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decided: March 21, 1967.


Appeal from order of Superior Court, Oct. T., 1965, No. 521, affirming judgments of Court of Quarter Sessions of the Peace of Lehigh County, April T., 1964, No. 78, in case of Commonwealth of Pennsylvania v. Joseph J. Dravecz.


Michael V. Franciosa, for appellant.

Frederick I. Charles, Assistant District Attorney, and George J. Joseph, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Jones, Mr. Justice Cohen and Mr. Justice O'Brien join in this opinion. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Musmanno

[ 424 Pa. Page 583]

Joseph J. Dravecz was employed as a laborer by the Caisson Corporation which owned a trailer in which were stored many items of equipment being used on a construction job near Airport Exit No. 22 in Lehigh County. Some of this equipment disappeared and part or all of it was found on a farm owned by the parents of Dravecz. A couple of days later State Police questioned a Eugene Stockley, labor foreman for the Caisson Co., who gave the police a signed, notarized statement in which he said that Dravecz had appeared on a certain day at Stockley's residence with some of the missing Caisson equipment and asked Stockley to sell the equipment for him. When Dravecz learned of the visit to his parental home by the police, he voluntarily

[ 424 Pa. Page 584]

    appeared at State Police headquarters and submitted himself to questioning by Corporal Poluka. He denied that he had taken the tools or was in any way criminally connected with them.

Corporal Poluka then brought Stockley before Dravecz and read to Dravecz the written statement which had been made by Stockley. Dravecz made no comment at the end of the reading of the statement. He was indicted on charges of burglary, larceny and receiving stolen goods, and found guilty on the three counts. He appealed to the Superior Court which affirmed the conviction and we allowed allocatur.

At the trial the statement made by Stockley was read to the jury. The defendant contends this was error and deprived him of his constitutional rights against self-incrimination under the Fifth Amendment to the Constitution of the United States.

The Supreme Court of the United States declared in Malloy v. Hogan, 378 U.S. 1, that:

"The Fourteenth Amendment secures against state invasion . . . the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence."

Thus, in speaking of the right of a defendant against self-incrimination in Pennsylvania, it is no longer necessary to distinguish between State and Federal cases. The protection against self-incrimination because of the 14th Amendment which guarantees to all United States citizens, no matter where located, the immunities proclaimed to them in Federal territory, applies as effectively in Pennsylvania and the other States as it does in territory actually under the jurisdiction of the United States government.

It accordingly follows that all cases which were decided in Pennsylvania prior to the Malloy decision are no longer authoritative if they conflict with the Fifth

[ 424 Pa. Page 585]

Amendment to the Constitution of the United States, which declares that no person "shall be compelled in any Criminal Case to be a witness against himself."

The Superior Court, in affirming the conviction of the defendant, declared that it was bound by Commonwealth v. Vallone, 347 Pa. 419, which pronounced the proposition:

"The rule of evidence is well established that, when 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 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."

This rule, which has become known as the tacit admission rule, is too broad, wide-sweeping, and elusive for precise interpretation, particularly where a man's liberty and his good name are at stake. Who determines whether a statement is one which "naturally" calls for a denial? What is natural for one person may not be natural for another. There are persons possessed of such dignity and pride that they would treat with silent contempt a dishonest accusation. Are they to be punished for refusing to dignify with a denial what they regard as wholly false and reprehensible?*fn1

The untenability of the tacit admission rule is illustrated in the following startling proposition. A defendant

[ 424 Pa. Page 586]

    is not required to deny any accusation levelled at him in a trial no matter how inculpatory. He may be charged with the most serious of offenses, including murder and high treason. A cloud of witnesses may testify to circumstances, events, episodes which wrap him in a serpent's embrace of incrimination, but no inference of guilt may be drawn from his failure to reply or to take the witness stand. Indeed, and properly so, if the prosecuting attorney or the judge makes the slightest reference to the fact that the accused failed to reply to the accusations ringing against him, and a verdict of guilt follows, a new trial is imperative. And yet, under the Vallone holding, an accusatory statement made in any place ...

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