. 1602, 1639, n. 69 (1966). Since the holding of Jackson is retroactive, this case should be returned for a factual hearing, if as the majority intimately, but declines to decide, tacit admissions are included within the scope of that decision.
Commonwealth ex rel. Smith, Appellant, v. Rundle.