Appeal from order of Court of Quarter Sessions of Philadelphia County, March T., 1962, No. 660, in case of Commonwealth of Pennsylvania v. George Reed.
Thomas K. Gilhool, for appellant.
Alan J. Davis, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Watkins, J.
[ 212 Pa. Super. Page 11]
This is an appeal by the defendant-appellant, George Reed, from the order of the Court of Quarter Sessions of Philadelphia County denying his motions for a new trial nunc pro tunc or in the alternative, for an arrest
[ 212 Pa. Super. Page 12]
of judgment. The leave to file the motions was permitted by Judge Thomas M. Reed on appellant's petition under the Post Conviction Hearing Act, on the ground that appellant's trial counsel had failed to advise him of his right to appeal.
This appellant, together with Andrew Smith and Kenneth Foster, was indicted for aggravated robbery. They were tried together before Judge Ethan Allen Doty. After trial, the judge directed a verdict of "not guilty" in the case of Foster and the jury returned "guilty" verdicts against the appellant Smith. The appellant was sentenced to a term of from seven and one-half to fifteen years.
The serious question involved in this appeal is whether an adverse comment made by the trial judge in regard to the appellant's failure to call a co-defendant to testify is reversible error. At the close of the trial court's charge the trial judge not only commented on the appellant's failure to call a privileged witness but made it very clear that an inference unfavorable to the appellant could be drawn from his failure to do so. The instructions of the trial judge to the jury were as follows:
"There was argument here by counsel for the defendants that the Commonwealth failed to call a detective who might have testified as to a statement that Mr. Rhodes had made concerning the description of the individuals. The Commonwealth did not call him. On the other hand, the detective -- there is no testimony before you that the detective was available and so you don't know. And on the other hand, although Mr. Foster*fn1 was sitting in the courtroom throughout these proceedings, he was not called to the witness stand, either, to corroborate testimony given by Mr. Reed or Mr. Smith, and you had no explanation in this situation, either. So all of these are matters that you have to consider." This was fundamental error.
[ 212 Pa. Super. Page 13]
In Commonwealth v. Miller, 205 Pa. Superior Ct. 297, 208 A.2d 867 (1965), this Court held that an instruction to a jury that they had a right to draw an inference from the defendant's failure to call witnesses or to better defend himself was prejudicial error. If a trial court may not comment on the failure of a defendant to call a witness or witnesses or for failure to take the stand himself or suggest that inferences may be drawn therefrom, most certainly the ...