decided: January 24, 1979.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
ANDREW EASLEY, APPELLANT
No. 782 January Term 1977, Appeal from the Order of the Superior Court at No. 1941 October Term 1975, affirming the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia, at Nos. 314 and 316 October Term 1974.
Benjamin Lerner, Defender, John W. Packel, Asst. Defender, Chief, Appeals Div., Patricia J. Pierce, Philadelphia, for appellant.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., H. Nathaniel Metz, Philadelphia, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., and Pomeroy, former J., did not participate in the decision of this case. Larsen, J., dissents.
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OPINION OF THE COURT
Andrew Easley was convicted by a jury of simple assault, aggravated assault, and violating The Uniform Firearms Act.*fn1 Post-verdict motions were denied, and judgment of sentence of not less than five years nor more than ten years imprisonment was imposed on the aggravated assault conviction. The trial court also imposed a concurrent term of not less than one year nor more than three years imprisonment on the firearms convictions. An appeal was filed in the Superior Court, which affirmed the judgments of sentence. Commonwealth v. Easley, 245 Pa. Super. 41, 369 A.2d 283 (1976).*fn2 We granted a petition for allowance of appeal, and now reverse and remand for a new trial.
The prosecution arose from the shooting of Linda Wilson on September 5, 1974, in a public housing project in Philadelphia. At trial, the Commonwealth established, through the testimony of the complainant, Wilson, the following facts:
At approximately 5:30 p. m. on the above date, Wilson opened the door to her apartment in order to permit Easley, whom she knew as "Bo," to enter. Easley, accompanied by his brother,*fn3 entered the apartment and shoved the complainant against a refrigerator. He then pointed a gun at
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her and threatened to "blow her brains out" because she allegedly beat his mother. Wilson fell to the kitchen floor, and Easley kicked her, threw hot grease on her, and struck her with a kitchen utensil. As the complainant lie on the floor, Easley attempted to fire the gun at her, but the bullets kept ejecting and falling on the floor. He then threw Wilson into the living room and struck her with a wine bottle. Easley next demanded the address of a person who previously lived with the complainant. When Wilson went into her bedroom to get the address, Easley pushed her onto a bed and shot her in the chest.
Easley was apprehended by the police as he left the building project. At the time, he had in his possession a .25 caliber automatic revolver, a clip for the weapon, and a box of ammunition.
Testifying in his own defense at trial, Easley claimed the shooting was in self-defense. He admitted visiting Wilson's apartment on the day of the shooting, but only to determine the veracity of rumors which related she had been involved in the beating of his mother. Easley accounted that he was conducting a friendly conversation with the complainant until he mentioned his mother's beating; that, at that time, she tried to "dash" a pan of grease on him; that he jumped out of the way; that she then took a gun from between the stove and sink and pointed it at him; that he then grabbed a wine bottle and threw it at her; that, as she flinched, he rushed her and grabbed the gun; and, that, as they tussled, the gun went off wounding her. According to Easley, he then emptied the gun of the remaining bullets, confiscated a box of ammunition from between the stove and sink, and exited the apartment in order to take the gun, the clip, and the ammunition to the police.
During cross-examination, the assistant district attorney asked Easley whether or not he told the authorities at the time of arrest what took place in Wilson's apartment. Easley responded he did not account his version of the shooting to the police who arrested him or to the investigating detective. He testified that he "asked them would it be all
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right with him [a detective] if [he] remain[ed] silent" and that the detective said "[y]ou can do what you want to do."*fn4 Easley further testified the authorities did not warn him of his constitutional right to remain silent.*fn5 He did in fact, however, remain silent at the time of arrest.
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Subsequently, in his closing argument to the jury, the assistant district attorney referred to Easley's silence at the time of his arrest. The prosecutor stated:
"He said he was going to walk down over to Wolf Street, and conveniently he was going to take the bullets, he was going to take the clip, he was going to take the gun and he was going to tell the police just what happened.
"Unfortunately for him someone called the police in the meantime and they catch him and his brother coming down the stairs.
"Now, at that time does he tell the police? He has the right to remain silent. You have heard that. You know that. But he told us here he is going to tell the police the whole thing was an accident. Does he ever tell anybody that?
"Now today he does. After he has access to all these notes for five or six months.
"[Defense Attorney]: Objection, Your Honor.
"The Court: Overruled."
Easley argues the trial court committed reversible error in permitting the assistant district attorney, over objection,*fn6 to comment adversely on Easley's exercise of his constitutional right to remain silent at the time of arrest and until taking the stand in his own defense.*fn7 We agree.
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An accused's constitutional privilege against self-incrimination is violated when a prosecutor in his summation to the jury makes reference to the accused's silence while in police custody. Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973); Commonwealth v. Dulaney, 449 Pa. 45, 295 A.2d 328 (1972). See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). Instantly, the Commonwealth argues Easley's constitutional privilege to remain silent was not violated because the comment by the assistant district attorney during his summation to the jury was not intended to suggest to the jury that Easley's guilt could be inferred from his silence at the time of arrest, Commonwealth v. Stafford, supra, nor intended to impeach the exculpatory version of the shooting which Easley presented at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) [hereinafter: Doyle ]. According to the Commonwealth the reference to Easley's silence was specifically intended to rebut the impression, created by Easley during direct examination, that he exited Wilson's apartment intending to summon the police. The Commonwealth asserts the use of Easley's silence at the time of arrest for this limited purpose is not an infringement upon
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Easley's constitutional right to remain silent as that right has been interpreted by the United States Supreme Court and this Court.*fn8
While the district attorney's comment may have been intended to impeach Easley's claim that he fled the apartment intending to summon the police, we believe the comment, fairly read, implied to the jury that Easley's silence at the time of arrest was evidence of guilt. Commonwealth v. Stafford, supra. In so commenting, the prosecutor suggested the jury could infer guilt from Easley's protracted silence, rather than merely infer Easley's testimony concerning his intention to cooperate with the authorities at the time of his arrest lacked credibility. To approve the prosecutor's comment in the instant case would penalize Easley for exercising his constitutional privilege against self-incrimination. Therefore, we hold the trial court committed reversible error in permitting the assistant district attorney
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over timely objection to comment adversely on Easley's exercise of his right to remain silent.
Order and judgments reversed and a new trial is ordered.