Appeal from order of Superior Court, Oct. T., 1967, Nos. 487 and 488, affirming judgments of Court of Quarter Sessions of Philadelphia County, March T., 1964, Nos. 255 and 256, in case of Commonwealth v. Lacey P. Little.
John H. Lewis, Jr., with him Morgan, Lewis & Bockius, for appellant.
Michael J. Rotko, Assistant District Attorney, with him Benjamin H. Levintow, 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 and O'Brien, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno did not participate in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.
Appellant, Lacey P. Little, was tried on April 16 and 17, 1964 and convicted of aggravated assault and battery and aggravated robbery. He was sentenced to a term of seven and a half to fifteen years,*fn1 and took no appeal. Post Conviction Hearing Act proceedings ensued, appellant was found to have been denied his right to appeal, assured by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814 (1963), and an appeal was granted nunc pro tunc. The Superior Court affirmed the conviction per curiam, Judge Hoffman and Judge Spaulding dissenting.
The crucial issue for our determination is the effect to be accorded the introduction of a "tacit admission." Despite the Commonwealth's protestations to the contrary, there can be no doubt that the disputed testimony constituted a tacit admission. The testimony of Detective McKenna was as follows: "By Mr. Marion: Q. You're telling us now what Dr. Polakoff told you, is that correct? A. Yes. By The Court: Q. Is this in the presence of the defendant? A. Yes, it was. By Mr. Marion: Q. Continue, then. A. He stated that Little was the man who had entered his shop on February 21, 1964, had argued with him over fourteen dollars, and after leaving reentered the shop and beat and robbed him of forty-four dollars and his wrist watch, and he said at this time that Little had beat him with a file. Now, Little was interrogated, Your Honor, inside the 6th District on February 22, 1964. He said that he had went into the complainant's shop on February 21st, sometime in the morning, to have his eyes examined. Q. Before you go any further, Detective, did Little say anything at all in the presence
of the complainant when the complainant pointed him out as the man who did this? A. No, Little said nothing at all. Q. He didn't deny it at that time? A. He didn't deny it and didn't admit it. Q. He said nothing A. He said nothing."
The Commonwealth argues further, that even if this is a tacit admission, the proscription against tacit admissions should not be applied in this nunc pro tunc appeal of a case tried on April 17, 1964. We disagree.
Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967) controls the instant case. In that case, the view of a majority of this Court was expressed through Mr. Justice Eagen's concurring opinion, which stated that a reversal is required in all cases employing a tacit admission "wherein the judgment was not finalized as of the date Miranda was announced." The judgment in this case clearly was not final as of the date Miranda was announced. Justice Roberts' dissenting opinion in Commonwealth v. Jefferson, 430 Pa. 532, 243 A.2d 412 (1968) is directly apposite here: "Even the most cursory reading of Dravecz indicates that this Court chose to adopt the Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1713 (1965) rule to restrict the retroactivity of its decision. As articulated by the Supreme Court, the concept of finality employed in Linkletter and adopted by Dravecz compels the conclusion that Jefferson's conviction is not final: 'By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio.' 381 U.S. at 622 n.5, 85 S. Ct. at 1734 n.5. (Emphasis supplied.) That the availability of appeal for [Little] has not been exhausted is amply demonstrated by the fact that the present proceeding is a direct appeal. If the Supreme Court (and this Court, by adopting the Supreme Court's
test) intended to exclude Douglas claims (Douglas, decided in 1963, was well prior to Linkletter) it could have insisted that the relevant inquiry was whether the time for appeal not ...