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COMMONWEALTH v. GRECO (04/03/74)

decided: April 3, 1974.

COMMONWEALTH
v.
GRECO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Feb. T., 1972, No. 1078, in case of Commonwealth of Pennsylvania v. Paul Anthony Greco.

COUNSEL

Dennis H. Eisman, with him Gerald A. Stein, and Needleman, Needleman, Tabb & Eisman, for appellant.

Bernard A. Moore, Assistant District Attorney, with him Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J.

Author: Jacobs

[ 227 Pa. Super. Page 20]

In this appeal, appellant contends that improper reference was made at trial to his failure to make any statements to police after his arrest. We agree, and must, therefore, reverse. Although we will not discuss other allegations of trial and sentencing errors, which may not arise at appellant's new trial, we will discuss the order of the suppression judge denying appellant's motion to suppress certain evidence.

On February 3, 1972, after securing a search warrant, police conducted a search of a house, a garage,

[ 227 Pa. Super. Page 21]

    and five abandoned vehicles located at 752 Orvilla Road, Hatfield Township, Montgomery County, Pennsylvania. They uncovered large quantities of narcotic and other dangerous drugs. Appellant, Paul Anthony Greco, who had given the police entry to the house, was then arrested and charged with violation of The Drug, Device and Cosmetic Act of September 26, 1961, P. L. 1664, 35 P.S. ยง 780-1 et seq. After a hearing, appellant's motion to suppress the evidence seized by police was denied. He was then tried and found guilty by a jury. Following a denial of his post-trial motions, appellant received the sentence from which he has appealed.

At trial, Trooper Wesoloski, the arresting officer, testified on direct examination for the Commonwealth that he had "placed Mr. Greco [appellant] under arrest and advised him of his Constitutional rights." The prosecuting attorney then asked: "Did Greco ever say anything to you?" The arresting officer replied: "We had several conversations. I advised him to -- that he had the right to remain silent, and he didn't actually make any statements other than general conversation." [Emphasis added.] At that moment, defense counsel objected and moved for a mistrial. The court below denied the motion and the testimony was permitted to stand. No instructions concerning the testimony were given to the jury.

Appellant now contends, as he did at trial, that it was prejudicial error to admit this testimony referring to his failure to make any statements to the police. On the other hand, the Commonwealth argues that such testimony was inadvertently elicited and did not refer to appellant's silence since appellant had several conversations with the police.

In Commonwealth v. Haideman, 449 Pa. 367, 373, 296 A.2d 765, 768 (1972), the Pennsylvania Supreme Court held that "reversible error was committed in admitting, at ...


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