decided: November 17, 1972.
Appeal from order of Superior Court, No. 151, Oct. T., 1970, affirming judgment of sentence of Court of Common Pleas of Delaware County, June T., 1969, No. 60, in case of Commonwealth of Pennsylvania v. George P. Haideman.
Carmen P. Belefonte, with him Kassab, Cherry, Curran & Archbold, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, with him Vram S. Nedurian and John A. Reilly, Assistant District Attorneys, William R. Toal, First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice Pomeroy dissent.
[ 449 Pa. Page 368]
Appellant, George Haideman, was tried by a jury and found guilty of bookmaking, setting up a gambling establishment and conspiracy. He was sentenced to undergo imprisonment for six to twenty-three months and to pay a fine of $500.00. Following a per curiam affirmance by the Superior Court, we granted allocatur and, in a per curiam order, affirmed the conviction by an equally divided Court. Commonwealth v. Haideman,
[ 449 Pa. Page 369284]
A.2d 757 (1971).*fn1 On March 21, 1972, however, we granted appellant's motion for reargument.
The issue*fn2 presented is whether the trial court erred in permitting testimony that appellant, upon being advised of his Miranda*fn3 rights, requested counsel and exercised his constitutional right to remain silent. The Commonwealth, in its case in chief, introduced the following testimony of Trooper Kardash: "Q. When you say advised him of the Warrant and the reason of our business, what do you mean, Trooper Kardash? A. He read him his constitutional rights, and he read the Search Warrant to him and the Body Warrant. Q.
[ 449 Pa. Page 370]
Circuit observed, "[w]e would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt." Walker v. United States, 404 F. 2d 900, 903 (5th Cir. 1968). It is clear that "[t]he privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury." Slochower v. Board of Higher Ed. of N.Y., 350 U.S. 551, 557, 76 S. Ct. 637, 641 (1956).
[ 449 Pa. Page 372]
The Seventh Circuit in United States v. Kroslack, 426 F. 2d 1129 (7th Cir. 1970), relied on Griffin in concluding that testimony similar to that utilized here was inadmissible. That court said: "It was reversible error for the agent to testify that when the defendant was questioned he refused to make a statement. Baker v. United States, 5 Cir. 357 F. 2d 11 (1966). Defendant had a constitutional right to refuse to make a statement until his request that a lawyer be present was met. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1964). [sic] We find little difference between the prejudice resulting from the testimony admitted in the case before us, and a prosecutor's comment before a jury on a defendant's exercise of his constitutional right not to take the witness stand. Such comments have been held to be reversible error. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The testimony elicited here could well have led the jury to infer guilt from defendant's refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty." Id. at 1130-31 (footnote omitted). Accord, United States v. Matos, 444 F. 2d 1071 (7th Cir. 1971); United States Page 372} v. Arnold, 425 F. 2d 204 (10th Cir. 1970); Fowle v. United States, 410 F. 2d 48 (9th Cir. 1969); Walker v. United States, supra; Gillison v. United States, supra; Baker v. United States, 357 F. 2d 11 (5th Cir. 1966); Fagundes v. United States, 340 F. 2d 673 (1st Cir. 1965); People v. Lampson, 129 Ill. App. 2d 72, 262 N.E. 2d 601 (1970); People v. Abdul Karim Al-Kanani, 26 N.Y. 2d 473, 260 N.E. 2d 496 (1970); Galasso v. State, 207 So. 2d 45 (Fla. Dist. Ct. App. 1968); State v. Dearman, 198 Kan. 44, 422 P. 2d 573 (1967), cert. denied, 396 U.S. 895, 90 S. Ct. 194 (1969).
In Fowle v. United States, supra, the court rejected the use of evidence of an accused's silence at arrest as being constitutionally precluded because such evidence ignores his Fifth Amendment protection and prejudices this guaranteed right. That court reasoned: "We simply cannot adopt an interpretation of the Fifth Amendment under which one exercising his right to remain silent upon and immediately after his arrest -- a right which the Supreme Court has so earnestly sought to guarantee and preserve -- is severely prejudiced by his recourse to that cherished right. It would be anomalous indeed if honorable law enforcement officers were required to elaborate upon the traditional fifth amendment warning and advise arrested persons, in effect: If you say anything, it may be used against you. You have the constitutional right to remain silent, but if you exercise it, that fact may be used against you." Fowle v. United States, 410 F. 2d at 54.
The conclusion we reach is compelled by the Supreme Court's explicit pronouncement that the prosecution may not -- as was done here -- introduce at trial the fact that the accused "stood mute or claimed his privilege." In Miranda, the Court stated: "In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege
[ 449 Pa. Page 373]
when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. State of California. . . ." Miranda v. Arizona, 384 U.S. 436, 468 n.37, 86 S. Ct. 1602, 1624-25 n.37 (1966) (emphasis added).
It must, therefore, be held that reversible error was committed in admitting, at trial, evidence of appellant's request for counsel and his silence at time of arrest. To permit such evidence would certainly impair and burden appellant's constitutional privilege and impose the very penalty which Miranda specifically forbids.
The order of the Superior Court is reversed, the judgment of sentence is vacated and a new trial granted.
Order of Superior Court reversed, judgment of sentence vacated, and new trial granted.