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COMMONWEALTH EX REL. SHADD v. MYERS (10/07/66)

decided: October 7, 1966.

COMMONWEALTH EX REL. SHADD, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1965, No. 5109, in case of Commonwealth ex rel. Ronald Shadd v. David N. Myers, Superintendent.

COUNSEL

David C. Harrison, for appellant.

John A. McMenamin, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen concurs in the result. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 423 Pa. Page 84]

On May 19, 1960, the appellant, Ronald Shadd, was convicted by a jury of murder in the first degree and sentence was fixed at life imprisonment. Admittedly, throughout the proceedings, Shadd was represented by very competent court-appointed counsel. A motion for a new trial was duly filed and later withdrawn. Sentence was then imposed in accordance with the jury's verdict. No appeal from the judgment was filed.

In October 1965, Shadd instituted an action in habeas corpus which the court below dismissed. An appeal from that order is now before us.

In this collateral attack upon his conviction, sentence and confinement, Shadd's prime contention is, that constitutionally tainted evidence was improperly admitted against him over objection at trial which constituted a denial of due process.

[ 423 Pa. Page 85]

The crime involved the fatal beating of one Albert J. Wahl during the burglary of a commercial store, which he managed in the city of Philadelphia. Shadd and one Felder were taken into police custody and questioned concerning participation in the crime.

The challenged evidence, which it is now asserted was received at trial in violation of Shadd's constitutional rights, consisted of testimony elicited from police witnesses, which may be summarized as follows:

During questioning, Felder made oral statements to the police, which were typewriter recorded, wherein he stated that he and Shadd committed the burglary and that he (Felder) held Wahl while Shadd beat him over the head with a rock. Shadd was then confronted with Felder in the presence of police investigating officers. One of the latter informed Shadd in detailed fashion of Felder's admissions and accusations. Shadd was asked if he had anything to say. He remained mute and made no denial.

This testimony was admitted in evidence as proof of a tacit acquiescence on the part of Shadd in the truth of Felder's statements. Pennsylvania has long adhered to the rule of evidence that when a statement made within the hearing and in the presence of a person (except in judicial proceedings) is incriminating in character and naturally calls for a denial, but is not challenged by the accused despite full opportunity and liberty to speak, the statement and the fact of his failure to deny are proper evidence of an implied admission of the truth of the accusatory statement. See, Commonwealth v. Vento, 410 Pa. 350, 189 A.2d 161 (1963); Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527 (1959); Commonwealth v. Bolish, 381 Pa. ...


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