Appeal from order of Court of Common Pleas of Bucks County, No. 1148 of 1972, in case of Commonwealth of Pennsylvania v. Eugene Brown and Maurice Davis.
Martin J. King, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.
Michael A. Klimpl, Assistant Public Defender, with him Edward A. Stutman, of Counsel, and James M. McNamara, Public Defender, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Spaeth, J., concurs in the result.
[ 229 Pa. Super. Page 212]
This is an appeal by the Commonwealth from the court en banc's grant of a new trial to both defendants because a Commonwealth witness at trial referred to their refusal to make a further statement without having an attorney present. For authority, the court relied entirely on our Supreme Court's decision in Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). Since no challenge has been made to the Commonwealth's right to appeal, and a pure question of law is presented, the interpretation of Haideman, we will consider the merits of the appeal. See Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967); Commonwealth v. Hall, 217 Pa. Superior Ct. 218, 269 A.2d 352 (1970).
At trial, Detective Charles Glogouski was called as a witness by the Commonwealth. He testified as to the arrest of the defendants in connection with an attempted holdup of a bar; his receipt of a shotgun and a pistol that had been taken from the defendants; and a statement made by defendant Davis admitting ownership of the weapons. On cross-examination, defense counsel questioned the detective as to the warnings given the defendants and other matters, and then asked: "Now, did you ask these defendants what happened in the
[ 229 Pa. Super. Page 213]
bar?" To this the witness replied: "As I recall, after the initial statement by Mr. Davis that the weapons were his, both declined to make a further statement without having an attorney present, and I at that time finished my interrogation of both of them. I asked them no further questions." [Emphasis added.] Defense counsel immediately asked the court for a mistrial which was denied. However, after both defendants were found guilty by the jury, the court en banc granted a new trial on the basis of Commonwealth v. Haideman, supra.
On this appeal, the Commonwealth argues that Commonwealth v. Haideman, supra, is distinguishable from the situation in the present case. We agree and reverse the order of the court en banc.
In Haideman, the Commonwealth in its case in chief asked its witness, a police officer: " When the constitutional rights were read to the defendant, did the defendant say anything? " The officer replied: " He didn't say nothing; he calmed down and shut up." Id. at 370, 296 A.2d at 766. After defense counsel's objection to such testimony was overruled, the Commonwealth called another witness who testified that "[defendant] was advised of his constitutional rights, which he stated he understood, and also requested to remain mute pending counsel." Id. Our Supreme Court went on to rule that "the prosecution may not -- as was done here -- introduce at trial the fact that the accused 'stood mute or claimed his privilege.'" Id. at 372, 296 A.2d at 768. Our Court has followed this ruling and in Commonwealth v. Greco, 227 Pa. Superior Ct. 19, 323 A.2d 132 (1974), we granted a new trial because the Commonwealth had introduced at trial testimony that the accused did not make any statements after being advised of his right to remain silent.
In the present case, the Commonwealth had completed its direct examination ...