*1
litigаnt
found that a
past,
Supreme
Court has
her claim that
the terms of
who failed to assert below
pursue
unconstitutional
her
sentence were
waived
Boone,
appeal. Commonwealth
that claim on
467 Pa.
cited Boone
recently
COMMONWEALTH of RASHEED, Appellant. Abdul Superior Pennsylvania. Court of
Argued 1989. Oct. Filed March *2 Sosnov, Philadelphia, appellant. for Leonard N. Gerson, Atty., Philadelphia,
Frances Asst. Dist. G. Com., appellee. CIRILLO, CAVANAUGH, Judge,
Before President MONTEMURO, OLSZEWSKI, SOLE, BROSKY, DEL TAMILIA, JOHNSON, KELLY and JJ.
CAVANAUGH, Judge: The sole issue for our consideration is whether the trial in a charging court committed reversible error counsel, case, defense that the defen- rape objection by over and that no infer- testify dant did have unfavorable the defendant for failure to against ence was to be drawn in his own behalf.1 testify us, Rasheed, appellant,
In the case before Abdul did in the he not take the witness stand of an instrument of charged rape possession *3 charge crime. His counsel did not want the court to his himself, he such right client’s not to incriminate as feared attention on the fact that jury’s instruction would focus the appellant the did not testify.2 An trial the not to right testify accused a criminal has Amendment of the under the Fifth United States Constitu- the states the Fourteenth Amend- applied through tion as to Klein, charge by portion 1. The relevant Honorable Charles judge, senior was as follows: Now, defendant, Rasheed, Abdul did not take the witness the law, Under the he does not have to take stand in his own defense. right and must the stand or offer a defense. This is his absolute be clearly by you accepted right. understood and as his Defendant innocent, presumed to be and the burden remains on the Common- beyond prove a reasonable doubt all of the elements of wealth to charged beginning the crimes with which the defendant from the the till the end thereof. trial Therefore, inference, certainly, clear and I wish to make it that no against no unfavorable inference is to be drawn the defendant he did not take the stand in his own behalf. because trial, Following appellant rape possession 2. convicted and imprisonment an instrument of crime and he was sentenced to of rape period years. for a of seven and one-half to fifteen The court did impose possession for his conviction of of an instrument not sentence of crime. 85 S.Ct. v. California, 380 U.S. ment. Griffin criminal defendant Pennsylvania, a In L.Ed.2d 106 by himself stat- against testifying- against protected is also I, of9 ute,3 of Article Section provisions Pennsylvania Constitution.4 case, testify, did not and the
In the
the defendant
instant
to do so.
to his failure
made no reference
prosecution
not,
he
request
that
Notwithstanding defense counsel’s
to be
generally
that is
considered
gave
court
an instruction
draw any
could not
the defendant
that the
beneficial to
to
from his failure
against
appellant
adverse inference
counsel,
part
strategy employed,
Trial
as
testify.
give
instruction
requested the court not
lies the basis of
request
complied
with. Therein
appeal.
234, 310
Danzy,
Commonwealth
(1973),
request
defendant did not
that the court not
and the court
charge
charged
on his
to remain silent
testify
he
such a
failure to
could
right,
had
that
The appellant
the defendant.
contend-
against
not be used
charge
error
such a
in the absence of
give
ed
it was
charge
it be
We held that the
could
request
given.
5941(a) provides:
Pa.C.S. §
(a)
actually upon
Except
trial in a
defendants
General rule.—
compelled
any competent
may
proceeding,
witness
bе
criminal
matter,
criminal;
testify
may
compelled
any
but he
not be
civil or
which,
opinion
judge,
any question
the trial
in the
answer
him;
neglect
or refusal of
would tend to incriminate
nor
defendant,
any
actually upon
proceeding,
to offer
in a criminal
witness,
creating any presumption against
as
as a
be treated
himself
him,
adversely
during the trial.
referred to
court or counsel
or
*4
I,
Pennsylvania
provides:
Constitution
4. Article Section of the
prosecutions.
Rights of
Sec.
accused
criminal
prosecutions the
hath
to be
accused
heard
all criminal
counsel,
cause
his
to
the nature and
of the
himself and
demand
face,
him,
against
to have
to meet the witnesses face to
accusation
compulsory process
prosecutions by
favor, and,
obtaining
witnesses in his
for
information,
speedy public
indictment or
vicinage;
compelled
give
to
impartial
he cannot be
of the
life,
deprived
liberty,
against himself,
can
of his
nor
he be
evidence
judgment
peers
law
property,
by the
of his
or the
of the
or
land.
unless
added.)
(Emphasis
properly
given
long
be
“so
as the defendant does not
object.”
The
as appellee,
Oregon,
side v.
435 U.S.
98 S.Ct.
It may be wise a trial not to judge give such a cautionary instruction over a defendant’s objection. And is, course, each State its trial judges free forbid so doing as a matter state law. We hold only from giving such an instruction over the defen- dant’s objection privilege against does not violate the compulsory self-incrimination guaranteed by the Fifth added.) and Fourteenth (Emphasis Amendments. Lakeside, All that supra, did was to remove federal constitutional barriers to the giving charge ques- tion objection; give over counsel’s it did not approval to, such a charge objected when left it expressly states to decide question.
Our decision in Danzy, supra, directly point, while not procedural posture case, since the was different than in our if by implication, stated that the defendant objects charge given, before it is the court give should not reasonable, charge. This rule is as defense counsel and his or her cliеnt should if they be able to decide want the jury to focus on the fact that the defendant has not testified. fact, will be aware but some cases the highlighted. defendant not want this We believe the rule should where a criminal testify, defendant does not and specifically requests *5 not right testify that he has the to charge not to court his failure to drawn from may no inference be that adverse give the stand, it error for the court to take the silent.5 right a to remain concerning defendant’s instruction supra, v. Danzy, This is consistent with Commonwealth is the charge given which stated “[W]hether A.2d 293. choice.” 225 defendant’s where the give error to the instruction While it was at we must look given, it not requested defendant be to at the error occurred the trial the entire record of us, case it is harmless error. before determine if King knew Deborah that the appellant there was evidence King Ms. the incident. prior of time to period a short High at Central Department worked in the Custodian work, she the defen walking passed to School and when dant, as construction employed who at that time was At worker, King him. Ms. lived alone. came to know 16, 1986, appellant morning A.M. of June 9:30 had to return a that she loaned jug at her door appeared gave him in and containing а She invited beverage. him Finally, in the kitchen. can The talked him a of beer. two leave, as he have to King that would appellant Ms. told made advances appellant had return to work. The she to him and King she refused kiss Ms. and when toward leave, out a twelve-inch knife pulled told him to he again go She was fearful and instructed her bedroom. told her to remove his demands and he comply not to prosecutor necessarily where the does extend cases This rule not testify. A erroneously did not refers to the fact that the defendant required cautionary then to cure the error. The instruction be Pennsylvania Suggested Standard Criminal Note for Subcommittee Jury 3.10A states: Instruction [concerning question give type instruction The of whether to up generally come unless the to remain does not silent] improperly prosecutor has alluded to defen- or someone else given sponte, prefer- may sua dant’s silence. instruction immediately, flagrant impropriety How- ably occurs. whenever ever, that the defen- the instruction does remind because ordinarily story, tell own the court should dant did not elect to his giving instruction. counsel’s desires before ascertain the defense respected ought when preference for instructiоn to be A no defense impropriety was serious. her clothing which she did. She him kept asking he why was doing this to her. him She told that she bleeding and he said that he had seen blood before. He then had sexual intercourse with her and after he reached for his *6 knife again, the victim submitted to a second act of inter- course. occurred, After the acts got two dressed and the appellant walked the victim to school. King got
When Ms. to her work area High at Central School, one of her co-workers saw that she crying asked her what was wrong and she told her that she had raped. been She also told a non-teaching assistant what happened, who told her report the incident to the police, which she did. She was then taken to Episcopal Hospital and examined.
A few after days occurred, the assault the appellant called King Ms. and asked her if she called police him.
While the court erred in giving the objected charge, .the error was not such that a new required. trial is Where an evidence, error is committed in introducing it may be harm- less error in some supreme circumstances. The court stat- ed in 391, 412, Commonwealth v. 476 Story, Pa. 155, (1978):
... be harmless where the admit- properly [EJrror ted guilt evidence of is so overwhelming the prеju- dicial effect of the error is so insignificant by comparison beyond that it is clear a reasonable doubt that the error could not have contributed verdict.
In determining whether error in admitting
is
evidence
harmless, the court must
if
determine
the admissible evi-
guilt
dence of
is overwhelming.
Morris,
Commonwealth v.
533,
(1989);
522 Pa.
evaluated 'Amato, v. D A.2d 300 wealth Pa. admitted, erroneously case does not evidence Our involve therefore, improper prosecutor or conduct trial, into a rather a an element error but admitted charge by the court it was correct statement law, not To determine if the given.6 but should have been harmless, discern if the error in the error we must so the verdict as to charge, any way, contributed perceive it less than a true We it did render verdict. challenged has in this case. not appellant evidеnce, sufficiency of the and indeed it was sufficient *7 Although the the law to sustain the convictions. under called to the fact the charge have attention may was offered testify, did not no evidence behalf appellant charge and the did not call the jury’s of the defendant of it was not aware.7 anything attention to Dissenting Opinion Concurring and focuses on whether the 6. The overwhelming guilt if the evidence is is to determine evidence of However, above, the in the instant case did as noted error harmless. evidence, supra. admitting Story, The error in as in not involve an charge given point judice, is whether the as in the matter sub focal improper in verdict. resulted an Oregon, distinguishable where several case from Lakeside v. 7. Our is defendant, thoughts but the ex- testified on behalf of the witnesses pressed by applicable. at are The court stated the court nevertheless 1094, 1095, 339-340, at 325: S.Ct. L.Ed.2d U.S. at such Specifically, petitioner contends that in a trial as the witnesses, one, through the presented several where the defense was reasonably not notice he hope that the will defendant can circumstances, giving testify. the the such of himself did not instruction, flag says, "waving in of cautionary he is like a red front jury. the very require indulgence petitioner’s argument in two would First, jurors assumptions. have not noticed that doubtful not, therefore, testify will draw adverse did not the defendant Second, jurors totally dis- that the will on their own. inferences instruction, give they affirmatively weight to what regard all. not to consider at have been told in While we decide that the court erred charging jury concerning the lack inference from adverse testify, defendant’s the defendant requested failure when charge given, that such not be are to agree we unable Supreme Court Massachusetts that the of the giving charge course, error.8 The per se reversible better in our opinion, is to on a determine case basis whether the case charge error committed the court in giving when the defendant that it not requested given, be constitutes harm error, less as in the case before us. following dissenting
We add the
to the
response
Cirillo,
opinion
Judge:
President
do not find
We
that the
issue
by appellant
raised
has been waived. The Common
appellant
wealth
its brief concedes that the
filed supple
mental post-verdict motions
the sole issue
raising
pursued
Further,
view,
on this
in our
appeal.
Judge
permitted
Klein
the filing
supplemental post-verdict
motions
he
when
stated
grounds
that “additional
raised
support of such
in writing
motions
be filed
transcription
after
transcript
the record if the
is necessary for these additional
event,
grounds.” In
motion
any
supplemental
was filed
verdict,
eleven days after the
and in view of the trial court’s
statement, must
construed to
timely.
be
Supreme
8. The
Court
Judicial
of Massachusetts
stated in Common-
Buiel,
(1984)
wealth
Mass.
289
Common-
In
find waiver.
quick
too
must not be
We
(1987)
v.
480
Sheaff,
wealth
530 A.2d
Pa.Super.
365
sufficiency
could not consider
court held that it
motion
post-trial
in
supplemental
raised
evidence issue
file such a
permission
not
grant
did
where
court
this issue on
motion,
considered
though the trial court
even
in a per
curiam
order held
Court
Supreme
merits.
issue as waived.
treating
erred in
this court
55,
In Kurtas v. 555 A.2d its discre- this court abused determined that Court Supreme post-trial issue where the finding waiver tion verdict days not filed ten after were within motions procedure, rules of civil where violation of the defect, merits of the addressed the overlooked the court Hewett, also, v. issue. See Commonwealth Pa.Super. issue not (1988) deemed an where we 551 A.2d file permission granted no although there was waived motions, court never- and the trial post-trial supplemental guided by the Su- issue. We were considered the theless v. Commonwealth per curiam order preme Court’s supra. Sheaff, discretion case, below abused its
In the court instant supplemental post- in the reviewing the issue raised if event, considered that even we any trial motion. not, nevertheless waived, we could issue was which we do McSherry, Commonwealth issue. choose consider the (1988). Finally, it considered issue in this case wаs significant the court en banc. to be heard importance sufficient sentence affirmed. Judgment of J., TAMILIA, concurring files statement. JOHNSON, JJ., concurring file
KELLY and dissenting opinions. dissenting opinion. files
CIRILLO, Judge, President *9 TAMILIA, Judge, concurring: J., Cavanaugh, despite I vote to and remark join only presumed strategy having jury trial counsel’s to avoid “reminded” that did not in appellant testify, my experience to and talking jurors lay people general leads me to there is a common a impression person believe who does not in his defense is testify concealing something own or is which instructs the guilty. charge jury to remove from their minds any party guilty belief that because of failure to deals this testify percep- almost universal tion. The harm which it to far attempts obviate exceeds the strategic occasional counsel might benefit believe is by principle achieved failure to enunciate the to the jury. Failing give charge also sets an up argument for counsel, ineffective counsel when review other awith viewpoint, different leads to the charge conclusion given. should have been This is a matter in which we cannot second guess judge.
KELLY, Judge, concurring dissenting: I concur the result I find neither error nor only. prejudice the trial court’s decision to instruct correctly- the jury, objections, over defense counsel’s as to the jury’s obligation negative not to inference draw from the defen- dant’s exercise of his not to testify. counsel, here,
Defense apparently majority are of opinion that citizens selected to on a jury serve solemnly apply impartially, sworn the law are none- theless more infer from likely improperly guilt a defen- dant’s exercise of the right to not to when are testify they to, instructed not than specifically question when the of a silence, defendant’s silence is itself passed and the mem- bers of the are left to their own untutored If instincts. so, one hardly were could understand defense how counsel or the majority could ever countenance such a instruction, pernicious or consider its use a matter of “tac- tics” for the defense to decide on a case case basis. that a firmly opinion. believe contrary I am of a attempt place at least correctly instructed will deliberations, an unin- while out of their silence appellant’s *10 defendant’s to consider a likely is far more jury structed arrest, evidence following silence, in of accusation the face notes, correctly hereto- As guilt.1 of the Commonwealth will follow fore, jury been that the presumption has them, court, ignore will of trial not that it instructions Blount, 387 v. Commonwealth opposite. do the See and 952, (1989); 603, 618, A.2d 960 Common- Pa.Super. 564 5, 454 A.2d Nicholson, 370, 380 n. Pa.Super. 308 v. wealth (1982) cases) 581, (citing n. 5 586 prejudicial, instruction is I find the that the suggestion silence, thor- to the defendant’s because it draws attention reasoning properly may such oughly unpersuasive. While or remarks or to other minor improper apply passing errors,2 jury can a twelve hardly expect we technical to overlook the fact that reasonably intelligent citizens defendant, determine, sat silent they whose fate are to involving case like a throughout the In a proceedings. might under- rape, appellant’s crime as serious as silence “deafening” juror as a untutored standably be viewed of our constitutional deci- regarding contrary mandate being from prevent sions the need to defendant explaining “compelled” by such an inference incriminate himself against self- compelled of his constitutional violation incrimination. implicit assumption
More
importantly,
reject
the for-
decisions should control
counsel’s tactical
defense
The form
mulation of the
instructions.
trial court’s
are matter left to the
and content
instructions
court;
sound discrеtion of the trial
while defense counsel
“no
requests or
defendant has
suggestions,
make
Monahan,
623,
Pa.Super.
A.2d 231
Commonwealth v.
378
549
1. Cf.
silence);
(an
(1988)
regarding pre-arrest
guilt
permitted
inference
231,
2124,
Anderson,
65 L.Ed.2d
also Jenkins
447 U.S.
100 S.Ct.
see
v.
(same).
(1980)
86
Osborn,
e.g.
n.
516
528
2. See
Commonwealth v.
n.
right to have any particular form of instruction given; it is
enough that the charge clearly and accurately explains relevant
Alvin,
law.”
357 Pa.Super.
509, 518,
(1986)
(per
J.; Cirillo,
Kelly,
P.J.,
Wickersham,
McEwen,
Brosky,
Olszewski, Montemuro,
Johnson,
Beck
JJ.,
and
join).
Court,
its brief to this
the Commonwealth cites State
Rollins,
App.2d 330,
Ohio
(1976),
wherein an Ohio court addressing this same opined: issue
The inherent power of the trial court and its statutory duty to instruct the jury fully correctly all the applicable law is not subject to the whims or strategic desires any party. While instructions must always be precise correct, we know of no decision grants any party the right prevent full adequate instruc- *11 tions on all the applicable law. Such a right, granted, if would undermine jury system and the function of the trial judge.
[*] [*] [*] [*] [*] [*] The tradition of justice this country through a fair and impartial jury upon based a complete submission of all judge applicable law and an honest considera- tion the jury of the facts. Law and facts submitted to a jury present problems difficult require judg- fine ment. In this delicate balance it is incomprehensible that any party permitted to control the or require law to the court to withhold the law from the jury so as to force the jury to resolve a case in a vacuum.
with which to (and bind the trial court the public’s interest in justice) to counsel’s “tactical” decisions. I dissent to both the particular instance, and the general trend.
293 court is to the trial role of proper believe of the the conduct over authority supervisory its exercise applicable charge to trial, including authority its directed process law, keep the adversarial to principles dis- truth and discerning the goal of ultimate toward or de- prosecution permit than to rather justice, pensing deteriorate into proceedings cause or allow fense to or justice. relation to fact bearing no wits legal contest “impe- than rather “umpireal” court’s role the trial While some- authority and has the nonetheless rial,” the court objec- counsel’s intervene, against or duty times the than tactics rather justice tions, truth to ensure procеedings.3 remain the focus theatrics granted broad ends, court has been the trial To those trials. Absent a criminal the conduct of over discretion has broad au- trial court of discretion the manifest abuse dire, the conduct of voir proof, admis- order thority over and cross-examina- evidence, of direct and conduct sion of instructions. form and content tion, as well as the Slocum, 428, 432-436, v. Pa.Super. See Commonwealth 384 Grove, v. Commonwealth 50, (1989); 52-56 559 A.2d (1987) 376 & 379 340 & Pa.Super. denied, allocatur Pa. cases), (collecting Alvin, supra. Commonwealth (1987); 553, 549 A.2d v. King, Commonwealth panel: for a unanimous (1988), this author observed duty ques- has a and sometimes A trial judge and to elicit new existing facts clarify tion witnesses in a not be done should facts, though questioning *12 trial right a which the manner. It is protracted or biased caution, regard due for and with exercise with must judge adversari- for clarification preference law the common interrogation. cross-examination, than judicial rather al do questions so that must be taken Particular care however, may restrain counsel say, a trial court That is not 3. otherwise sterile “breathing emotions "into life” with all its from words,” proceedings in the true context placing the or from otherwise Slocum, Pa.Super. 384 involved. See Commonwеalth of the lives 428, 441, 50, (1989). not usurp unduly or encroach upon finding fact function of the jury by suggesting judicial disbelief of particular or a testimony judicial opinion on one or more issues against for or one side or the other. Nonetheless, courtroom is a court of justice and not “[a] a just battleground tilting for of attorneys or a of testing their wits and so oratory, limit it would —to jeopardize often or defeat justice.” It is the of a purpose truth, criminal trial to ascertain the and it is the business of the trial to see that judge Thus, that end is obtained. proper it is for the trial questions court to ask about facts which did not appear from either counsel’s examination of Indeed, the witness. may go trial court so far as to recall a witness an supply proof omission of as to a to. material issue. cases, omitted).4 A.2d at 197 (collecting citations
The majority’s reliance upon Commonwealth v. Danzy,
(1973),
Johnson v. United 333 U.S. S.Ct. 92 L.Ed. added). (Emphasis 474-75 *13 1119(b). The Pa.R.Crim.P. with in accordance charge charge given “whether the opinion in the statement dicta, prece- of no choice,” plainly was the defendant’s by unaccompanied As the statement authority. dential nature, or origin, explaining authority or analysis any no I accord the dicta right, would supposed scope of this either. authority persuasive 333, 98 S.Ct. 435 U.S. Oregоn, v.
The decision Lakeside that federal (1978), made it clear 55 L.Ed.2d preclude to no to defendants right provided constitution instruction, over defendants’ an issuing from trial courts negative to draw a obligation not jury’s on the objections, not to right his exercise of from defendant’s inference expressly Oregon, supra, agree I that Lakeside testify. constitu- adopt were free to that the states acknowledged statutes, rules which procedural or state provisions, tional choices the defendants’ tactical the trial court to would bind however, that this agree, cannot in these circumstances. trial courts’ a restriction on the such may impose Court extending an inference expedient of by simple discretion decision, sug- itself prior contained from dicta restriction. impose such a legal no basis gested impose “rea- they the restriction considers majority trial court given by instruction I do not. The sonable.” I can point of law. applicable correctly here addressed defen- permitting by interest to be advanced public see no passing merit of upon the tactical dants to speculate addressing directly by the issue silence, rather than issue in If a regarding duty. their correctly instructing its jury bases and an uninstruсted wrongly defendant bets inference impermissible on the part or in whole verdict as defendant’s as well feared, public justice, the interests sacrifice interests, That is a be sacrificed. would personal prevent. every have trial courts grounds, majority policy disagreement My ground My primary here. however, secondary matter is a for this Court authority is the absence for dissent here, wheth- imposed by majority the restriction impose er or not such restriction would be if properly “reasonable” enacted by legislature, promulgated our Supreme Court, compelled or amendment to our Constitution. *14 legislature,
What this Court thinks our Supreme our Court or the do, citizens of the Commonwealth ought statutes, their authority with to enact promulgate procedur- rules, constitution, al and amend the is not law. As yet, general trial courts’ authority over the content of its jury instructions in Pennsylvania is unrestricted in this respect. This Court cannot alter that fact without some explicit basis of authority to do so. Neither nor the appellant, has majority, any identified such No statute or authority. cited; procedural rule is nor I opinion do read the majority here, to suggest right that the conferred i.e. to elect wheth- er or not an instruction is given jury’s on the not to duty nеgative draw a inference from the defendant’s exercise of his not to testify, is by Pennsylvania mandated Constitution. Had the indicated majority that it intends to “constitutionalize” this supposed right, and render thereby it immune from or statutory procedural abrogation or re- striction, I would vigorously even more dissent. I find nothing in our Constitution which could be construed to provide such a “constitutional” right.
Appellant, like the majority, has based the bulk of his
argument on the illusory
from
authority
dicta
Dan-
cites, however,
zy. Appellant also
Fleck,
(1988),
372 Pa.Super.
In Commonwealth v. supra, panel this Court simple reversed a assault conviction because a trial court judge prevent dared to intervene to a jury having from chose between the false dichotomy of an absolute acquittal or a conviction of simple by unprovoked attack, assault when the evidence presented plainly at trial suggested the of a the lesser alternative offense of simple by assault mutual assent. The panel found that the trial judge had functions instruct- prosecution defense and usurped both on thе lesser crime. at ing sponte, the jury, sua that “uninvited argues that Fleck demonstrates Appellant strategy” trial court “is interference defense with (Appellant’s Brief at not tolerated” this Commonwealth. 16). to distin- responds by attempting The Commonwealth Fleck, or guish majority makes no reference Fleck. conflicting positions appellant Common- case. as to its to this applicability wealth precisely I involves agree appellant with that Fleck authority a trial court’s as upon same kind of restrictions here. urges majority imposes and the While appellant agree also the Commonwealth that the restrictions stringent here far than those involved in forged are more than *15 Fleck, degree I find the difference is one of rather Rath- merely distinguish kind. I am not inclined to Fleck. er, sweep- the expressly unequivocally and disavow would Fleck, regarding the in the ing language panel of decision instructing in in this en banc juries, role of a trial court case. Perrone, 348, 472 Pa. panel in Fleck cited Hrivnak v. 102, Musi, 486 Pa. (1977), v.
Both and Common- Wescott, allegations of supra, involved ineffective wealth v. failure to seek of counsel based counsel’s assistance cases, lesser included offense instructions. both decision not to seek the instruction was deemed to counsel’s a basis. That such a decision have had reasonable tactical tactical, however, way in no be deemed to have been could right to compel the existence of a concomitant establishes in defense counsel’s tactical acquiesce the trial court to a right, to establish such then choice. If was sufficient of powers over the conduct supervisory the trial court’s Counsel, at an end. for various trials would soon be reasons, not to raise to obvious objections tactical elect (as, exam- other inadmissible evidence for hearsay plainly or to thereby “open-the-door” а ple, permit plaintiff evidence). Certainly otherwise inadmissible other defense remove the trial court’s tactical decisions could not such to exclude inadmissible authority objection act without King, supra; Common- evidence. See Commonwealth Grove, The existence of a tactical basis supra. wealth v. of positive a decision does not establish the existence a for simply are not advantage sought; concepts right Consequently, reliance on necessarily mutually inclusive. misplaced. Musi Musi and Westcott Fleck was of tactical decided the existence basis only Westcott not the charge question, not to seek the jury counsel charge, from giving the trial court sua preclude sponte. theory instructing jury on of the lower court did err and reckless misconduct. wanton scope particularly the limited accorded at 305-06. I note construing precedent Perigo this Court. Rather than
Hrivnak sanctity supposed counsel’s as a bold affirmation Hrivnak decisions, type Perigo to involve a construed Hrivnak tactical introducing liability arguably raised estoppel theories restriction on evidence, plainly pleadings but contradicted by plaintiffs and defense provides light, Hrivnak Viewed in such plaintiff’s evidence. Fleck, entirely inapposite here. and is support for the decision in no *17 300 Donaldson,
Commonwealth v. Fleck supra, in was cited in support suggestion usurpation prose- of the of an of the Donaldson appeal cution’s function. involved an from an sponte amending sua order criminal at charges prelimi- nary hearing, dismissing greater charge, substituting a similar lesser charge with elements. 488 A.2d different I agree prosecution at 640-41. has broad discre- pursue, tion in and that the trial deciding charges prosecutor’s court not circumvent authority charges choose which instructions on pursue crimes, uncharged regardless actually what the evidence presented might suggest regarding the existence of other Porrecca, Commonwealth v. offenses. uncharged 389 Cf. 553, 8, 1044, 568-569 n. 567 A.2d n. Pa.Super. & 1050-52 & Schmuck, Commonwealth v. (1989); 617, Pa.Super. 8 385 1, 1263, (1989). n. 1267 n. 1 & & decision Donaldson circumscribed, however, The in precedent well established that an indictment or information all contains lesser included offenses implicitly See charges set forth the indictment or information. Pemberth, of Pa.R. signature requirement Donaldson Crim.P. which was the cornerstone of decision, require prosecution separately does not offenses, empower set forth lesser included nоr does it juries by prevent to force false dichotomies on prosecutors ing instructing juries regarding arguably appli from judges lesser included offenses. cable Fleck could be or not the result reached Whether supported by Donaldson would then turn on whether 2701(b) Pa.C.S.A. was a lesser included offense of 18 § 2701(a). Resolution of that is not question Pa.C.S.A. § here, is an necessary necessary here. What acknowl- edgement very limited nature of the restriction which Donaldson 225 impose. Pa.R.Crim.P. Fleck, I find no
Upon review of the authorities cited
legal
imposition
upon
basis for the
of the restrictions
language
trial court’s
jury charging authority which
I would disavow the restric-
opinion suggests.
the Fleck
bind the trial court to defense
tions
Fleck which would
*18
decisions, and
not extend
prosecution
and
tactical
would
in
to reach the scenario involved
this case.
them
suggested in
are incon-
I note that the restrictions
Fleck
in
example,
of this
For
prior
sistent with
decisions
Court.
Grove,
found no error
supra,
v.
Court
Commonwealth
regarding
to instruct the jury
in the trial court’s decision
Act,
objec-
counsel’s
Slayer’s
sponte,
sua
over defense
Likewise, in
v.
tions.
I could cannot see how and Franklin the rationale of non-interference defense withstand prosecutorial charging authority espoused tactics and Fleck, again majority. and here Either a trial court instruct the may jury sponte applicable principles sua forth, law, and I may majority or it not. The has not set discern, principles permit cannot which would any unifying as in sponte a trial court to determine when it act sua Davis, Grove, Franklin, and and when it is bound either Fleck, as in prosecution’s defense or “tactical” decisions again in this case. solid by returning ground. I would evade this morass charging court’s would reaffirm that the trial discretion only in criminal cases is limited sponte sua following respects:
1) point applicable must address a law the instruction v. charged, or crimes Commonwealth the crime 641-42; Donaldson, 488 A.2d at supra, 2) applicable address a law point the instruction must trial, presented actual facts at Commonwealth and, 378; Grove, A.2d v. at supra, must 3) form, content, of the instruction delivery correctly, impartially explain point fully, Alvin, supra, addressed. Commonwealth law at 381. restrictions, authority I find for this Court no Beyond these ought how a be instructed supplant its view as to trial court. that of the am carefully I note I have reviewed and
Finally, *19 of our states unpersuaded the decisions sister completely authority. appel- cites While appellant persuasive which as error, cases found and only lant cited which reversible did responded by citing only cases which Commonwealth not, from jurisdictions I are numerous cases note that there variously have that a country across the which held instruction, not to jury’s duty objection, over defense of from a defendant’s exercise negative draw a inference 1) 2) not right required; proper, is: but testify not 4) recommended; 3) improper, not but required; proper, but error; 5) not error improper, not reversible but reversible case; 6) and given particular improper the facts case; 7) particular the facts of the given error reversible Annotation, error. impropеr generally and reversible See And Prejudicial Under Propriety Griffen California No Instruction That Unrequested Effect of Inferences His To Be Drawn From Failure Against Accused Should (col- (1968 1989 Supp.) 18 ALR3d 1335-39 & Testify, cases). position. Id.6 lecting majority There is no clear in of the alter- Having surveyed the decisions favor above suggest presence “majority" way absence of a I no or persuasiveness reasoning position dispositive. It is the simply opinions of a sister states’ courts rather than the number decisions, opinions gives persuasive sister or denies such state authority. I positions, opinion only position nate remain of the degree not “proper, required,” expresses i.e. but required deference to a trial court’s sound discretion of an court in appellate intermediate such matters. error, I
In of the fact that would find no I of course light challenged charge concur in the determination that the did prejudice appellant this case. Based on the fore- I going, opinion, Dissent to the majority’s Concur only. the Result
JOHNSON, Judge, concurring dissenting: I in complete agreement am with the that where majority specifical- a criminal defendant does not take the stand and ly requests upon that the court not comment his or her silence, ignore request it is error for the court to instruction I give regarding right to remain silent. dissent from the respectfully majority determination of the that the error was harmless under the of this facts case. I
Initially, question whether the court’s estab- objective lishing upon the rule that the court not comment defendant’s not to after a that it not do testify request so is not substantially compromised a harmless by applying error standard. am not at all sure that the effect upon the outcome of trial of a fifth amendment instruction can Regardless whether, ever be discerned. prior to an instruction, jury contemplated silence, the defendant’s assuredly brought most this silence is attention jury’s *20 once an instruction is given. Where the instruction has given explicit been over request, very purpose the protect rule to the defendant’s ability to control the course of his defense is undermined. recognize
We must that the in error here stands a differ- cases, ent posture than most that we review. In most court commits an error to which the defense then objects. inures, Some if in prejudice ordinarily even de minimis Thus, character. into whether the error inquiry was error, harmless is appropriate presum- because the while unavoidable,, have one that affected may been ably verdict. de- contrast, situation where the we now address a
By request makes his or her known advance. Without fense fifth request give the court not explicit counsel’s instruction, such a no error exists. Where amendment made, all to the defendant request prejudice many it. From the by honoring entirely simply avoided a fifth amendment of other which jurisdictions cases request to the defendant’s given contrary instruction error, ignoring find few situations considered trial court In the cases in which the request proper. defense, by its own ignored request, the defendant’s Hunter actions, request superfluous. had rendered the State, 492 N.E.2d (Ind.1986), a defendant fifth co-defendant’s have a amend- request his objected court, observing The co-de- instruction. ment upon request, offered fendant was entitled to an instruction solution, trial. The defendant refused sever the in the no choice but to instruct the leaving court to remain silent over the defendant’s joint trial Larson, (Minn. In State v. 358 N.W.2d objections. argument 1984), during closing reference defense counsel’s necessary requested to the defendant’s silence made instruction. exist,
However,
circumstances
we
vitiating
if no such
for the
responsible
that the court alone is
ignore
cannot
message
wе send to the trial courts what
error.
suggests that
the trial
today
requiring
decides
majority
not to have a fifth
request
to honor the defendant’s
court
no
there is scant
import
has
unless
amendment instruction
reason, I
For this
would
conviction.
support
evidence
Maryland
of our sister states of
approach
favor
State,
(1989)
Hardway v.
317 Md.
Buiel,
The
articulates the harmless error
majority correctly
However,
standard.
at 285-287.
Majority Op.
majori-
of Com-
requirements
then fails to follow the
ty’s analysis
391,
(1978).
Story,
monwealth
476 Pa.
It is challenged irrelevant that the defendant has not sufficiency of the evidence or that the evidence is in fact sufficient to sustain An analysis upon the verdict. based is an sufficiency entirely evidence different process very which its nature considers evidence has no place determining whether an admitted error is light harmless. “While we in the most view evidence favor- in testing able to the Commonwealth and thus sufficiency, ambiguities resolve in the disputes Commonwealth’s favor, testing overwhelming, ... whether evidence those same crucial to the ambiguities disputes are determination of the result compelled whether evidence 295, 307, Cherry, reached.” 474 Pa. n. n. 12 complainant’s case consisted of the Commonwealth’s *22 corroborating of testimony the two witnesses testimony, alleged testimony told of the complainant rape, that the the report, physical the who took the evidence of officers bloоd; sperm complainant the of the showing presence of this incident. To show menstruating at the time was non-consensual, the complain was that sexual intercourse point. that to have sex at knife ant testified she was forced e defens was The knife never recovered. Rasheed’s was the The did not contest evidence save any consent. defense corroborating of wit complainant’s testimony that one ness. first testimo- corroborating
The of the witness’ substance However, of rape. told her the ny complainant was that cross-examination, first defense counsel elicited on contrary an to her own in-court investigator, witness told her complainant persuaded of the who testimony behalf N.T., rape. knew about the nothing that she testify, addition, both counsel 1987 at 30-31. September stipulation prepared into a that the defense was entered effect. investigator of the this produce testimony Thus, N.T., 17, 1987 at 54. this evidence was September Story, under fact contradicted and cannot be considered supra. corroborating which remains is the second evidence him she told complainant testimony
witness’ testimony complainant regarding and the raped attack, respect uncorroborаted actual this Unquestionably, compulsion. the element forcible the complain the sole accepts testimony Commonwealth v. Commonwealth rape. ant as evidence of sufficient alloc. (1988) Gabrielson, Pa.Super. 536 A.2d (1988); Commonwealth denied 518 Pa. 162, 460 What Flynn, overwhelming testimony is evi question whether harmless error. establishing context of rape dence of I must whether overwhelming, question then Even if it is the defendant’s upon focusing jury’s attention error silence and as a result inadvertently alluding to an absence under credibility circumstances in which that credibility is crucial determination, to the jury’s beyond is harmless reasonable doubt.
I am not complainant’s convinced that testimony, whether considered her through eyes or those of the second witness, evidence; constitutes overwhelming its de- validity pends solely upon complainant’s There is believability. no physical evidence to complainant’s corroborate the asser- tion that And, the defendant had a knife. as is the case in rape incidents, most there were no witnesses to the attack and no witnesses could otherwise testify to the defendant’s intent to have forcible intercourse complainant. with the
By finding that the uncorroborated testimony *23 complainant is overwhelming, we in effect act as trier of fact, judging from a cold record that the victim’s testimony was so convincing that jury the would have found the court, defendant even if guilty instruction, the its had not made them aware that the defendant did not testify his own behalf. A jury faced with the of testimony the complainant and the court-underscored silence of the defen- dant well may accord more weight to the complainant’s testimony. a Considering prosecutor’s improper comments
on a defendant’s pre-trial silence Commonwealth v. Turner, 579, 583, Pa. (1982), the supreme court observed:
“We would be naive if
recognize
we failed to
that most
laymen
view
assertion of the Fifth Amendment
privilege as a badge
guilt.”
of
Walker v. United
(5th
States
Cir.1968)],
F.2d 900
...
It is clear
[404
privilege against self-incrimination would be
“[t]he
reduced to a
if
mockery
hollow
its exercise could be
taken as equivalent either to a confession
guilt
or a
conclusive presumption of perjury.” Slochower v.
Board
Higher Ed.
N.Y.
U.S.
76 S.Ct.
[350
637,
Commonwealth v. 449 Pa. 296 A.2d (citations (1972) omitted). refers to the defen- prosecutor improperly Where the silence, harm to the defendant occurs pre-trial dant’s error, because, had not been aware that until rights to exercise his fifth amendment the defendant choose prosecu- silent. Where thе court and not by remaining silence, in-court upon tor the defendant’s comments from necessarily not flow harm to the defendant does has chosen not to testi- that defendant jury’s unawareness from the awareness that fy, jury’s heightened but rather In latter chosen to remain silent. the defendant has case, of the error it is difficult to evaluate the effect more However, precisely trial. it is because upon the outcome of this effect that there exists we are unable evaluate the error could have affected the reasonable possibility trial’s outcome. and defen- of the victim credibility cases in which determination, trial court pivotal
dant are the more it does not make should be all cautious credibility reflect of either. upon statements which C.f Anskate, 221 testify, nobody asserts Rasheed did credibility. his directly upon court commented that the trial However, argument that the sense to Rasheed’s there is fifth not to on his amendment court’s instruction testify, that he did not the fact testify highlighted guilt confession of or conclu- “a triggered turn have Turner, in the perjury”, supra, jury’s presumption sive *24 that corroborating the evidence mind. Given lack compulsion, I am unable to con- forcible incident involved still the would beyond jury a rеasonable doubt that clude reminded if it had been guilty have found the defendant I trial. would remand for new defendant’s silence. the Hence, my dissent.
CIRILLO, Judge, dissenting: President has I I that Rasheed waived respectfully dissent. believe the trial court committed reversible the issue whether of defense objection over the charging jury, the error unfavor- and that no testify have to counsel, he did not failing to him for against drawn should be inference able testify.1 following: Attorney the record reveals
A review of the Rasheed, any not make did Goodman, counsel Mark charge prior the regarding jury the record request on However, charge. the gave the trial court time that the charged Klein Charles after the Honorable instruction, following ex- fifth amendment gave place: change took alter- Gentlemen, discharge I before
THE COURT: case, if there is anything I ask you in this jurors nate distorted, misstated, omitted, or over- I have believe you Mr. Goodman? charge jury? in my looked Honor, some- is thing, Your only MR. GOODMAN: earlier, can’t undone now. we discussed thing record, is I and that like to it on the put But I would on the charge us not to earlier to allow asked the Court it is I done that because have testifying. defendant not than actually prejudicial more charge that the belief my I dо very strongly, I feel nothing being said. denied listened to me and The Court had routinely. fairly the Fifth and instructed on ahead request went my that, I There Amendment, object. And for anyway. aside say I I think of that would want nothing that can from that. add, Your Honor. nothing I have
MR. McMONAGLE: Goodman, has Well, the defendant Mr. THE COURT: to take He does not have rights. certain Constitutional the law to stand, pointed out and have the witness at subject your on that charge If I did not on that. appeal as presents issue on Rasheed instructing jury, defense over trial court err Did not trial, where regard appellant’s silence at objection, premised a reasonable was objection instruction to said defense testify, and appellant’s failure to strategy emphasizing of not Court, banc, holding en conformity of this with the given charge is is the Danzy, that "whether Commonwealth choice”? defendant’s *25 that great possibility there when request, would be over, convicted, that then would be you if he is there- assistance of counsel. So charged with ineffective of the law on that fore, simple I have a statement subject.2 21, 1987, Rasheed jury guilty the found September
On Judge an instrument of crime. possession rape his to file motions post-trial Klein notified Rasheed of in Rasheed’s written not contained anything and stаted September be waived. On motions would post-trial filed motions. These post-trial Goodman attorney however, regarding jury include a claim motions, did not 2, 1987, post- supplemental instruction issue. On October attorney filed trial motions were Goodman denying court erred in his Rasheed claimed that the trial fifth instruc- the court omit the amendment request to have post-trial The charge. supplemental from its jury tion instruction that the fifth amendment motions also stated testify did not the fact that Rasheed merely emphasized Further, these motions stated extremely prejudicial. attorney standing object had no prosecutor that the the instruction omitted. request to have Goodman’s attorney to indicate that Goodman record shows nothing mo- supplemental post-trial to file permission requested mo- post-trial Rasheed filed January tions. On motions, original post-trial like the se. These pro tions Goodman, include any did not by attorney motions filed issue. instruction regarding claim post-tri- held on transcript hearing A of the review raised, among attorney' reveals that Goodman al motions conclusion issues, issue. At the instruction other text, attorney contain the record before us does not 2. As noted in the Judge request Klein omit the fifth amendment to hаve Goodman's However, jury. Judge charged prior Klein to the time instruction Judge exchange among Klein demonstrates counsel and through perhaps request, his attorney did make such Goodman charge record. Because I points or in a discussion off the written properly preserved appeal has not been the issue on believe procedure, delve into whether through post-trial motion I will not during preserved trial. properly issue was raised post-verdict trial court denied all mo- hearing, *26 Judge noted that he opinion, specifically In his Klein tions. motions, filed post-verdict those denied both sets With those filed defense counsel. Rasheed se and pro issue, Klein stated the Judge the instruction respect jury following: at argument [tjrial [¡'Judge
At the
of the
before the
time
com-
prior
sentencing,
defense counsel
hearing
the
charge,
instructing
court
the
his
plained about the
respect to defendant’s deci-
objection,
over counsel’s
the witness stand in his
defense.
sion not to take
own
written
objection
Counsel did not include this
his
must
as
objection
motions. The
post-verdict
therefore
appel-
been waived and cannot
considered
having
for
added)
(emphasis
lant relief,
the
Klein did not consider
appаrent
Judge
It
that
issue.
that the jury
merits of the
instruction
believe
waived,
post-
although supplemental
issue is
for
instruction
filed,
permission
were filed without
they
trial motions were
them.
the trial court did not consider
from the court3 and
613,
365
530 A.2d
Pa.Super.
v.
See Commonwealth
Sheaff
655,
Had dissenting concurring the well-reasoned joined have by Judge authored Johnson. opinion WEAVER, Deceased Sur H. In re ESTATE OF John Trust, H.W. Macklin. John Shute, Farrell, MACKLIN, Eliza Appeal M. Macklin of Flora F. Bank, Accountant, Macklin, Fidelity Stacey Linda S. beth Paro, Marini, L. Macklin Macklin Vivian Valerie Macklin Burns. Megargee, and Floranne Macklin Pennsylvania. Superior Court of Argued May 1989. 28, 1990.
Filed March Appeal Petition for Allowance Aug. Denied