COMMONWEALTH of Pennsylvania v. John ANDERJACK, Appellant.
Superior Court of Pennsylvania.
Submitted April 12, 1979. Filed Oct. 26, 1979.
413 A.2d 693
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Before VAN der VOORT, SPAETH and WATKINS, JJ.
SPAETH, Judge:
On September 22, 1977, appellant was arrested and charged with theft by unlawful taking, receiving stolen property, unauthorized use of an automobile, aggravated assault, resisting arrest, recklessly endangering another person, and possession of instruments of crime. On January 4, 1978, appellant entered pleas of guilty to the charges of theft by unlawful taking, resisting arrest, recklessly endangering another person, and possession of instruments of crime.1 The Commonwealth dropped the other charges. On January 10, 1978, appellant was permitted to withdraw his guilty pleas. All of the charges were reinstated and a jury trial was held on March 7, 1978.2 The jury found appellant guilty of unauthorized use of an automobile, resisting arrest, and recklessly endangering another person, and not guilty of
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When considering а claim that the evidence was insufficient to sustain a conviction, “we first accept as true all the evidence upon which the finder of fact could properly have reached its verdict, and then, after giving the Commonwealth the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence and the inferences arising from it are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crimes of which he has been convicted.” Commonwealth v. Steward, 263 Pa.Super. 191, 199, 397 A.2d 812, 815-16 (1979); see Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). Regarded in this light, the evidence in support of the jury‘s conviction of appellant for resisting arrest may be summarized as follows:
At approximately 6:20 p. m. on September 13, 1977, Detective John Flaherty of the Allegheny County Police was driving his car near the corner of 9th and Carson Streets. He saw appellant driving a 1968 green Plymouth sedan east on Carson Street; appellant was driving erratically and
The crime of resisting arrest is defined as follows: “A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public
In arguing that the evidence was insufficient, appellant contends that evidence of mere flight to avoid arrest is not sufficient to support a conviction of resisting arrest. In support of this argument he cites this court‘s decision in Commonwealth v. Meo, 233 Pa.Super. 483, 334 A.2d 748 (1975). In that case the defendant drove away from the police after they had signalled him to stop and, after a brief chase, abandoned his car and ran away on foot. When apprehended, he was sitting in a nearby house. He was taken into custody without any resistance. In holding the evidence insufficient, this court stated that the defendant‘s “act of ‘running away’ from the police, both in his car and later, on foot” were not violations of the resisting arrest provision of the 1939 Penal Code. Id., 233 Pa.Super. at 487, 334 A.2d at 749; see
While
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During cross-examination by appellant‘s counsel of Detective James Morton, one of the officers assigned to investigate appellant‘s case, the following exchange occurred:
Q. At what time was Mr. Anderjack brought to your office on the 22nd, the day of the arrest?
A. I believe it was approximately 6:00 p. m. or around 6:00 p. m.
Q. Did you have any conversation with him?
A. Briefly, yes.
Q. What was the nature of that conversation?
A. We advised him of the charges and read—
Q. Let met interrupt you right there. When you say the charges, did you detail which charges you are referring to? Did you tell him he was under arrest for aggravated assault?
A. Yes.
Q. Did you tell him any information relating to the nature of the incident?
N.T. 95-96.
Appellant‘s counsel moved for a mistrial. The trial judge denied the motion but at once instructed the jury:
THE COURT: Members of the jury, as to the latter part of the witness‘s answer to the last question about the defendant‘s refusal to sign a waiver of rights form, the court would аsk you to disregard that portion of it, that is, he may have refused to sign this rights form because there would be no obligation on him or anyone else to sign such a form. And if the defense, as was indicated here at Side Bar would be making a motion to strike that part of the answer, the motion would be granted by the court and the jury would be instructed to disregard that portion of the answer and not to take any adverse inferences from it.
N.T. 102-03.
Appellant‘s argument proceeds in two steps: he equatеs the reference to his refusal to sign a waiver of rights form to a reference that he remained silent at the time of his arrest, and then contends that the prejudice created by the reference was not removed by the court‘s cautionary instruction.
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It is settled that it is reversible error to admit evidence of an accused‘s silence at the time of his arrest. Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976); Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). “The prohibition of any reference to an accused‘s silence reflects the court‘s desire that an accused not be penalized for exercising his constitutional rights.” Commonwealth v. Greco, supra 465 Pa. at 404, 350 A.2d at 828; see Commonwealth v. Stafford, supra. Even this error, however, may in some cases be cured by a cautionary instruction. See Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978); Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976); Commonwealth v. Quartman, 253 Pa.Super. 460, 385 A.2d 429 (1978); Commonwealth v. Williams, 252 Pa.Super. 435, 381 A.2d 1285 (1977).
In Commonwealth v. Maloney, supra, the Commonwealth elicited testimony from an investigating officer that the defendant has refused to make a statement when arrested. No objection was made to this testimony. Later, the Commonwealth elicited testimony that the defendant had been warned of his rights and that no statement had been taken from him. This time the defense objected and moved for a mistrial. The trial judge denied the motion but immediately instructed the jury that the defendant had no duty to give a statement and that they should disregard the evidence. The trial judge included a similar instruction in his charge. On appeal, Mr. Justice EAGEN, speaking for two other members of the Court, stated:
In order that there will be no confusion henceforth, we now specifically rule that in Pennsylvania adequate instructions under some circumstances may cure error of the nature here complained of. Initially, whether the harm can be removed by curative instructions will be within the sound discretion of the trial judge and his determination will be subject to appellate review. In making this decision, the following will be important considerations but not necessarily exclusive: (1) the nature of the reference, particularly, whether it was a specific comment on the accused‘s silence at trial or at the time of arrest or whether it was . . . merely a referenсe to the fact that incriminating evidence of the Commonwealth was undenied or uncontradicted; and (2) whether the accused‘s silence was exploited by the district attorney.
Id. 469 Pa. at 349, 365 A.2d at 1241.
In Commonwealth v. Williams, supra, this court, after discussing Maloney, stated that “we believe that our appellate courts have found any reference to an accused‘s silence after arrest to be reversible error unless the trial court gives a prompt and adequate cautionary instruction.” 252 Pa.Su- per. at 446, 381 A.2d at 1291; See Commonwealth v. Zellner, 268 Pa.Super. 59, 407 A.2d 436 (1979); Commonwealth v. Quartman, supra.
In Commonwealth v. Singletary, supra, the Supreme Court was again confronted with the question of whether a cautionary instruction would cure a testimonial reference to an accused‘s silence. In that case the prosecution asked the defendant the following questions:
Q. And you went down to the Police Administration building?
A. That‘s correct.
Q. And on advice of counsel, you made no statement concerning the case.
The defendant‘s motion for a mistrial was denied but the trial judge immediately instructed the jury that the defendant had no duty to make any statement, that what he did was on advice of counsel, that no inference should be drawn from his silence, and that the jury was to disregard the testimony. In holding that the cautionary instruction was not sufficient to cure the error, a majority of the Supreme Court stated that the earlier decision in Commonwealth v. Maloney, supra, was not controlling, noting in a footnote that Maloney had not commanded the vote of a majority. The Court went on to distinguish Maloney, saying that in Maloney the reference to the defendant‘s silence had been introduced initially without objection and the cautionary instruction had been more decisive.
It is perhaps arguable that Singletary overruled the plurality opinion in Maloney and with it, undercut this court‘s statement in Williams. However, given the Court‘s failure to say in Singletary that it was overruling Maloney, and its express distinguishing of Maloney, the better view would seem to be that both Maloney and Williams retain their authority. Thus, in Commonwealth v. Zellner, supra, this court stated that “[w]e do not read the cases decided after Maloney to have negated the plurality‘s position. Nor do we comprehend any rationale behind the argument that cautionary instructions, in the right circumstances, cannot cure
The rule of Maloney and Singletary, when they are read together, is that in deciding whether a cautionary instruction was sufficient, we must closely scrutinize the facts of the specific case, with particular attention to the following: 1) the nature of the reference to the defendant‘s silence; 2) how it was elicited; 3) whether the district attorney exploited it; and 4) the promptness and adequacy of the cautionary instruction.
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First: The reference to appellant‘s silence was the testimony that he had refused to sign a waiver of rights form. Such a reference may indicate to the jury that the defendant was uncooperative in some way. Reference to a defendant‘s silence when confronted with an accusation, however, may indicate to the jury that the defendant was guilty, on the theory of tacit admission—that when accused, an innocent person will protest his innocence. See Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85, 223 A.2d 296, 298 (1966) (tacit admission by defendant‘s silence when accused during police interrogation represents improper restraint on right to remain silent). We do not suggest that the reference to appellant‘s refusal to sign a waiver of rights form was not to some extent prejudicial. We recognize that it was prejudicial. We only say that in assessing the degree of prejudiсe, we should recognize that the reference was an implicit rather than explicit statement that appellant had chosen to remain silent. Cf. Commonwealth v. Ross, 403 Pa. 358, 169 A.2d 780 (1961) (reference to fact that Commonwealth‘s evidence at trial was uncontradicted).7 In addition, the degree of prejudice here was to some extent weakened by the fact that the jury had previously heard testimony that appellant was not always silent but had made a statement to Detective Flaherty that he was sorry if he had hurt him.
Second: The reference was not elicited by the district attorney or by the court but by appellant‘s counsel on cross-examination of a Commonwealth witness. It is true that the reference was not purposely elicited by counsel. Also, Detective Morton‘s statement that appellant refused to sign the waiver of rights form was not directly responsive to counsel‘s question. It cannot be said, however, that the detective‘s statement was totally forеign to the area that counsel seemed to be asking about. Counsel‘s questions seemed to concern the police processing of appellant after his arrest and what the detective had told appellant. (“Did you tell him any information relating to the nature of the incident?“) The detective answered responsively, when he said, “We explained what we had on the case to him and advised him of his rights.” His further answer, “[And we] gave him a waiver of rights which he refused to sign,” seems tо have been nothing more than an afterthought, added to complete the more responsive portion of his answer. Appellant‘s counsel should have been aware of the risk he was running. Only two questions back, when he asked the detective, “What was the nature of that conversation?” the detective had answered, “We advised him of the charges and read—“, whereupon counsel had interrupted.
From a defendant‘s point of view, the prejudice may be the same nо matter how it is provoked, whether intentionally by the district attorney or as in this case, recklessly by
Third: In Commonwealth v. Stafford, supra, the defendant himself, in response to questions by his attorney on direct examination, brought out the fact of his silence. The district attorney commented on his silence in his closing argument, and told the jury to weigh it in their deliberations. In reversing, the Supreme Court stated “[t]hat the appellant himself brought his silence, at the time of his arrest, to the jury‘s attention does not justify the prosecutor‘s grasping the opportunity to suggest that appellant‘s guilt be inferred from his silence at that time.” 450 Pa. at 263, 299 A.2d at 596. But see Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976). In this case the only reference to the refusal to sign the waiver form was that elicited by appellant‘s counsel. The district attorney did not conduct а redirect examination of the witness on the reference, and he
Fourth: The cautionary instruction was given promptly, only minutes after the reference. When an instruction is required, it is far better to give it at once than only much later. In giving the instruction, the trial judge was сareful not to suggest in any way that appellant‘s refusal to sign the waiver of rights form was the same as an exercise of his right to remain silent. The judge did not try to explain what appellant‘s refusal involved. This was an exercise in good judgment, for if an explanation had been given, the jury might have been more prejudiced. Finally, the instruction was unequivocal in its statement that appellant had no obligation to sign the form and that the jury should disregard and base no adverse inference on his rеfusal to sign it.
After considering each of the foregoing four factors, we cannot say that the trial judge erred in denying appellant‘s motion for a mistrial.
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In an oral motion at the beginning of the trial, appellant argued that the Commonwealth did not properly reinstate the charges of receiving stolen property, unauthorized use of an automobile, and aggravated assault, which it had dropped when appellant pleaded guilty to the other charges on January 4, 1978. The Commonwealth argues now, as it did to the trial judge, that there was a plea bargain and that the charges were dropped only because appellant had agreed to plead guilty to the other charges. When appellant was permitted to withdraw his guilty plea, according to the Commonwealth, the plea bargain ended, and the other charges were automatically reinstated.
We shall not decide whether the charges were properly rеinstated. In his post-verdict motions appellant did not
Affirmed.
VAN der VOORT, J., files a concurring and dissenting opinion.
VAN der VOORT, Judge, concurring and dissenting:
Although I agree that the reference to appellant‘s refusal to sign a waiver of rights form was potentially prejudicial, I believe that the prejudicе would have come from the jury‘s inference that appellant had been uncooperative with the police, and I believe that the trial court‘s cautionary instruction was sufficient to negate any such prejudice. The offending statement of the witness was: “We explained what we had on the case to him and advised him of his rights and gave him a waiver or rights which he refused to sign.” (Emphasis added). The jury would not necessarily have inferred from this statement that appellant had refused to talk to the police, or that one of the rights which the police wanted appellant to waive in writing was the right to remain silent.
I disagree with the majority opinion in that I would not characterize defense counsel‘s conduct as “reckless“. Counsel‘s question was: “Did you tell him [appellant] any information relating to the nature of the incident?” (Emphasis added). The volunteered information that appellant refused to sign a waiver of rights form was an unlikely response to an inquiry concerning what the police told appellant about the nature of the crime. I believe that counsel was not reckless in asking that particular question or in failing to anticipate the response.