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decided: January 29, 1976.



Milton O. Moss, Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Bernard A. Moore, J. David Bean, Asst. Dist. Attys., Norristown, for appellant at No. 620 and appellee at No. 621.

Dennis H. Eisman, Gerald A. Stein, Needleman, Needleman, Tabb & Eisman, Philadelphia, for appellant at No. 621 and appellee at No. 620.

Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ. Pomeroy, J., did not participate in the consideration or decision of this case. Jones, C. J., and Nix, J., dissent.

Author: Manderino

[ 465 Pa. Page 403]


Appellant, Paul Anthony Greco, was tried and convicted by a jury of violation of the Drug Device and Cosmetic Act of Sept. 26, 1961, P.L. 1664, § 1 et seq., 35 P.S. § 780-1 et seq. He appealed, and the Superior Court reversed and ordered a new trial because of testimony by a prosecution witness which referred to appellant's exercise of his constitutional right to remain silent. Commonwealth v. Greco, 227 Pa. Super. 19, 323 A.2d 132 (1974). The Superior Court also considered appellant's assertion that a search warrant used by police was defective and ruled against appellant. It did not consider several other alleged errors raised by appellant. We granted petitions for allowance of appeal filed by both the prosecution and the defense.

We first consider the prosecution's appeal contesting the Superior Court's grant of a new trial. At trial, Stanley Wesoloski, a state policeman, testified for the prosecution. He said that he had arrested appellant and informed him of his constitutional rights. In response to the prosecutor's question "Did Greco ever say anything to you?", Wesoloski testified: "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." Appellant's motion for a mistrial was denied by the trial judge. The Superior Court held that Wesoloski's testimony was prejudicial and entitled appellant to a new trial. We agree.

The law is clear. It is reversible error to admit evidence of a defendant's silence at the time of his arrest. Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Commonwealth v. Haideman, 449 Pa. 367,

[ 465 Pa. Page 404296]

A.2d 765 (1972). The prohibition of any reference to an accused's silence reflects the court's desire that an accused not be penalized for exercising his constitutional rights. Commonwealth v. Stafford, supra; Commonwealth v. Haideman, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is a recognition that most lay persons would view an assertion of the constitutional privilege as an admission of guilt. Commonwealth v. Haideman, 499 Pa. at 371, 296 A.2d at 767, citing Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968).

The prosecution argues that it expected an answer different from that given by the witness, and thus did not intend to raise such an inference of guilt in the minds of the jury. The prejudice which resulted, however, did not occur because of inferences which the jury might have drawn from what the prosecutor did or did not intend. The prejudice resulted because of the inferences which might have been drawn from the appellant's reaction when told of the constitutional right to remain silent. Lay persons might conclude that the natural reaction of an innocent person would be a denial of any involvement in the crime charged. See Commonwealth v. Schmidt, 452 Pa. 185, 299 A.2d 254 (1973); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). The failure to deny might thus be considered an unnatural reaction unless the accused was in fact guilty. The witness's testimony that the appellant "didn't actually make any statements other than general conversation" necessarily carries the implication that the appellant remained silent and failed to deny his involvement. Such testimony implies an admission of guilt. An admission of guilt constitutes highly prejudicial evidence and cannot be considered harmless error. The order of the Superior Court granting a new trial is therefore affirmed.

Appellant Greco raised several other issues before the Superior Court. One of those issues ...

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