Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1971, No. 861, in case of Commonwealth of Pennsylvania v. Amos Williams.
John J. Scott, Anne F. Johnson and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J. Cercone, J., concurs in the result.
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Appellant, Amos Williams, was arrested and indicted on a charge of forcible rape. He was found guilty by a jury and sentence was imposed. In this appeal he claims that his privilege against self-incrimination was violated when a Commonwealth witness referred to his refusal to take a polygraph test and make a formal statement in support of an oral statement. However, appellant's counsel*fn1 failed to object to such testimony at trial. We find that the admission of such testimony, under the circumstances of this case, was not fundamental error and affirm the judgment of sentence.
At trial, after the Commonwealth presented its evidence, the appellant testified that he was acquainted with the prosecutrix and that his sexual intercourse with her was consensual and not rape. To rebut this testimony the Commonwealth called a police detective who testified that after appellant was arrested and informed of his constitutional rights, he voluntarily
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made a verbal statement. The detective testified that appellant indicated that he was not previously acquainted with the prosecutrix and at the time of the incident had given her $4, in return for which she agreed to engage in sexual intercourse. Appellant's statement as recited by the detective was also inconsistent with his testimony in several other respects. At the end of his testimony, the detective added: "I then did ask the defendant if he would be willing to give me a formal statement the same as the complainant had and also requested that the defendant take a polygraph test, which is procedure. To both of these requests he refused. He didn't make any more statements." Appellant's trial counsel failed to object. Furthermore, he failed to mention the alleged error in his post-trial motions or argue the same before the court below. Now, on appeal, counsel argues that the admission of this testimony deprived appellant of his right to a fair trial and his privilege against self-incrimination.
Had proper objection to this statement been made below, such objection should have been sustained. Reference to a refusal to take a polygraph test is inadmissible. See Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956). Furthermore, appellant had a constitutional right to resume his silence, after waiving the same to give an oral statement, and reference to his refusal to make a formal statement might well be construed as a reference to the exercise of that right. We now turn to the question of whether this unobjected to error warrants a new trial.
As a general rule, an appellate court will not reverse on a point as to which no exception was taken or on a ground not raised in the court below, but the general rule will not be applied where there is "'basic and fundamental error which affects the merits or justice of the case, or, as some cases express it, offends
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against the fundamentals of a fair and impartial trial . . . .'" Commonwealth v. Jennings, 442 Pa. 18, 25, 274 A.2d 767, 770 (1971), quoting Commonwealth v. Williams, 432 Pa. 557, 563-64, 248 A.2d 301, 304 (1968). Objection has been made to this rule on the basis that the test used is too vague and lends itself to inconsistent results. See the dissent of Justice Roberts in Commonwealth v. Williams, supra, and his concurring opinion joined in by Justice, now Chief Justice, Jones in ...