*1 iwoolnntmry rights by termination abandon- parental ment. petitioner court be- However, appellee, the issue of low, parental raised properly as incapacity for a alternative basis decree termina- involuntary tion. The decree and its court, by did not opinion, speak issue. We believe the court below should permit have the appellee opportunity pursue the issue of whether has evidenced a continued and vrremedial parental incapacity would a decree of justify termination involuntary under Sec- tion 311(2) of the Act of Adoption 1970.
Decree vacated and case remanded for action con- sistent with this Each opinion. party pay own costs. Appellant.
Commonwealth v. Davis, *2 reargued November November Argued. 8, 1971; 1972. Before C. Roberts, Jones, J., Eagen, O’Brien, Nix and JJ. Pomeroy, Manderino, W. Donald for appellant. Sparks, Vrarn Wedurian, Assistant District Jr., Attorney, Attorney, B. D’lorio, with him Assistant District Ralph Stephen and J. McEwen, JrDistrict for Attorney, appellee. Commonwealth,
Opinion by Mr. Justice 1973: Roberts, May 23, Curtis arrested in December Appellant, was Davis, of 1968 murder, and with charged man- voluntary A slaughter, involuntary manslaughter robbery. filed timely motion to pre-trial evidence was suppress denied. on September Thereafter, 25, 1969, appellant was adjudged voluntary guilty, by jury, murder, manslaughter robbery. Appellant and two counts of sentenced, on con- by the to death the murder jury, viction, from ten to twenty years imprisonment, on the mo- court, robbery convictions. Post-trial tions in judgment arrest of and for new trial were denied. This appeal direct followed. We now reverse *3 and remand for a new trial.
Appellant contends that the assistant district attor ney committed reversible error by attempting to create an impermissible adverse inference in the minds the of jurors of appellant’s exercise his Fifth regarding Amendment trial.1 rights Appellant alleges this was accomplished by prosecutor’s the persistent references over closing argument, objection, the evidence “uncontro against being verted.” the supports appellant’s Review of record con tention that the use of the prosecution’s repeated words “uncontroverted” fact” “uncontroverted created an inference Fifth by adverse the prohibited Amendment the United States Article the Constitution,2 1, of §9
1 Appellant also contends that additional errors were committed by evidence, allegedly illegally the trial court and certain suppressed. Appellant seized, challenges should been also have the legality However, disposition, of his of arrest view our we need decide these not issues. compelled any person . . . be “No shall criminal case be against . . . ." himself U. S. Const Amend. V. a witness of 23, Act May and the Constitution,3 Pennsylvania 1887. made Fifth Amendment, settled that the is well the Fourteenth Amend through to the states applicable S. Ct. 1, ment, Malloy Hogan, on prosecution either comment by forbids (1964), trial instructions by silence accused’s guilt. of v. Calif that such is evidence court Griffin “Upon 1229 (1965). 85 S. Ct. ornia, 609, com believe that the prosecutorial present record, [we] ment the ‘uncontradicted’ about ‘uncontroverted’] [or afoul directly Commonwealth’s case nature of the runs Allen, prohibition.” Commonwealth Griffin Pa. 281 A. 635 (1971) 2d 156, 159, (Roberts, affirm from an curiam opinionless per J., dissenting joined ance, J.). Eag-en, J., O’Brien, nor neither testified trial where Here, . “. . state defense, offered other . . . himself implied ment ivas] [defendant [s] have denied who could and should only [one] reasonably charges jury against might [him]. statement from [his] [these] [s] inferred failure to do so was evidence Common guilt.” [his] A. wealth v. Pa. Reichard, Superior con patently 2d Such an inference is supra.5 trary Griffin, to the mandate compelled give accused] “[The cannot evidence I, . himself . .” Pa. Const. Art. §9. . actually upon court, “Except defendants *4 trial in a criminal may compelled any competent testify any proceed- be to in witness any may compelled ing, criminal; he not be to civil or but answer which, opinion question judge, trial to would tend may negleet any him; defendant, nor or criminate refusal of actually court, upon trial criminal to offer a himself as a wit- creating presumption against him, be ness treated or ad- be versely during to referred court counsel the trial.” L.P. §10, §631. 19 P.S. 5 Supreme Griffin, presumption stated in “As the Court seriously in a in favor of a defendant criminal case innocence
175 As th.e First Circuit recently stated United States v. Flannery, 451 F. 2d 881-82 : “. . (1971) . [W]e held that for the government in summa say, [have] tion to the that certain of jury, its evidence ‘un was when contradiction contradicted,’ would required to take the stand, drew attention to his failure to do and hence so, was unconstitutional com ment. Desmond 1 v. United F. States, Cir., 2d 225. We do not adopt reasoning those courts which state, as it seems to us, ingenuously, to say the government’s witnesses’ testimony was uncon tradicted a statement simply of historical fact. There are which many are in themselves. benign ‘facts’ is that difficulty such when reference, the de could have contradicted, clearly calls fendant jury’s mind the that he to testify.”6 (Em- fact failed jeopardized by any concerning Realistically, comment his silence. the defendant’s words and actions will be viewed with critical a eye testify. everyone safely if he chooses to ‘It is not who can though entirely charge venture on the witness stand innocent of the against timidity, him. facing others, Excessive nervousness when attempting explain suspicious character, transactions of a charged against him, and offenses will often confuse and embar degree rass him to such a preju as to increase rather than remove everyone, dices him. It is not honest, would, however who therefore, willingly placed on the witness stand.’ Wilson States, may United A defendant refuse wholly guilt. for reasons unrelated to his innocence or permitting Consequently, upon comment the defendant’s failure to testify subjects testifying the accused to the hard choice of or run ning jury’s guilt risk of unwarranted inference from his Reichard, Superior silence.” Commonwealth 55, 59-60, 211 Pa. (footnotes (1967) omitted). A. 2d The use of the word “uncontroverted” in the clos ing argument reason, error for another since the defendant at affirmatively deny any allegation need not trial at all. There is every always jury question except issue, expressly as to those con government ceded, See, e.g., on which has the burden. Minor States, (8th 1971) ; United F. 2d 637 Cir. United States v. (1st 1971) Alessio, ; F. 2d DeCecco v. 1984). (1st Cir.
176
phasis
United
added)
(Footnotes omitted). Accord,
States v.
447
853
Cir. 1971);
F. 2d
Handman,
(7th
United
ex
States
rel. Leak v.
418 F.
1266
2d
Follette,
90
(2d Cir.
cert.
397
S.
1969),
U.S.
denied,
1050,
2d
409
1388;
v. United
F.
Rodriguez-Sandoval
States,
529
Cir.
(1st
Doty v. United
1969);
States,
(10th
Cir.
v. United
1968),
Epps
vacated sub. nom.,
United
States,
(1971);
U.S.
Not under rights but also his under violated, Constitution States Pennsylvania Constitution, Article 1, §9 it. implements 1887 which It is well May 23, Act by prosecution comment or the settled if of 1887 it “. . . atten the Act draws violates court one focuses on no except fact tion to .” can rebut Commonwealth’s case. . . defendant supra. 3 and See notes supra A. at 604. Reichard, 2d obvious, on this record, prosecutor’s comments clearly did that which is prohibited the Act. “We think the assistant district too attorney went both under far, *6 the Act of 1887 under the Fifth Amendment pro- in Griffin.” scription as enunciated Commonwealth v. 443 Pa. 2d Camm, 268, 277 A. 333 253, 325, (1971). We hold that the comments were error, and also that were they error, necessitating the harmful On grant of a new trial. this record, prosecution’s comments cannot be held to be “harmless a rea- beyond sonable doubt.” analysis
Our
impact
gravity
error
is guided by two general precepts.
. . before
First, “.
a federal constitutional
error can be held
harmless,
court
be
must
able to declare a belief that
was harm
it
less
a reasonable
beyond
doubt.”
v.
Chapman
Cali
386
87
U.S.
S. Ct.
828
fornia,
18, 24,
824,
See
(1967).
v. California, 395
89
Harrington
U.S.
S. Ct.
250, 251,
1727
v.
1726,
(1969); Schneble
Florida,
Keeping con possibility” a reasonable that the “there is whether con “might have contributed to the stitutional error Chapman California, supra, viction.” a possibility, 828. If there is such S. no there is reversible. But if constitutional error error constitutional possibility reasonable average jury”9 minds have moved “the might it can said that the error toward then conviction, harmless. one Chapman have established subsequent Cases if there is *7 general proposition that exception the constitutional error that possibility reasonable can the error conviction, contributed to might have That presented by be is those exception not harmless. is guilt admitted evidence “properly cases where of the . . . and the effect prejudicial so overwhelming, insignificant by compari is so error] [constitutional a reasonable doubt beyond that it is clear that son, error.” harmless . . . error] [constitutional 1059; v. Ct. at Florida, supra 430, S. Schneble Ct. v. 395 U.S. S. California, 250, Harrington see 1726 (1969). a that emphasized
It conclusion should and overwhelming,” is admitted evidence “so properly error “so effect of the constitutional is prejudicial govern be noted that federal standards what also should Chapman prejudicial. be considered v. error must constitutional 21, (1967). California, Ct. 87 S. 826-27 U.S. 250, 254, Harrington California, S. Ct. v. insignificant” by comparison, it is clear beyond reasonable doubt the error is harmless, is not be arrived at For lightly. the effect of a conclu such sion to affirm a conviction where it is conceded an error of constitutional proportions contributed some In degree to the conviction. such a con addition, clusion operates to undermine “the deterrent effect such v. cases as Mapp v. Ohio; California; Griffin Miranda United States v. Arizona; Wade; Bruton on the actions of both police not trial . .” prosecutors, speak of courts. . Harrington California, 89 S. supra, (citations omit J., dissenting) (Brennan, ted).
Applying these standards do present we case, not believe that the Commonwealth be has established yond a reasonable doubt the constitutional error present this case was harmless. The Commonwealth, its during closing address to the jury, ex thoroughly ploited appellant’s exercise of his Fifth Amendment not to right take the witness stand. prosecutor The argued that “'under the uncontroverted the Com facts proved monwealth has beyond reasonable doubt that this defendant of murder guilty in the first degree and robbery.” (Emphasis al added.) prosecutor so used the term repeatedly “un “uncontroverted” controverted facts” at least three other times in re portions of ferring Commonwealth’s evidence.10 *8 prosecutor point At one in the summation stated: “It is also paper bag uncontroverted that Curtis Davis received a Mr. from something, Darlak and said I can’t word, remember the exact but something give you like, going this, it I is am to or words to that quick effect, and then two shots in succession. fired from facts, “You can find this series of uncontroverted mem- jury, Davis, here, that Mr. bers of the was in fact time, robbing Clearly, .” Mr. Darlak at the . . these statements to move obviously calculated was
This argument persistence the very “Indeed, conviction: toward jury remarks making proof these of the government Rodri much to them.” importance it attached that that at 581. We must conclude supra guez-Bandoval, possibility is a reasonable there have contributed “might argument unconstitutional the conviction.”11 ap- evidence against not believe
We also do
characterized as “overwhelm-
case can be
in this
pellant
identify
who could definitely
The
witness
ing.”
only
ap-
unable
at
had been
to identify
the trial
appellant
One other witness was
lineup.
a pre-trial
pellant
all.
The murder
identify
appellant
unable to
by showing that
appellant only
linked to
was
weapon
to a woman
belonging
at an apartment
it
found
was
as
by
appellant’s girl friend,
one witness
described
a
and near
key
which
had
apartment
observed some two and one-
car was
which appellant’s
shooting. Ownership
weapon
after the
half hours
only
the Commonwealth.
by
proved
was never
a tan hood and
appellant was
against
other evidence
the same
found
which
apartment,
jacket,
dark
but which were similar
unique
no means
by
were
eyewitnesses
jacket which two
described
hood and
the case
wearing. Although
ap-
perpetrator
it
cer-
reasonably strong,
nevertheless
was
pellant
“honest,
jurors
in which
case
fair-minded
tainly
brought
not guilty
well
verdicts.”
very
might
by
prosecutor
hope
made
have been
could
by
appellant,
failing
testify,
admitting
jury
infer
would
guilt.
unwilling
government
are
we
a case
allow
“In such
unprovable
improperly
then avoid reversal
asser
to act
probably
prejudice
grievous
Rodriguez-
did not
result.”
tion
(1st
1969).
val v.
Sando
*9
Mr. Justice concurs in the result.
Mr. Chief Justice Jones dissents.
Concurring Opinion Pomeroy J ustice Mr. : I cannot agree that the prosecutor’s use of the word “uneontroverfced” in argument his closing jury constituted upon appellant’s adverse comment exercise of his Fifth Amendment rights, interpreted Grif- California, L. Ed. 2d 106 (1965). fin
For the remarks of im- a prosecuting attorney to be permissible for it this must reason, appear that “the language used intended manifestly or was of such character the jury would naturally and necessarily take it to be comment on the failure of the accused to Knowles v. United testify.”
(10th Cir. 1955). The question, therefore, is whether the jury would so understand the use “un- word controverted”. The word “controvert” means “to dis- or pute oppose by reasoning; to deny; contradict.” Webster’s New International Dictionary of English 2d Ed. Language, “Uncontroverted” means, obviously, is something not disputed or opposed by or reasoning, is not or not denied, contradicted. the most natural thing the world any for lawyer his summation to point out that salient points of his client’s case not been disputed or or denied, important testimony has not been contradicted. This ais fact of the case as then it stands; the lawyer is but giving emphasis what already known to the fact finder.
To hold this kind of remark, without more, and particularly without any reference to the refusal indication defendant is an ad- could do the controverting, Fifth on the exercise of comment defendant’s
verse things to me right stretching Amendment seems *10 of a factual, The converts the use holding unduly. commentary. into a adverse pejorative colorless word the farther and as does the go declare, Court, To of a lengthy use “uncontroverted” in repeated thrice ex- the argument “thoroughly exploited” summation to defendant’s not seems right ercise of the to extravagance. the If, to insupportable me to the uncontro- opinion view word states, Court’s of so be is an “act innocently sophistry”, thus vei*ted it. opin of the implication majority
Contrary
in
are far from uanimous
find
the federal courts
ion,
comments on the un
prosecutor
error
the
where
ing
de
the
the
nature of
evidence
controverted
contradicted it. The opposite,
fendant
could
has
expressed
been
at some
my
better,
in
mind
view
rel.
Friendly
in
States ex
Judge
length
418 F.
(2d
1969),
2d Leak v. Follette,
the
“Neither
Innocent words
facial
and
said,
gestures
are
they
the way
ings by
in-
their utterance,
accompany
expressions
speaking.
surrounding
setting
entire
deed the
commit
theoretically possible
I
at least
suppose,
is,
there would
in
but
way,
such
violation
Griffin
beyond
circumstance
some evidence
have to be
Here there
none.
word.
innocent spoken
the Court’s
disagreement with
normally my
While
opinion
would cause this
above expressed,
as
opinion,
there is another
issue
to be labelled as a dissent,
trial
that a
agree
causes me to
new
this case which
intro
Appellant
challenges
be awarded.
should
caliber
jacket
of a
.32
hooded
duction into evidence
girlfriend’s apartment pur
seized at his
both
revolver,
trial
warrant
and identified
suant
to a search
Dar
murdered Chester
gunman
who
belonging
of sworn
was issued on
basis
lak.
warrant
testimony presented
police
oral and unrecorded
length
my
For reasons set out at
to the magistrate.
dissenting opinion
Milliken,
Commonwealth
belief
my
A.
it is
(1973),
2d
Pa. 310,
*12
violative of both the Fourth
procedure
such a
Follette, supra,
ex
Leak v.
in United States
rel.
even
noted
As
today by
purporting
the rule announced
ma
to follow
courts
very
thinking
persons
jority
other than
resourceful
have been
prosecution’s
contradicted the
evi
who could have
present case, alibi
been called
witnesses could have
So in
dence.
elsewhere at
time Chester Darlak
grocery
store. See United States v.
killed in
Mc
was shot
(3d
1972).
Clain,
F. 2d 68
Fourteenth Amendments.
See also my
opin
dissenting
ion in Commonwealth v.
&
Pa.
Hughes,
Bedford
Commonwealth v. Schmidt,