Appeal from judgment of sentence of Court of Common Pleas of Delaware County, March T., 1969, Nos. 531, 532, and 533, in case of Commonwealth of Pennsylvania v. Curtis Wilbur Davis.
W. Donald Sparks, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, 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. Justice Eagen concurs in the result. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Pomeroy.
Appellant, Curtis Davis, was arrested in December of 1968 and charged with murder, voluntary manslaughter, involuntary manslaughter and robbery. A timely filed pre-trial motion to suppress evidence was denied. Thereafter, on September 25, 1969, appellant was adjudged guilty, by a jury, of murder, voluntary manslaughter and two counts of robbery. Appellant was sentenced, by the jury, to death on the murder conviction, and from ten to twenty years imprisonment, by the court, on the robbery convictions. Post-trial motions in arrest of judgment and for a new trial were denied. This direct appeal followed. We now reverse and remand for a new trial.
Appellant contends that the assistant district attorney committed reversible error by attempting to create an impermissible adverse inference in the minds of the jurors regarding appellant's exercise of his Fifth Amendment rights at trial.*fn1 Appellant alleges that this was accomplished by the prosecutor's persistent references in his closing argument, over objection, to the evidence against the defendant being "uncontroverted." Review of the record supports appellant's contention that the prosecution's repeated use of the words "uncontroverted" and "uncontroverted fact" created an adverse inference prohibited by the Fifth Amendment to the United States Constitution,*fn2 Article 1, § 9 of the
Pennsylvania Constitution,*fn3 and the Act of May 23, 1887.*fn4
It is well settled that the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964), forbids either comment by the prosecution on the accused's silence at trial or instructions by the court that such is evidence of guilt. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965). "Upon the present record, [we] believe that the prosecutorial comment about the 'uncontradicted' [or 'uncontroverted'] nature of the Commonwealth's case runs directly afoul of the Griffin prohibition." Commonwealth v. Allen, 445 Pa. 156, 159, 281 A.2d 634, 635 (1971) (Roberts, J., dissenting from an opinionless per curiam affirmance, joined by Eagen, J., and O'Brien, J.).
Here, where appellant neither testified at trial nor offered any other defense, the ". . . prosecutor's statement[s] implied that the . . . [defendant himself was] the only [one] who could and should have denied the charges against [him]. The jury might reasonably have inferred from [these] statement[s] that [his] failure to do so was evidence of [his] guilt." Commonwealth v. Reichard, 211 Pa. Superior Ct. 55, 60, 233 A.2d 603, 606 (1967). Such an inference is patently contrary to the mandate of Griffin, supra.*fn5
As the First Circuit recently stated in United States v. Flannery, 451 F. 2d 880, 881-82 (1971): ". . . [W]e [have] held that for the government to say, in summation to the jury, that certain of its evidence was 'uncontradicted,' when contradiction would have required the defendant to take the stand, drew attention to his failure to do so, and hence was unconstitutional comment. Desmond v. United States, 1 Cir., 1965, 345 F. 2d 225. We do not adopt the reasoning of those courts which state, as it seems to us, ingenuously, that to say that the government's witnesses' testimony was uncontradicted is simply a statement of historical fact. There are many 'facts' which are benign in ...