Appeal from order of Court of Common Pleas of Schuylkill County, Jan. T., 1966, No. 364, in case of Commonwealth ex rel. John Berkery v. David N. Myers, Superintendent.
Edward F. Kane, with him Bean, DeAngelis, Tredinnick & Giangiulio, for appellant.
William D. Hutchinson, Assistant District Attorney, with him Harry W. Lightstone, District Attorney, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Ervin, P. J. Hoffman, J., dissents.
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This is an appeal from an order of the court below dismissing appellant's petition for writ of habeas corpus after hearing and argument. The petition was filed November 18, 1965.
This is the second time the case has been before us. In Com. v. Staino, 204 Pa. Superior Ct. Ct. 319, 204 A.2d 664 (allocatur refused by the Supreme Court, 204 Pa. Superior Ct. xxxvii), we affirmed the conviction of this defendant on a charge of burglary in an opinion filed November 12, 1964. At the trial the tacit admission of the co-defendant Staino to a signed confession of a confederate, Robert Poulson, implicating
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the defendant Staino, was admitted into evidence after Staino either remained silent or stated, "I have nothing to say." This evidence was received under the well established Pennsylvania doctrine of tacit admissions and our Supreme Court, in an opinion filed April 24, 1967 in the case of Com. ex rel. Staino v. Cavell, 425 Pa. 365, 228 A.2d 647, sustained the conviction.
In that opinion our Supreme Court held that the decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), ruling that such evidence is not constitutionally permissible against an accused in state court criminal trials, was not to be applied retroactively to cases in which the judgment was finalized prior to June 13, 1966, the date of the pronouncement in the Miranda case. The present case was finalized on November 12, 1964 when we affirmed the conviction of the appellant in a direct appeal, our Supreme Court subsequently having refused an allocatur.
Counsel for appellant Berkery now argues that the tacit admission of Staino to the signed confession of Poulson (in which Berkery was also implicated) amounted to a confession by Staino and that the court should have instructed the jury with respect to Staino's alleged confession as it applied to Berkery. He argues in the next breath that when Staino said, "I have nothing to say", the only logical construction of this statement is that he, Staino, was not admitting to anything whatsoever. Notwithstanding this inconsistency, we believe that the court's instruction to the jury clearly met this objection. The court charged as follows: "In connection with this statement, that is, Poulson's statement, we say to you at this point, as we have during the course of the trial, that, Defendant Berkery not having been present, the statement would have no connection, as far as this case is concerned, in regard to Defendant Berkery inasmuch as he was not present
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when Captain Ferguson read the Poulson statement to Staino. Berkery was not there at the time, and hence, that portion of the evidence cannot be considered by you in ...