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decided: March 15, 1968.


Appeal from order of Superior Court, Oct. T., 1966, No. 900, affirming 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.


John Berkery, appellant, in propria persona.

William D. Hutchinson, Assistant District Attorney, and Richard B. Russell, District Attorney, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Jones dissent. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 429 Pa. Page 380]

Appellant John Berkery was tried jointly with Ralph Staino for a 1959 burglary; appellant received a sentence of 5 to 12 years while Staino was sentenced to a term of 4 to 9 years. A third individual allegedly involved in the robbery, Robert Poulson, was arrested, interrogated and his statement reduced to writing. Poulson's statement implicated both Berkery and Staino. When shown this statement, Staino made no reply (the statement was not shown to Berkery); however, Poulson's confession was admitted at the Berkery-Staino trial under the tacit admission doctrine, since rejected prospectively by this Court in Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967).

[ 429 Pa. Page 381]

Berkery and Staino appealed their convictions and an affirmance resulted. See Commonwealth v. Staino, 204 Pa. Superior Ct. 319, 204 A.2d 664 (1964). This Court denied allocatur. Habeas corpus petitions were then brought by both men; in both petitions the admission of Poulson's confession was challenged. The Court of Common Pleas of Schuylkill County deferred action on Berkery's petition until Staino's was adjudicated. The Superior Court and this Court decided that Staino's tacit admission could not be successfully attacked and thus denied relief. See Commonwealth ex rel. Staino Page 381} v. Cavell, 207 Pa. Superior Ct. 274, 217 A.2d 824 (1966) (equally divided court); Commonwealth ex rel. Staino v. Cavell, 425 Pa. 365, 228 A.2d 647 (1967) (5-2 decision). Berkery's petition was then denied and that denial affirmed by the Superior Court. See Commonwealth ex rel. Berkery v. Myers, 209 Pa. Superior Ct. 529, 232 A.2d 57 (1967). Allocatur was granted by this Court.

After this Court's denial of relief, Staino sought habeas corpus in federal district court. He was successful and the Commonwealth unsuccessful in an appeal to the Third Circuit Court of Appeals. See United States ex rel. Staino v. Brierly, 387 F. 2d 597 (3d Cir. 1967), affirming 269 F. Supp. 753 (E.D. Pa. 1967). Although the Third Circuit's opinion does not retroactively invalidate the use of all tacit admissions,*fn1

[ 429 Pa. Page 382]

    it is clear that Staino's tacit admission, in the view of the Third Circuit, was unconstitutionally employed.


Since the Third Circuit has held that Staino's tacit admission could not be employed against him, we shall accept as a given that this admission was unconstitutionally procured despite this Court's prior decision to the contrary. We faced a strikingly similar problem in Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965). The Third Circuit in United States ex rel. Russo v. New Jersey, 351 F. 2d 429 (3d Cir. 1965), cert. denied, 384 U.S. 1012, 86 S. Ct. 1916 (1966) had adopted an interpretation of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964) which afforded greater protection to the accused than that accorded to him by our own cases interpreting Escobedo such as Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). Concluding that we would thereafter follow the Third Circuit interpretation, we said in Negri (supra at 121-22, 213 A.2d at 672): "Obviously, this decision [ Russo ] creates a serious problem for this Court, and jeopardizes the finality of our judgments in relevant cases.

"While recognizing that in cases involving federal questions the Supreme Court of the United States is the ultimate arbiter, in view of the widespread confusion in this area of the law and the failure of the Supreme Court to clarify it, the decision of the Third Circuit Court of Appeals is on this matter, for all practical

[ 429 Pa. Page 383]

    purposes, the ultimate forum in Pennsylvania. If the Pennsylvania courts refuse to abide by its conclusions, then the individual to whom we deny relief need only to 'walk across the street' to gain a different result. Such an unfortunate situation would cause disrespect for the law. It would also result in adding to the already burdensome problems of the Commonwealth's trial courts, which look to us for guidance. Finality of judgments would become illusory, disposition of litigation prolonged for years, the business of the courts unnecessarily clogged, and justice intolerably delayed and frequently denied.

"Consequently, in order to alleviate and correct a regrettable situation, the clear indication for this Court is to accept and follow the decision of the Third Circuit on this matter until some further word is spoken by the Supreme Court of the United States."

The Supreme Court of the United States has yet to speak on the pre- Miranda admissibility of tacit admissions. Much of the Negri reasoning is therefore applicable.*fn2 Were we to follow our prior conclusion that Staino's tacit admission did not offend constitutional mandates, Berkery could merely file a federal habeas corpus petition and obtain a "reversal" of this decision. Faced with a situation in which the Third Circuit's decision as to the admissibility of a confession is preordained, we shall not compel Berkery to seek "reversal" of this Court and we thus hold that Staino's tacit admission was unconstitutionally employed at the Staino-Berkery trial.

[ 429 Pa. Page 384]


The Commonwealth argues that the cautionary instruction given by the trial judge that the jury was not to consider Staino's admission when determining Berkery's guilt*fn3 cures any defect in the evidentiary use of this admission and cites as support Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294 (1957) (5-4 decision). We are convinced, however, that Delli Paoli is not supportive of the Commonwealth's position that evidence inadmissible as to one co-defendant and which implicates the other can be employed in a joint trial if cautionary instructions are given.

In Delli Paoli the Supreme Court affirmed a conviction in which the confession of a co-defendant made after the alleged conspiracy had terminated and which implicated Delli Paoli was admitted in a joint trial. The Court emphasized that, in a simple case and with proper instruction, the jury should be able to segregate the inculpatory statements inadmissible against the party not making them and not consider these statements as evidence of the co-defendant's guilt.*fn4 What

[ 429 Pa. Page 385]

    must be emphasized is that the confession of Delli Paoli's co-defendant was admissible against the co-defendant while here Staino's tacit admission was inadmissible, by virtue of the Third Circuit decision, against Staino.

Cautionary instructions -- the balance drawn between the judicial economy of a joint trial and the rights of the co-defendant who did not confess -- do not eliminate the risk that the jury in fact will consider the confession (or, as in this case, the tacit admission) against both defendants. When the confession is not admissible against the confessor, there is no justification for this risk especially where, as here,*fn5 the nonconfessing

[ 429 Pa. Page 386]

    defendant requests a severance thus eliminating any possible confusion on the part of the jury. Chief Justice Traynor, writing for the California Supreme Court in People v. Aranda, 63 Cal. 2d 518, 407 P. 2d 265, 47 Cal. Rptr. 353 (1965),*fn6 has reached the identical conclusion (id. at 526, 407 P. 2d at 269-70, 47 Cal. Rptr. at 357-58): "At best, the rule permitting joint trials in such cases is a compromise between the policies in favor of joint trials and the policies underlying the exclusion of hearsay declarations against one who did not make them. When, however, the confession implicating both defendants is not admissible at all, there is no longer room for compromise. The risk of prejudicing the nonconfessing defendant can no longer be justified by the need for introducing the confession against the one who made it." We thus conclude that Staino's tacit admission should not have been employed at the Staino-Berkery trial and that this error is not cured by the trial judge's cautionary instructions.*fn7


To avoid the necessity of a new trial, the Commonwealth also insists that any error in the use of Staino's tacit admission has been either waived or finally litigated by Berkery and that he is therefore precluded

[ 429 Pa. Page 387]

    from obtaining collateral relief on this basis.*fn8 The doctrine of waiver requires that Berkery, having had an available opportunity to litigate the validity of Staino's tacit admission, failed to do so and that this failure constitutes a deliberate bypass of the available state procedures. See Commonwealth v. Snyder, 427 Pa. 83, 88-94, 233 A.2d 530, 533-36 (1967). Berkery objected to the use of Staino's tacit admission at trial and assigned the rejection of this objection as one of the reasons supporting his new trial motion. See Commonwealth v. Berkery, 60 Schuylkill L. R. at 85-86, 90. This issue was also pressed in the Superior Court. See Commonwealth v. Staino, supra at 330, 204 A.2d at 669. Allocatur was then denied. Berkery's first and only collateral attack, the habeas corpus petition which is the subject of this appeal, assigns as error the evidentiary use of Staino's admission. The Superior Court again rejected this contention. See Commonwealth ex rel. Berkery v. Myers, supra at 530-32, 232 A.2d at 58-59. Berkery, at every available opportunity, thus complained of the utilization of Staino's admission and has not waived any opportunity to litigate this claim.

The Commonwealth's contention that Berkery has finally litigated this claim is premised upon a belief that an accused may not avail himself of retroactive changes in the law*fn9 (in this case, the Third Circuit's

[ 429 Pa. Page 388]

Staino decision) if his contention has once been resolved against him. The operation of the position pressed by the Commonwealth can be illustrated by the following example. An indigent accused is tried and convicted without counsel in 1960. In an attempt to obtain a reversal of this conviction, he asserts on direct appeal that he was entitled to court appointed representation and this claim is rejected. The Supreme Court of the United States in March of 1963 announces Gideon v. Wainwright. The hypothetical accused then collaterally attacks his 1960 conviction. Certainly, had the accused not attempted to obtain a reversal of his 1960 conviction in his direct appeal on grounds later adopted in Gideon, his Gideon claim would not be foreclosed. See O'Connor v. Ohio, 385 U.S. 92, 87 S. Ct. 252 (1966). That this accused attempted, albeit prematurely, to change the doctrines governing appointment of counsel should in no way deprive him of later, relevant changes in the law.

Furthermore, were we to hold that Berkery was precluded from employing as the basis for relief the Third Circuit Staino decision, he could successfully assert his claim in the federal courts for such a rule could not serve a legitimate state interest. See Henry v. Mississippi, 379 U.S. 443, 447-49, 85 S. Ct. 564, 567-68 (1965). A denial of relief by this Court and then an immediate "reversal" of that decision by a federal court would result in the very evil Negri was designed to combat. We therefore hold that Berkery has not finally litigated his claim and that he is entitled to a new trial.

The orders of the Superior Court and the Court of Common Pleas of Schuylkill County are reversed, the record is remanded and a new trial granted.


Orders of Superior Court and lower court reversed.

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