filed: October 26, 1979.
COMMONWEALTH OF PENNSYLVANIA
JAMES G. BROWN, JR., A/K/A JUNIOR BROWN, APPELLANT
No. 908 April Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at No. 7705981A.
Maureen I. Dunn, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, submitted a brief on behalf of the Commonwealth, appellee.
Van der Voort, Spaeth and Watkins, JJ. Van der Voort, J., files a dissenting opinion.
[ 271 Pa. Super. Page 332]
This is an appeal from judgments of sentence for kidnapping,*fn1 rape,*fn2 involuntary deviate sexual intercourse,*fn3 theft by unlawful taking,*fn4 and criminal conspiracy.*fn5 Appellant argues
[ 271 Pa. Super. Page 333]
that he should be granted a new trial because a police waiver form marked "refused" in the space for his signature was improperly sent out with the jury. We agree, and therefore do not reach appellant's other contentions.*fn6
Since both the lower court and the Commonwealth concede that what occurred here was error, the only issue before us is whether it was harmless. In Commonwealth v. Willams, 252 Pa. Super. 435, 446, 381 A.2d 1285, 1291 (1977), we said: "Reading [ Commonwealth v. ] Greco, [465 Pa. 400, 350 A.2d 826 (1976)], [ Commonwealth v. ] Maloney, [469 Pa. 342, 365 A.2d 1237 (1976)], [ Commonwealth v. ] Hinds, [244 Pa. Super. 182, 366 A.2d 1252 (1976)], and [ Commonwealth v. ] Mitchell, [246 Pa. Super. 132, 369 A.2d 846 (1977)] together, we believe that our appellate courts have found any reference to an accused's silence after arrest to be reversible error unless the trial court gives a prompt and adequate cautionary instruction." (Emphasis supplied.) Here, appellant's refusal to waive his Fifth Amendment rights was placed squarely before the jury. No curative instruction was given nor could it have been because the error was only discovered after the jury had reached its verdict. In these circumstances, appellant is entitled to a new trial.
Reversed and remanded for a new trial.
VAN der VOORT, Judge, dissenting:
I respectfully dissent for the reason that I believe that letting the jury see the Miranda warning notice marked "refused", if it was error, was harmless beyond a reasonable doubt.