Appeal from order of Superior Court, Oct. T., 1967, No. 665, affirming judgment of Court of Oyer and Terminer 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 Michael J. Rotko, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Eagen concur in the result. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Cohen and Mr. Justice O'Brien join in this dissenting opinion.
Leonard Jefferson was indicted in October, 1957, on two separate charges of aggravated robbery. He stood trial on October 29, 1958 on one of the charges*fn* and the court, sitting without a jury, found him guilty. After a denial on February 26, 1959 of his motions for new trial and in arrest of judgment he was sentenced
to 10 to 20 years imprisonment. No appeal from the refusal of his motions was taken.
On March 6, 1967, he filed a Post Conviction Hearing Act petition, contending that he had not knowingly and intelligently waived his right to appeal. After a hearing on that petition he was granted the right to appeal nunc pro tunc to the Superior Court. The appeal was taken and the Superior Court, with two dissents, affirmed the conviction: 211 Pa. Superior Ct. 439. We granted an allocatur.
The main issue before us is whether or not Jefferson is entitled to claim a violation of his constitutional rights because of the admission into evidence at his trial of the reply he gave the police upon their reading to him the confession of one John Hughes, which confession implicated Jefferson in the robbery. The police officer testified that after hearing Hughes's statement implicating Jefferson, Jefferson "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."
The court below considered this statement as an admission which corroborated and adopted Hughes' statement as it was read to him by the police. Jefferson contends that his reply was an equivocal one and therefore at most could only be regarded as a tacit admission quoting from 112 U. of Pa. Law Review 226: ". . . the tacit admission rule may also be invoked if the accused responds not with silence but with words somewhere between a denial and an express acquiescence.", and adding that such a tacit admission was proscribed by the decision of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436. In making this argument, Jefferson relies on Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, where this Court held that an accused's failure to deny, or his silence in the face of accusatory statements made
in his presence, could not, under the Miranda decision any longer be used against him, "previous decisions of this ...