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COMMONWEALTH PENNSYLVANIA v. RICHARD SINGLETARY (06/02/78)

SUPREME COURT OF PENNSYLVANIA


decided: June 2, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD SINGLETARY, APPELLANT (TWO CASES)

Nos. 451 and 558 January Term 1976, Appeals from the Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 700 and 701 June Term 1975.

COUNSEL

E. Yvonne Grear, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Jane C. Greenspan, Asst. Dist. Atty., for appellee.

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

Author: Eagen

[ 478 Pa. Page 611]

OPINION OF THE COURT

These appeals are from the judgments of sentence imposed on Richard Singletary following his conviction by a jury in Philadelphia of murder of the third degree and a related criminal offense. We reverse and award a new trial.

The following inquiries were directed to Singletary by the district attorney during cross-examination at trial:

"Q. Your attorney arranged to have you surrender to the police; is that correct?

"A. That's correct.

"Q. All right. Now, at some point either you called him or he called you and said, 'This is when we're going to turn you in;' is that correct?

"A. That's correct.

"Q. And then you came to Philadelphia and met your attorney; is that correct?

"A. That's correct.

"Q. And you went down to the Police Administration Building?

"A. That's correct.

"Q. And on advice of counsel, you made no statement concerning the case."

An objection to the questions was sustained. A motion for a mistrial was denied and, in lieu thereof, cautionary instructions were given by the trial judge.

It is a violation of the accused's constitutional privilege against self-incrimination to make reference to his silence while in police custody. United States v. Hale, 422 U.S. 171,

[ 478 Pa. Page 61295]

S.Ct. 2133, 45 L.Ed.2d 99 (1975); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972); Commonwealth v. Dulaney, 449 Pa. 45, 295 A.2d 328 (1972). To approve the inquiry made by the district attorney instantly would penalize Singletary for exercising his Fifth Amendment privilege while in police custody, a privilege he was exercising on the advice of counsel.

The Commonwealth argues that if error occurred, it was "effectively cured" by the cautionary instructions.*fn1 We disagree.

As we pointed out in Commonwealth v. Greco, supra, 465 Pa. at 404, 350 A.2d at 828, where one is accused of a criminal offense and remains silent, a lay person could and probably would consider this silence to be an unnatural reaction unless the accused was in fact guilty. We are not persuaded that the cautionary instructions eradicated this prejudicial inference. Cf. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976) cited by the Commonwealth is not controlling.*fn2 In Maloney the defendant's silence at the time of arrest was introduced initially without objection. Additionally, the court's instructions were there more adequate and decisive.

Judgments reversed and new trial ordered.


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