Kenneth D. Brown, Assistant Public Defender, Williamsport, for appellant.
Robert F. Banks, First Assistant District Attorney, Greenville, and Allen E. Ertel, District Attorney, Williamsport, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result. Cercone, J., dissents based on Commonwealth v. Bighum,
[ 253 Pa. Super. Page 462]
Appellant was charged with two counts of burglary*fn1 and one count each of attempted rape*fn2 and aggravated assault with a deadly weapon.*fn3 He was found guilty in a trial by jury of all charges except attempted rape. A motion in arrest of judgment and for a new trial was denied by the court below. This appeal followed imposition of sentence.
Appellant argues that the court below erred in refusing to grant a mistrial when two Commonwealth witnesses commented upon appellant's assertion of his right to remain silent after receipt of his Miranda warnings. The Commonwealth called Trooper Robert Hanula of the Pennsylvania State Police. Hanula testified:
[ 253 Pa. Super. Page 463]
"As we drove along Mr. Quartman said, 'Ah Pete, ah Pete, you know me,' referring to Mr. Williams, Trooper Williams, excuse me. And Trooper Williams says, 'Don't ah Pete, ah Pete me.' He says, 'You don't know me.' And he said, 'I'm going to give you your rights.' So Trooper Williams read him his constitutional rights . . . he ask [sic] him did he understand them. He said, 'Ah Pete come on now, man. He said, you know and this type of talk. But then after that in his own admission, . . . he said, 'I was just trying to get me some peanuts.' . . . And I look at [sic] and I said, 'What do, what do you mean peanuts. What are you talking about?' . . . 'You know man, trying to get me a piece, trying to get me a piece.' And then he did say after Trooper Williams had Page 463} given him his rights, the first thing he said was that, 'Well, then I'm not going to say nothing.' He said he wasn't going to talk." (N.T. 243) (emphasis added).
Defense counsel objected immediately and the court sustained the objection. The court, however, refused a requested mistrial.
Trooper Peter Williams was called next by the Commonwealth. Williams was asked if appellant made any statements after being advised of his rights. Williams replied:
"Well, the only statements that he made, he kept saying why are we doing this to him, that it was him we were looking for and he was in the car, and he said, he was just trying to get him a piece. This was on the way to the barracks. And I questioned him, I said, 'Well, a piece of what?' He says, 'You know man, a piece,' you know. That's the only statements that he made, then he said, I told him to be quiet cause he was making a lot of noise in the car. He says, 'Well, I don't have to talk.' I says, 'No, you don't have to talk.' So he says, 'Well, I'm not talking then.'" (N.T. 247) (emphasis added).
Appellant relies upon Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976), in which the supreme court declared it reversible error to admit evidence of a defendant's silence at the time of arrest. Such a reference is not, however, automatic justification for a new trial. Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976). In this case, we find that the lower court did not err in refusing the requested mistrial.
First, from Trooper Williams' testimony, it appears that appellant's silence occurred not as an exercise of the right against self-incrimination, but rather as his response to a request to keep quiet. That being so, no rule of law would render testimony in that regard prejudicial error. Secondly, both the lower court judge in his opinion denying post-trial motions and appellant's counsel in his brief to this court indicate ...