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.
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,
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.
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).
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 ...