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decided: April 7, 1976.



Raymond C. Schlegel, Thomas M. Golden, Reading, for appellant.

Grant E. Wesner, Deputy Dist. Atty. for Law, Charles M. Guthrie, Reading, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts and Manderino, JJ., filed dissenting opinions.

Author: Nix

[ 467 Pa. Page 276]


Appellant, William Francis Kahley, a/k/a Gerald Guido, was tried and convicted by a jury in the Court of Common Pleas, Berks County, on charges stemming from the robbery and shooting death of one Frank James Szabo in the victim's home on February 19, 1973. Post-trial motions in arrest of judgment were filed, argued and denied. Judgment of sentence was imposed and this appeal followed.*fn1

Appellant first argues that the trial court erred in admitting into evidence testimony by a state trooper that he had invoked his Fifth Amendment privilege and refused to answer questions at the time of his arrest.

[ 467 Pa. Page 277]

We have recognized that testimonial reference to an accused's silence at the time of arrest is a constitutionally impermissible violation of the accused's right against self-incrimination under both the Federal Constitution, Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972) and our Pennsylvania Constitution, Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973). Further, we have stated that the difference between prosecutorial use of an accused's silence at trial, which was expressly condemned by the United States Supreme Court in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and the use of the accused's silence at the time of arrest as being "infinitesimal". Commonwealth v. Haideman, supra at 370, 296 A.2d at 767. However, the essence of this objection which compels the award of a new trial is that the improper reference to the accused's exercise of his constitutional right is made either by the prosecution or by the Court. Griffin v. California, supra. The constitutional protection involved will not tolerate the Commonwealth or the Court suggesting that an accused's resulting silence is evidence of guilt. Thus, the inapplicability of this principle is obvious where, as here, the testimonial reference to the accused's silence was first introduced by the defense.

The record reveals that defense counsel, during cross-examination of the state trooper, elicited the following responses:

"Q. After you took Mr. Kahley into custody, did you question him?

A. No, sir, I did not.

Q. Do you know if any state policeman questioned him?

A. No, sir, they did not.

Q. No state policeman asked him any questions?

A. We attempted to question Mr. Kahley and he exercised his rights under the Fifth Amendment.

[ 467 Pa. Page 278]

Q. Well, it is correct, is it not, that he has never said to you that he was at the Szabo residence?

A. That is correct.

Q. He has never said that he was there?

A. That is correct.

Q. Well isn't it correct that he has been in custody since February 13, 1974?

A. Yes, sir."

This was not an instance of a witness blurting out prejudicial information in an unresponsive answer. The questions posed deliberately extracted the information that now forms the basis of appellant's complaint. Defense counsel made no effort to eradicate the possible prejudice of this answer by a request that the answer be stricken or that curative instructions be immediately given. To the contrary, it is apparent, that the defense sought to use this testimony to support the theory of the defense, that Kahley was not present at the scene of the crime.

The Commonwealth, in an effort to offset this tactical move by the defense, posed the following question during re-direct examination of this witness -- the answer was received without objection by the defense.

"Q. Trooper Pease, on cross-examination, you were asked whether you questioned the defendant, Mr. Kahley, and you indicated that you did not. You also indicated that he would not answer any questions after you advised him of his Fifth Amendment rights?

A. That's correct."

Although we have held that the failure to challenge an accusation does not permit an inference of a tacit admission, Commonwealth v. Schmidt, 452 Pa. 185, 204-207, 299 A.2d 254 (1973); Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85-88, 223 A.2d 296 (1966) we have never suggested that silence should be construed to be an affirmative denial of the proposition presented. This

[ 467 Pa. Page 279]

    is obviously the inference the defense attempted to gain from the reference to Kahley's silence. The exercise of the privilege was merely a neutral act from which no inference, either affirmative or negative, could properly have been drawn and the Commonwealth still maintained its burden to establish the fact asserted by other evidence. At this juncture, either side could have requested an instruction from the Court and eliminated this illusory issue. Regrettably, neither elected to do so. The defense presumably sought to press its advantage and the Commonwealth (probably unwisely) attempted to further clarify its position by additional questioning. The following transpired:

"Q. Trooper Pease, will you in detail advise the Court and the jury what you did in relation to advising Mr. Kahley of his rights and his response thereto in regard to your questioning of him?

MR. SCHLEGEL [Defense counsel]: May it please the Court, I object to that. We haven't raised any question that the defendant's rights were violated and I don't think that going into this in detail is relevant.

THE COURT: Well, I think the nature of the words between Trooper Pease and the defendant has been raised and we might as ...

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