decided: February 18, 1977.
COMMONWEALTH OF PENNSYLVANIA
GEORGE JUSTICE MITCHELL, APPELLANT
Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Crim. at No. 1179, 1974. No. 1500 October Term 1975.
Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
Robert A. Longo, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Price, J., files a dissenting opinion in which Watkins, President Judge, and Van der Voort, J., join.
[ 246 Pa. Super. Page 134]
On appeal from his conviction for theft, appellant claims that the trial judge erred (1) in permitting testimony by the arresting officer that appellant chose to remain silent, and (2) in prohibiting appellant from offering witnesses who would testify that a third party had told them that he, and not appellant, had committed the crime. We reverse on the first ground and therefore do not reach the second.*fn1
[ 246 Pa. Super. Page 135]
The arresting officer testified that after giving the Miranda warnings, he questioned appellant as follows:
I then asked him about the burglary at Doctors Brady, Kegel and France Offices, and he denied any knowledge of the burglary.
I then confronted him with the lug wrench [found at the scene of the burglary] and told him that this is how I broke the case, and he immediately made recognition of the lug wrench. He said, oh, that was ripped off, stolen from my apartment sometime in April or May, along with a stereo set. He said, I have a lot of Toyota tools in my apartment.
I then advised him that I had contradictory information regarding his possession of the lug wrench, and then he said he had no more to say and would commit suicide.
THE COURT: What is that?
THE WITNESS: He had no more to say, and he would commit suicide.
THE COURT: I don't get the commit suicide. Did he say he would commit suicide?
[ 246 Pa. Super. Page 136]
THE WITNESS: He would commit suicide if he went to the county prison, Your Honor.
Defense counsel timely objected to the officer's testifying that appellant had said he had no more to say.*fn2 The objection was overruled; a cautionary instruction was requested and denied; and the objection was properly preserved by post-trial motions.
In his opinion the trial judge made two decisions: first, that by making a statement to the arresting officer appellant had waived his right to remain silent; and second, that the testimony regarding appellant's statement that he had nothing to say "[did] not amount to a statement by the officer that the defendant remained silent after being advised of his constitutional rights." We agree with the first of these decisions, that appellant waived his right to remain silent when he was initially willing to answer the officer's questions. However, we do not agree with the second. A waiver of the right to remain silent may be withdrawn, and the right asserted, see Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Dulaney, 449 Pa. 45, 48, 295 A.2d 328, 330 (1972); Commonwealth v. Williams, 224 Pa. Super. 298, 300, 307 A.2d 289 (1973); and appellant, by stating that he had no more to say, did precisely that.*fn3 Had appellant initially
[ 246 Pa. Super. Page 137]
asserted his right to remain silent, the prosecutor could not have elicited testimony calling the jury's attention to that assertion, because to do so would be to use appellant's silence against him. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). It follows that neither may the prosecutor elicit testimony calling the jury's attention to a belated assertion of the right, for again, to do so would be to use appellant's silence against him. The right not to have one's silence used against one does not depend upon whether the right is asserted at the beginning of interrogation or later on. Commonwealth v. Dulaney, supra; Commonwealth v. Greco, 227 Pa. Super. 19, 323 A.2d 132 (1974); Commonwealth v. Williams, supra.*fn4 It follows that defense counsel's objection to the testimony was well-taken, and that the trial judge erred in overruling the objection.
Some of the appellate decisions indicate that such error by itself requires the grant of a new trial. See Commonwealth v. Dulaney, supra at 48, 295 A.2d at 330; Commonwealth v. Greco, supra, 227 Pa. Super. at 22, 323 A.2d at 134. However, that is not the only alternative, as is evident from the Supreme Court's recent decision in Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237
[ 246 Pa. Super. Page 138]
(1976). In some cases the trial judge might justifiably decide at the time of defense counsel's objection that the error could, by the end of the prosecution's case, prove harmless. He might then conclude that it was sufficient to give a cautionary instruction to the jury to diregard the inadmissible testimony, explaining fully both the defendant's constitutional right to remain silent and the rule that the jury may draw no inferences of guilt from his assertion or re-assertion of that right. On appeal we would then determine whether the cautionary instruction was sufficient, or whether on the particular facts of the case the error was so prejudicial as to require a new trial. Here, however, we do not reach this question, for here, when defense counsel requested a cautionary instruction, the trial judge refused to give any. In order for an error of constitutional dimension, as this error was, to be found harmless, the Commonwealth must establish beyond a reasonable doubt that the error did not contribute to the judgment. Commonwealth v. Hale, 467 Pa. 293, 356 A.2d 756 (1976). Because the Commonwealth did not file a brief in this appeal, and because without the inadmissible testimony the case against appellant was largely circumstantial, we cannot conclude that the error was harmless. Accordingly, a new trial must be granted.
The judgment of sentence is reversed and the case remanded for a new trial consistent with this opinion.
PRICE, Judge, dissenting:
The majority correctly postulates that any reference by the prosecution at trial to an accused's assertion of his right to remain silent would be prejudicial. E. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Dulaney, 449 Pa. 45,
[ 246 Pa. Super. Page 139295]
A.2d 328 (1972); Commonwealth v. Greco, 227 Pa. Super. 19, 323 A.2d 132 (1975). I do not disagree, therefore, with the majority's statement of the law. However, I do believe that the majority has incorrectly applied the law to the present fact situation.*fn1
The appellant was accused of committing a burglary of a medical office in Lancaster, Pennsylvania, which resulted in the theft of a quantity of drugs. After his arrest, and despite being warned that he had a right to remain silent, the appellant readily responded to police questioning concerning the incident. First, under general examination, the appellant emphatically denied any knowledge of the burglary. Next, the appellant immediately identified a lug wrench which had been found at the scene of the crime as one which he owned, explaining that the wrench, and a stereo set, had been recently stolen from his appartment. The police examiner then advised the appellant that his explanation was contradicted by other information which had been received by the police. The appellant failed to expand or vary his explanation, stating that "he had no more to say. . . ."
Unlike the majority, I do not interpret the appellant's remark as an assertion of his right to remain silent. I believe that the appellant's statement, viewed in context, indicates solely that the appellant had finished relating his knowledge of the questioned incident to the police. We must distinguish circumstances in which an accused truly exercises his right to remain silent by withdrawing his consent to be questioned from those circumstances in which an accused can no longer answer police questions because he has completely told all that he is able to tell.
I would affirm the judgment of sentence.