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COMMONWEALTH v. MOSS (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
MOSS, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1973, Nos. 885 to 892, inclusive, in case of Commonwealth of Pennsylvania v. Valaida Moss.

COUNSEL

Isaiah W. Crippins, for appellant.

Benjamin H. Levintow, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.

Author: Van Der Voort

[ 233 Pa. Super. Page 542]

This appeal arises from a judgment of the Court of Common Pleas of Philadelphia County wherein the appellant, Valaida Moss, was held to be in contempt. This judgment had its genesis on June 18, 1973, when appellant was indicted on charges of receiving stolen goods, forgery, and uttering and publishing forged instruments. On July 18, 1974, at the request of the Commonwealth, Moss was ordered by the lower court to give handwriting samples. She refused to do so upon the advice of counsel, citing Article I, Section 9 of the Constitution of the Commonwealth of Pennsylvania.*fn1 After the judgment of contempt which followed this refusal, appellant raises the identical claim in our Court. Appellant, however, raises no argument based upon either the Fourth or Fifth Amendment to the United States Constitution.

[ 233 Pa. Super. Page 543]

The precise issue raised by appellant, it is argued, creates a question of first impression before the Appellate Courts of our Commonwealth. While this claim is questionable in some regards it is clear that we do not lack relevant precedent in case law developments both in the Federal Courts and in courts of many of our sister states. The United States Supreme Court, in Schmerber v. California, 384 U.S. 757, 764 (1966), made the following statement:

"[B]oth federal and state courts have usually held that it [the privilege] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." (Emphasis supplied).

Approximately one year later, the Supreme Court held specifically that the requirement that an accused supply handwriting exemplars was outside the protections of the U. S. Constitution's Fifth Amendment privilege against self-incrimination:

"A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its (the privilege) protection." See Gilbert v. California, 388 U.S. 263, 266-267 (1967).

[ 233 Pa. Super. Page 544]

On January 22, 1973, the United States Supreme Court issued decisions in United States v. Dionisio, 410 U.S. 1, and United States v. Mara, 410 U.S. 19. Dionisio upheld the constitutionality of requiring a subpoenaed witness before a grand jury to provide recorded voice exemplars, and in doing so reaffirmed its enunciations in Schmerber, Page 544} supra, and Gilbert, supra. More on point, Mara upheld an order holding the ...


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