Appeal from judgment of Court of Quarter Sessions of Philadelphia County, April T., 1957, No. 866, in case of Commonwealth of Pennsylvania v. Leonard Jefferson.
William E. McDaniels, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
Welsh S. White, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, 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. Dissenting Opinion by Hoffman, J. Montgomery, J., joins in the dissent.
[ 211 Pa. Super. Page 440]
Judgment of sentence affirmed.
Dissenting Opinion by Hoffman, J.:
Defendant was read a statement of one John Hughes which indicated that Hughes and defendant had perpetrated the robbery in question. The police officer testified that after hearing the statement, appellant, "stated that he was glad it was all over; he was glad that he was apprehended. He said he was tired of running -- he was afraid every minute." This statement was admitted into evidence at trial.
[ 211 Pa. Super. Page 441]
Defendant argues that this response was introduced as a tacit admission. The Commonwealth argues, however, that recent cases relating to tacit admissions apply only to silence in the face of an accusation. I cannot agree with the Commonwealth. It is clear to me that the rules relating to tacit admissions apply equally to cases in which an accused remains silent and those in which he makes an equivocal statement which is deemed a failure to deny. See Note, 79 Harvard L. Rev. 936, 1040 (1966). Accordingly, the eliciting of the admission would warrant the granting of a new trial. See Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 223 A.2d 296 (1966); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967); Commonwealth Page 441} ex rel. Staino v. Cavell, 425 Pa. 365, 228 A.2d 647 (1967).
The more serious question, in my opinion, is whether the new rule excluding the use of tacit admissions may be applied in this case where the motion for new trial was denied in 1959. The Supreme Court of Pennsylvania in the Staino case, supra, held that the rule excluding such evidence is only applicable to cases in which judgment was not finalized on or before June 13, 1966. In the instant case, no appeal was taken subsequent to the denial of post-trial motions. However, eight years later, the lower court allowed this appeal nunc ...