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COMMONWEALTH PENNSYLVANIA v. ROGER ZELLNER (07/13/79)

decided: July 13, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ROGER ZELLNER, APPELLANT



No. 202 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Lehigh County, Criminal Division at Nos. 2145 and 2146 of 1975.

COUNSEL

Anthony M. Muir, Assistant Public Defender, Allentown, for appellant.

William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, and Hoffman, J., concur in the result. Spaeth, J., files a dissenting opinion. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 268 Pa. Super. Page 61]

This appeal arises from denial in the court below of appellant's motions for a new trial and in arrest of judgment following conviction by a jury of indecent assault*fn1 and corruption of a minor.*fn2 Appellant raises three contentions on appeal: (1) that he is entitled to a new trial because a Commonwealth witness made reference to his election to remain silent at the time of his arrest; (2) that the court erred in refusing to charge the jury that it must acquit appellant if it found he could have reasonably believed the victim to be over eighteen years of age; and (3) that the Commonwealth's proof failed in that it was not shown that the youth's morals were or could have been corrupted. For the reasons set forth herein, we affirm the judgment of sentence.

Evidence adduced at trial established that the victim, a minor, was standing near a display counter in the Whitehall Mall, Whitehall, Lehigh County, when appellant crawled up to her on his stomach. He placed his head up under the victim's skirt and touched her private areas with his hands.

During direct examination of Vincent C. Geiger of the Whitehall Police Department, the assistant district attorney asked, "Did you have any conversation with the Defendant? Did you talk to the Defendant?" Officer Geiger responded, "Let's say I tried to talk to him after I advised him of his rights, but he didn't want to give any statement

[ 268 Pa. Super. Page 62]

    or admission." (Volume II at 16-17).*fn3 Counsel objected and requested a mistrial, which was denied. The court was not requested to do so, and it gave no sua sponte instructions at that time. In his charge, however, the trial judge stated:

"During the course of the trial, Detective Geiger testified. You will recall he is the Prosecutor. He testified that, after giving the Defendant his constitutional rights, sometimes referred to as reading his Miranda rights, that the Defendant had the right to remain silent, you will recall Detective Geiger testified, 'The Defendant refused to talk.' I instruct you to disregard this statement, since no implication of guilt can be inferred from such a statement. In reviewing the testimony with respect to this, you should remember that the Defendant carries with him then and now a presumption of innocence. This presumption only leaves when you, the jury, find that the Commonwealth has proven, beyond a reasonable doubt, that the Defendant is guilty." (Volume I at 7).

Appellant maintains that he was entitled to a new trial and that sua sponte instructions could not ...


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