Appeal from judgment of Court of Quarter Sessions of Lehigh County, June T., 1965, No. 130, in case of Commonwealth of Pennsylvania v. Willis Reichard et al.
Dean L. Foote, for appellants.
Wardell F. Steigerwalt, Assistant District Attorney, with him George J. Joseph, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J. Wright and Watkins, JJ., would affirm on the opinion of Judge Scheirer for the court below.
[ 211 Pa. Super. Page 56]
On the night of February 5, 1965, appellants, Charles Schellhamer and Willis Reichard, accompanied by one Carl Moyer, drove to the Washington Grange Building, located in Washington Township, Lehigh County, Pennsylvania. Schellhamer left Reichard and Moyer at the Grange and drove away. Reichard and
[ 211 Pa. Super. Page 57]
Moyer entered the building and removed certain kitchen and cooking utensils, candy, and soft drinks. Shortly thereafter, Schellhamer returned and, together with Reichard and Moyer, loaded the car with the goods. The car was then driven to Moyer's home where the goods were deposited. None of the goods was ever found in the possession of the appellants. Appellants were arrested and convicted of burglary, larceny, and receiving stolen goods.
In light of the issues raised in this appeal, it is unnecessary to review the facts in greater detail other than as they appear below.
Appellants contend that the district attorney, in his argument to the jury, improperly commented on appellants' failure to testify on their own behalf. Specifically, the district attorney stated: "I ask you one thing, did you hear one word of denial?" Defense counsel promptly objected and moved for the withdrawal of a juror, but the motion was denied.
The question presented on appeal is whether this statement was adverse to the defendants under the Act of May 23, 1887, P. L. 158, § 10, 19 P.S. § 631, which provides in part: ". . . [N]or may the neglect or refusal of any defendant, actually upon trial in a criminal court, to offer himself as a witness be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial." In deciding this question, we must first look to the interpretation of the statute and its constitutional implications.
Although the statute prohibits adverse comment by the court and counsel, it impliedly allows nonadverse comment on the failure of the accused to take the stand. Since the passage of the Act, we have on many occasions considered whether particular statements were adverse to defendants ...