Appeal from order of Court of Oyer and Terminer of Delaware County, June T., 1954, No. 472, in case of Commonwealth of Pennsylvania v. Rayford G. Stevens.
Rayford G. Stevens, appellant, in propria persona.
Ralph B. D'Iorio and Vram S. Nedurian, Assistant District Attorneys, John R. Graham, First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the consideration or decision of this case.
In Commonwealth ex rel. Berkery v. Myers, 429 Pa. 378, 383 n.2, 239 A.2d 805, 807 n.2 (1968) we specifically reserved the question of the extent to which two recent opinions of the Third Circuit Court of Appeals would require this Court, under the doctrine of
if he failed to reply, this failure would result in the use at trial of the statements of his four alleged confederates. Other than one brief comment, Stevens made no reply.
At trial, the Commonwealth's case consisted of medical testimony establishing the cause of death, an employee of the deceased who testified only that Stevens was in the store at the time of the shooting*fn1 and the tacit admissions which, in varying degrees, implicated Stevens.*fn2 Stevens, on the other hand, reiterated the version contained in his statement, denying any complicity in the offense.
The two Third Circuit opinions, both authored by Judge Hastie, indicate that not all tacit admissions can be retroactively attacked but make no attempt to isolate those which are constitutionally infirm other than stating that their use must be fundamentally unfair. See United States ex rel. Staino v. Brierly, 387 F. 2d 597 (3d Cir. 1967); United States ex rel. Smith v. Brierly, 384 F. 2d 992 (3d Cir. 1967). However, the Court of Appeals did stress two factors in both opinions -- the fact that the tacit admissions were vital to the prosecution case*fn3 and the presence of a warning of the right to remain silent given prior to the reading
of the statements*fn4 -- as indicia of when use of a tacit admission is fundamentally unfair. Both of these factors are here present. Of the two decisions, Staino is factually almost identical to the circumstances under which Stevens' tacit admissions were obtained. Staino was twice confronted by statements of alleged coconspirators and each time was warned of his right to remain silent, a procedure which the Third Circuit characterized as "an indefensible sort of entrapment." 387 F. 2d at 600. Furthermore, that court found significant the fact that Staino's coconspirators did not testify at trial (nor did any of Stevens' accomplices); this, said the court, created many of the risks inherent when a defendant is denied the right to confront his accusers. Additionally, the use of the four tacit admissions obtained from Stevens contains an element of unfairness found in neither Smith nor Staino for it is arguable that in fact appellant did not admit the veracity of these statements. Having just made a statement in which all complicity in the crime had been denied, Stevens may well have believed that this alone operated as a denial of his confederates' statements and that no action on his part was necessary.
Finding no material difference between the present case and those which confronted the Third Circuit,*fn5 we conclude that the ...