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COMMONWEALTH EX REL. STAINO v. CAVELL (03/24/66)

decided: March 24, 1966.

COMMONWEALTH EX REL. STAINO, APPELLANT,
v.
CAVELL



Appeal from order of Court of Common Pleas of Schuylkill County, July T., 1965, No. 195, in case of Commonwealth ex rel. Ralph Staino, Jr. v. A. C. Cavell, Superintendent.

COUNSEL

David N. Savitt, with him John Patrick Walsh, for appellant.

C. J. Friedberg, Assistant District Attorney, with him H. W. Lightstone, District Attorney, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J., Supporting the Affirmance. Opinion by Wright, J., Concurring in Affirmance. Dissenting Opinion by Hoffman, J. Joinder by Montgomery, J., in the Dissenting Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J., Concurring in Part With Hoffman, J.

Author: Per Curiam

[ 207 Pa. Super. Page 275]

The six judges who heard the argument of this appeal being equally divided in opinion, the order of the court below is affirmed.

Disposition

Order affirmed.

Opinion by Ervin, P. J., Supporting the Affirmance:

This is an appeal from an order of the court below dismissing appellant's petition for a writ of habeas corpus. It is the second time the case has been before us. In Com. v. Staino, 204 Pa. Superior Ct. 319, 204 A.2d 664 (allocatur refused by the Supreme Court, 204 Pa.

[ 207 Pa. Super. Page 276]

Superior Ct. xxxvii), we affirmed the conviction of this defendant on a charge of burglary.

At the trial the tacit admission of the defendant, Staino, to a signed confession of a confederate, Robert Poulson, implicating the defendant, was admitted into evidence after five police officers testified that the defendant remained silent after the confession was read to him. This evidence was received under the well established Pennsylvania doctrine of tacit admissions: Com. ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527; Com. v. Vallone, 347 Pa. 419, 32 A.2d 889; Com. v. Ford, 193 Pa. Superior Ct. 588, 165 A.2d 113; Com. v. Gomino, 200 Pa. Superior Ct. 160, 188 A.2d 784.

The appellant now asks us to reverse this principle of law. It would be sufficient for us to say that we could not do so. Any such request must be made to the Supreme Court of this State. We are obliged to follow this principle of law, as was the court below.

There was ample evidence in this case, aside from the tacit admission of the defendant, that he participated in the burglary of the home of John B. Rich in Pottsville on August 7, 1959. Richard Blaney took the stand and testified that he had a conversation with the defendant at the Colony Motel in Atlantic City in the middle of August 1959 in which Staino admitted that he had taken part in this burglary.*fn1 Blaney was subjected to a severe cross-examination but held his ground.

Additional supporting evidence was given by Alfred Ronconi and Jerry Joseph Guarcini. Ronconi, manager of an automobile repair shop in Philadelphia, had known the defendant Staino, having done repair work on his automobile. He testified that during January

[ 207 Pa. Super. Page 277]

    or February 1960 Staino brought a "shirt box" containing money to his shop and told him "he would like to have the contents exchanged into hundred dollar bills." They went to a nearby bank together. While Staino waited outside, Ronconi entered the bank and presented the box to a teller, Guarcini, with the request that he "exchange the money" in the box. When the teller discovered that the box contained more than $10,000 he told Ronconi that he would exchange only $10,000 of the money in the box for one-hundred dollar bills because "bank transactions in excess of that require a signature." Ronconi directed the teller to exchange only $10,000 of the money and the teller did so, handing Ronconi $10,000 in hundred dollar bills and the box containing the unexchanged money. Ronconi then left the bank and delivered the $10,000 and the box to Staino, who was waiting in his automobile. Guarcini, the teller of the bank, took the stand and confirmed this transaction.

There was also testimony that Staino purchased an automobile on October 31, 1959 for $3,300 and paid the purchase price with thirty-three one-hundred dollar bills.

When two investigating police officers examined Mr. Rich's home following the discovery of the burglary, they found that nothing had been disturbed in the upper floors of the house except for two beds from which two pillow cases had been removed. This testimony strikingly supported the recital in the Poulson confession that "we got the money in a carryall bag and two pillowcases. . . ."

To grant a new trial in this case would be a waste of precious judicial time. Our courts have been deluged by the flood of cases arising out of recent decisions of the Supreme Court of the United States greatly extending the function of the writ of habeas corpus. Crime has greatly increased as a result of judicial leniency.

[ 207 Pa. Super. Page 278]

Opinion by Wright, J., Concurring in Affirmance:

As District Attorney, I secured a number of convictions by use of the tacit admission doctrine.*fn1a This was more than a decade before the decision in Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889. The Superior Court is required to follow the Vallone case. If the tacit admission doctrine is to be repudiated, it must be accomplished by action of the Supreme Court.

Dissenting Opinion by Hoffman, J.:

I dissent. It is true that the doctrine of tacit admissions has not been abrogated by the Supreme Court of Pennsylvania. Nonetheless, recent decisions of the United States Supreme Court raise serious constitutional questions which have never been considered by our highest state court. We would be remiss in our duty as an appellate court if we failed to consider the constitutional validity of a rule of evidence which was approved prior to these recent decisions.

At the hearing on the habeas corpus petition, the following facts were established: Appellant, assistant manager of a night club in Philadelphia, was arrested by approximately fifteen police officers at 1:00 a.m. on Sunday, April 3, 1960. He was surrounded outside of the club by the officers and was shoved into the back seat of a car between two of them. Then he was handcuffed to one of the officers and was driven sixty miles to the Police Barracks in Reading. During the trip the officers neither spoke to appellant nor informed him of the reason for the arrest.

At the Reading Barracks, appellant was placed in a small room with four policemen and a captain of police. The captain advised appellant that he need say

[ 207 Pa. Super. Page 279]

    nothing, and that anything he might say would be used against him at trial. Appellant was then confronted with an oral statement allegedly given by one Robert Poulson which implicated him in a burglary. [For the contents of the statement, see Commonwealth v. Staino, supra, pp. 323-325.] Throughout the recitation appellant remained mute or periodically said, "I have nothing to say."

Subsequently, at about 6:00 a.m. Sunday morning, appellant was handcuffed and driven to the Pottsville Court House. Several hours later he was brought before an alderman. At that hearing appellant was not advised of his right to counsel and stated only that he had nothing to say.

After the hearing appellant was taken to the Schuylkill County jail. At about 10:00 p.m. that night the same captain of police awakened appellant and again advised him of his right to remain silent. The captain then read to appellant a signed statement of Robert Poulson which implicated appellant in the burglary. Appellant repeatedly stated, "I have nothing to say" or remained mute.

At appellant's trial the Poulson statement was admitted as evidence of appellant's tacit admission to the incriminating material contained therein on the authority of Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 (1943). It is the admissibility of this evidence which is the subject of my dissent.

The Pennsylvania rule as established in Vallone is: "[W]hen a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made." p. 421.

[ 207 Pa. Super. Page 280]

The Vallone decision, however, was not accepted unanimously by our Supreme Court. Even while the majority was fashioning the Pennsylvania rule, Mr. Chief Justice Maxey, in one of the most penetrating dissenting opinions contained in our State Reports, ...


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