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COMMONWEALTH v. BURKETT (11/16/67)

decided: November 16, 1967.

COMMONWEALTH
v.
BURKETT, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, Dec. T., 1965, Nos. 969, 970, and 971, in case of Commonwealth of Pennsylvania v. Alfred Burkett.

COUNSEL

Thomas Kellogg, Assistant Defender, with him Leonard Lieberson and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

Michael M. Baylson, Assistant District Attorney, with him Michael J. Rotko and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Wright and Watkins, JJ., would affirm on the opinion of Judge Lagakos. Concurring Opinion by Hoffman, J.

Author: Jacobs

[ 211 Pa. Super. Page 301]

After waiving a jury trial, appellant was tried on October 31, 1966, before the Honorable Gregory G. Lagakos and found guilty of rape, aggravated robbery, aggravated assault and battery, and conspiracy. He appeals from the judgment of sentence.

Appellant's sole argument before this court is that the lower court erred in permitting the assistant district attorney to cross-examine him regarding his statement to the police when the statement was inadmissible for failure to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The inadmissibility is apparently admitted by the Commonwealth which withdrew the statement, after objection, when it was offered in its case in chief.

On direct examination the twenty-one year old appellant testified that the prosecutrix had an accident with her automobile and asked for help. He said that he volunteered and at her request drove her automobile away from the scene of the accident. He testified that while in the car she told him that her boy friend had beaten her, that she liked boys, and would give him money and other gifts. Appellant further testified on direct examination that the prosecutrix then offered herself to him sexually and that he got into the back seat of the car with her but left without having intercourse because he was repelled by her body odor. On cross-examination appellant was asked, over objection, if he had told police the same story that he had told the court on direct examination. Appellant admitted that he had not given the same story to the police.

The effect of this question and answer was to demonstrate to the fact finder, in this case the judge,

[ 211 Pa. Super. Page 302]

    that the statement appellant had given to the police was at variance with his oral testimony. Since the variance was not limited by the question or the answer, the judge might well have concluded that appellant's statement to the police admitted some or all of the essential elements of the crimes charged. It is obvious that the statement itself, which we have never seen, could not have been admitted into evidence for that purpose as part of the Commonwealth's case or on rebuttal. The effect of this question and answer was to do indirectly what the Commonwealth could not do directly, i.e., to force the appellant to incriminate himself.*fn1 "The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination." Miranda v. Arizona, 384 U.S. at 476, 16 L. Ed. 2d at 725. To permit this question and answer was reversible error.

Appellee argues that this case is controlled by our recent decision in Commonwealth v. Reginelli, 208 Pa. Superior Ct. 344, 222 A.2d 605 (1966). We disagree. In Reginelli we followed by analogy Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954), in holding that the prosecution may make use of an unlawfully obtained statement to impeach a defendant's credibility after he opens the door on direct examination by making assertions which go beyond the denial of complicity in the crime charged.*fn2 Walder v. United States, supra, held that where a defendant goes

[ 211 Pa. Super. Page 303]

    beyond a mere denial of complicity in the crimes with which he is charged the prosecution may introduce unlawfully seized evidence in rebuttal for impeachment purposes.

In Commonwealth v. Wright, 415 Pa. 55, 202 A.2d 79 (1964), in analyzing Walder, Justice Eagen speaking ...


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