Appeal from order of Superior Court, Oct. T., 1965, No. 837, affirming 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.
David N. Savitt, with him John Patrick Walsh, for appellant.
W. D. Hutchinson, Assistant District Attorney, with him H. W. Lightstone, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this dissenting opinion.
On the evening of August 7, 1959, the home of one John B. Rich in Pottsville, Schuylkill County, was burglarized and both cash and jewelry were stolen.
On Sunday, April 3, 1960, at approximately 1:00 a.m., Ralph Staino, Jr., was taken into custody in Philadelphia by State and Philadelphia police officers. Staino was placed in an automobile, handcuffed to a police officer and taken to the State Police Barracks at Reading, Berks County. At approximately 4:00 a.m. on the same date, while Staino was in the Reading State Police Barracks with five police officers present, Captain Ferguson of the Philadelphia Police Department advised him: "that [he] did not have to make a statement but if [he] did, anything that [he] said would be used against [him] at [his] trial."*fn1 Captain Ferguson then read to Staino a statement of one Robert Poulson which implicated Staino in the Rich burglary.*fn2 Throughout the reading of that statement, Staino time and again stated "I have nothing to say".
Staino was then taken to the Pottsville Court House where he was fingerprinted and photographed between
:00-6:00 a.m. on the same date. Several hours later, Staino, without counsel and without being advised of his right to counsel, was given a preliminary hearing at which he stated that "he had nothing to say". Staino was then lodged in Schuylkill County jail in Pottsville. At approximately 10:00 p.m. that same date, Staino was taken to the warden's office in the jail where Captain Ferguson again read to him a statement of Poulson which implicated Staino in the Rich burglary. While that statement was being read and at its conclusion, Staino either stated "I have nothing to say" or he remained mute.
Staino was tried before a court and jury in the Court of Quarter Sessions of Schuylkill County, convicted of larceny and burglary and sentenced to a term of 4 to 9 years. That judgment of sentence was affirmed by the Superior Court (Commonwealth v. Staino, 204 Pa. Superior Ct. 319, 204 A.2d 664 (1964)), and this Court refused allocatur.
On June 8, 1965, Staino filed a petition for a writ of habeas corpus in the Court of Common Pleas of Schuylkill County and that court, after hearing, dismissed Staino's petition. The order of the Court of Common Pleas of Schuylkill County was affirmed by the Superior Court, by an equally divided court (Commonwealth ex rel. Staino v. Cavell, 207 Pa. Superior Ct. 274, 217 A.2d 824 (1966)), and this Court granted allocatur.
At Staino's trial, the statement of Poulson previously read to Staino in Reading and in Pottsville and proof of Staino's conduct consisting of his statements "I have nothing to say" or his silence when confronted with Poulson's statement were admitted into evidence.*fn3
Poulson's statement was admitted not upon the ground that it was credible or freely and voluntarily made by Poulson, but only because of that which Staino said or did upon his confrontation by the police with such statement. The theory of the Commonwealth was that Staino, by his conduct, had tacitly admitted the truth of Poulson's statement and the trial court in admitting evidence of such conduct did so in reliance upon Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 (1943).
Staino was tried in May 1961. At that time, the doctrine of tacit admissions was judicially accepted in our Commonwealth. As this Court recently stated in Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85, 223 A.2d 296 (1966): "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. [Citing authorities]." See also: Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). Such was the state of the law in Pennsylvania when Staino was tried. Five years later, the U. S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), ". . . emphasizing the protection afforded a person accused of crime against self-incrimination by the Fifth Amendment to the United States Constitution, definitely ruled that such evidence [tacit admissions] is not constitutionally permissible against an accused in state court criminal trials. Therefore, previous decisions of this Court to the contrary notwithstanding, it is now the law that the prosecution may not use, at trial, evidence that an accused stood mute or failed to deny incriminating
accusations, or statements made in his presence. In short, the accused may not now be penalized for exercising his constitutional right to remain silent under such circumstances": Shadd, supra (p. 86), interpreting Miranda.
Very recently, we have been confronted with the determination whether the ruling proscribing the use of "tacit admissions" was to be applied retroactively. See: Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). In Dravecz, Mr. Justice Eagen in a concurring opinion joined in by a majority of this Court, stated: "Our ruling in Shadd was directly responsive to a statement by the United States Supreme Court in [ Miranda ] . . . . However, since Shadd involved a collateral attack on a judgment finalized several years previously, we held that ...