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January 21, 1958


Appeal, No. 137, April T., 1957, from judgment of Court of Quarter Sessions of Allegheny County, Dec. T., 1954, No. 34, in case of Commonwealth of Pennsylvania v. Alexander Salkey. Judgment reversed.


Alex Salkay, appellant, in propria persona.

William Claney Smith, Assistant District Attorney, with him Samuel Strauss, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 185 Pa. Super. Page 150]


In the latter part of 1952 a new electric generator was bought by Gunner Nelson, a carpenter, from the manufacturer, the Homelite Company. On May 14, 1953, it was housed in a locked truck, together with Nelson's other carpenter tools. After 1:30 a.m. on that date the truck was broken into and the generator, along with other tools, was stolen from it. On August 1, 1954 the defendant sold and delivered the generator to Clarence Maneer at his gasoline station in McKeesport. The consideration paid to the defendant was Maneer's check for $50 and the transfer to him of the title to an old Ford automobile worth $75. Sometime later when Maneer was informed that the "light plant" was stolen property, he notified the police, who then took possession of the generator. The defendant was arrested and on November 18, 1954, was charged with burglary, larceny and receiving stolen goods.

[ 185 Pa. Super. Page 151]

The generator, when it came from the factory, had been painted a "bright silver" and was mounted on springs attached to two skid runners. When bought by Maneer the springs and the runners had been removed and wooden blocks substituted; it also had been repainted a blue-gray color. A small plate bearing the manufacturer's serial number had been removed from the housing but from other concealed numbers the manufacturer identified the generator as the one sold to Nelson, from whom it had been stolen; Nelson also testified that it was his. At the close of the Commonwealth's case all that was proven was possession of the generator in the defendant on August 20, 1954, one year and three months after it had been stolen. And all of the charges of the indictment rested upon the fact of the defendant's possession of the generator. At the close of the Commonwealth's case the court sustained demurrers to the burglary and larceny counts, and the trial proceeded on the charge of receiving stolen goods; the defendant was convicted on that count alone. Sentence however was suspended on May 15, 1957, and defendant was placed on probation for a period of five years. In this appeal he contends that the court erred in refusing his motion in arrest of judgment and, alternatively, in refusing a new trial.

In the course of the trial the defendant was prejudiced in a number of respects. Officer Beggs testified that after he made the arrest the defendant did not "offer any explanation." Commenting on this testimony the trial judge in the charge to the jury said: "The exact question [put to the officer] as the Court has it here is: 'Did you arrest this defendant?' and the witness Mr. Beggs replied, 'That I did.' The next question was: 'Did he offer any explanation?' and his answer to that was: 'No, sir, he didn't.' Now, in that regard, Members of the Jury, I might say, is it the

[ 185 Pa. Super. Page 152]

    usual, or would you say, is it the usual reaction of a person who is accused of having committed a theft to remain silent, or should he have given some explanation as to how he acquired possession of that article. You will take that into consideration along with all of the other testimony in this case and keep it in mind in arriving at your verdict." This instruction implied that the defendant's failure to make an explanation at the time of his arrest, could be taken as some evidence of his guilt. This was highly prejudicial error. The rule of Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 applies only to accusatory statements made to a defendant not denied by him. The principle of that case cannot be extended to render harmless the above instruction; there is no obligation on one to speak at the time of his arrest in explanation of his conduct in relation to the crime for which he is taken into custody.

So also the court, in commenting on the defendant's motion for his discharge on demurrer, stated to the jury that by the demurrer the defendant admits the facts as proven by the Commonwealth. In law the demurrer does not admit the truth of the Commonwealth's evidence "except for the purpose of deciding upon the demurrer." Commonwealth v. Heller et al., 147 Pa. Superior Ct. 68, 24 A.2d 460. The jury were not informed as to this important ...

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