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March 21, 1980


No. 2363 October Term, 1978, Appeal from the Judgment of Sentence on August 7, 1978, by Judge Leonard Sugerman of the Court of Common Pleas, Chester County, Pennsylvania (No. 017576).

Before Price, Watkins And Hoffman, JJ.

Per Curiam:

Judgment of sentence affirmed on tne opinion of Judge Sugerman.






The Defendant, Henry Junius Clark, was convicted by a jury on June 23, 1976 of robbery, theft by unlawful taking, and criminal conspiracy*fn1 Post-trial, the Defendant filed timely motions for a new trial and in arrest of judgment, and following the submission of briefs, without argument, the motions were dismissed by Order dated June 28, 1977.

The Defendant was thereupon sentenced upon the robbery conviction to a term of imprisonment of not less than ten nor more than twenty years, and sentence was suspended upon the theft and conspiracy convictions. The Defendant now appeals to the Superior Court of Pennsylvania from the judgment of sentence and in accordance with Pa. R.A.P. 1925(a), we file this Memorandum Opinion in support of our Order dismissing the Defendant's post-trial motions. Although the Defendant's motions assign twelve asserted errors as the basis for relief, he has briefed only three, and has asserted a new ground in his brief. We consider as waived those errors asserted in post-trial motions neither briefed nor argued: Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978). We discuss seriatim the four asserted errors urged by the Defendant as grounds for the grant of a new trial.


Defendant's Drugged Condition

Pre-trial, the Defendant, an admitted heroin addict, filed a motion to suppress a statement given by him to the police some six hours following his arrest, contending that he did not knowingly and intelligently waive his constitutional rights before making the challenged statement as he was then suffering withdrawal symptoms during police interrogation, thus permitting his will to be overcome, and thereby rendering his statement inadmissible. At the suppression hearing, the Defendant also alleged that at the time he made his incriminating statement, he was under the influence of a drug administered at a local hospital.

It is well established that on review from a finding of voluntariness, as a court en banc, we must consider the Commonwealth's evidence and so much of the evidence presented by the defendant as remains uncontradicted. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). So viewed, the facts developed at the suppression hearing are these:

At approximately 5:30 P.M., on Wednesday, January 28, 1976, two men entered an A & P Market in the Borough of West Chester and walked to the check-cashing counter. As one asked the assistant manager at the counter if he might cash a check, the other withdrew a sawed-off shotgun form his coat and announced a "hold-up". Within a matter of minutes, the two had relieved the assistant manager of the day's receipts of approximately $8,000 and thereupon filed the store. As the two ran to their automobile, they were observed by a witness who notified the West Chester Police Department of the incident.

The West Chester Police Department immediately broadcast a description of the two felons and the automobile in which they departed the store. At approximately 6:00 P.M., the two, in their automobile, were observed traveling through the Borough of Downingtown some eight miles from West Chester, by a Downingtown police officer cruising in a patrol car who had been alerted by the police radio broadcast.

The vehicle was stopped by the Downingtown police officer and the person seated in the passenger seat fled the scene and was not immediately apprehended. The Defendant, seated in the driver's seat, was arrested, taken into custody, given his Miranda warnings and removed to the Downingtown Police Station.

At the station, a Downingtown police officer began to take a personal history from the Defendant and at approximately 6:45 P.M., the two were joined by a Chester County detective who assisted in taking the personal history. During this period, the Defendant appeared to be in good health and mentally alert. In response to the Defendant's request, the group moved to a more private room in the station where they remained until approximately 8:00 P.M.

At this time, the Chester County detective noted that the Defendant began to perspire and become "fidgety", complaining that he was "coming down" from the effect of an unspecified quantity of narcotics taken earlier that day.

The Defendant was then placed in a detention cell at the Downingtown Police Station to await transportation to West Chester. At 9:00 P.M., while in the cell, a West Chester police officer arrived and served a search warrant upon the Defendant authorizing a search of the automobile in which he was found. The Defendant remained in the detention cell while the search warrant was executed, and at approximately 10:20 P.M., Sergeant Canzoneri of the West Chester Police Department arrived at Downingtown to escort the Defendant to West Chester. During the trip, Sergeant Canzoneri said nothing to the Defendant and asked him no questions, and the Defendant said nothing to Canzoneri.

Canzoneri and the Defendant arrived at the West Chester Police Station shortly before 11:00 P.M., and as they reached the rear door of the station, the Defendant told Canzoneri he was "coming down" and then said "I'll tell you what you want to know. Gary Smith was the other guy that was with me.". Following these remarks, Sergeant Canzoneri said nothing to the Defendant and again asked him no questions. Upon entering the station, the Defendant appeared quite nervous and continued to perspire. As handcuffs were removed from him, he was asked if he were ill and answered that he was and asked for medical attention. Responding to the Defendant's request, two officers of the West Chester Police Department took the Defendant to the Chester County Hospital where the drug Vistaril was administered to the Defendant. The medication calmed the Defendant and within the hour he was returned to the West Chester Police Station, arriving at midnight. The Defendant then immediately expressed a desire to speak with the police, was again given his Miranda warnings, and at 12:03 A.M., commenced to give the police an incriminating statement, ultimately reduced to writing and signed by the Defendant.

Pre-trial, the Defendant moved to suppress the statement on the ground that it was involuntary, and following a suppression hearing, the motion to suppress was denied upon a finding by the hearing judge that the statement, and the Defendant's waiver of his constitutional rights were voluntary, knowing and intelligent acts. The Defendant now asserts that the medication administered to him at the Chester County Hospital so diminished his will that neither the waiver not the statement were the products of a rational intellect or a free will, Mincey v. Arizona, U.S. , 98 S. Ct. 2408 (1978).

We begin as we must by noting the familiar principle that although there is no single litmus paper test for determining the voluntariness of a confession, the Commonwealth must establish that the decision to speak on the part of an accused was a product of a free and unconstrained choice, Culombe v. Connecticut, 367 U.S. 568 (1961); Commonwealth v. O'Bryant, 479 Pa. 534, 539-40, 388 A.2d 1059, 1062, cert. denied 99 S. Ct. 589 (1978). The Supreme Court of Pennsylvania has frequently described the guidelines underlying our inquiry:

"... All attending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of the delay between arrest and arraignment; the conditions of detainment; the attitudes of the police toward the defendant; defendant's physical and psychological state; and all other conditions present which may serve to drain one's power of resistance to suggestion or to undermine one's self-determination..." Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976).

And see Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978) and Commonwealth v. Joyner, 475 Pa. 345, 380 A.2d 754 (1977). In the context of the Defendant's argument at bar, the Court has also held that the ingestion of drugs does not of itself prevent one from knowingly or intelligently waiving constitutional rights. See, e.g., Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Cornish, supra; Commonwealth v. Taylor ; 472 Pa. 1, 370 A.2d 1197 (1977).

Although evidence that an accused was under the influence of drugs bears heavily on the ultimate determination of voluntariness, we are required to engage in a balancing test: the degree of influence may be so pervasive that this factor alone is sufficient to render the confession involuntary; conversely, the evidence of drug influence may be such that the accused's will has not been overborne by that fact alone, and the Court must find evidence of psychological or physical coercion in order to invalidate the confession. Commonwealth v. Watson, 239 Pa. Super. 426, 434-35, 360 A.2d 710, 714, allocatur refused (1976). In order to properly strike the balance, in addition to considering all the attendant circumstances, Commonwealth v. Kichline, supra, we must also consider the type and quantity of the drug in question, the time or times the drug was consumed, and whether an impairment of the accused's faculties ensued, Commonwealth v. Pugh, supra at 450, 383 A.2d at 186.

Within the framework of these principles, then, we have examined the record of the suppression hearing and find adequate support for the determination that the Defendant's waiver and statement were voluntary, knowing and intelligent.

Doctor Pereira-Ogan, a physician called by the Commonwealth at the suppression hearing, testified that the drug Vistaril, known generically as hydroxyzine, is a mild sedative and is clinically administered to persons withdrawing from the effects of alcohol and other drugs, as well as surgical patients. The drug is in general use in emergency rooms and surgical wards as it produces a "calming" effect and diminishes anxiety. Vistaril does not tranquilize, has no effect on brain function, and in fact increases awareness and attention span. Only one dose of the drug was administered to the Defendant at 11:45 P.M., in the quantity of 100 milligrams, considered to be an average dose.

The widespread use of Vistaril in pre-surgical procedures is attributed to a property which, unlike tranquilizers and other sedatives, has no effect upon the cortex of the brain, thereby permitting the patient to remain alert. The drug has no properties similar to sodium amytal or sodium pentothal, the so-called "truth serums", has no effect upon the will, and except insofar as it may alleviate a nervous and anxious state, has no effect upon the ability of the mind to resist.

We do not repeat here all the testimony offered by Doctor Pereira-Ogan concerning Vistaril except to note his response to a question by the suppression court, summarizing the properties of the drug:

"THE COURT: Suppose when he came to you without the effect of any of these drugs [heroin and cocaine], he was reluctant and didn't want to speak to you about a particular subject and you injected or gave him, administered Vistaril...

Would he be more likely to then reveal to you this inner secret?




In other words, I would not be able to elicit from anybody something like, you know, making him do or say something that for reasons such as the safeguard of his own legitimate right not to say anything to anybody, you know, he would have.

THE COURT: Vistaril would have no effect on the person?

THE WITNESS: No, Your Honor. No." (Transcript of Suppression Hearing, hereinafter, "T.S.", 27-28)

Finally, as if to summarize the utility and effect of Vistaril generally, Doctor Pereira-Ogan testified:

"A. It is a very mild drug.

I will give you or give myself Vistaril if I was really hung over. That is what Vistaril is all about." (T.S. 32)

Our review of the record convinces us that the Defendant's will was not impaired at the time he incriminated himself. The police officer who took the Defendant's statement was unaware that the Defendant had received medication at the hospital. During the fifty or sixty minute period in which the Defendant gave his statement, both police officers present testified that the Defendant appeared to suffer no distress, was calm, relaxed, rational and in full control of himself, no longer nervous or perspiring, or suffering physical discomfort, and did not appear to be under the influence of drugs or medication. Commonwealth v. O'Bryant, supra.

Nor was the Defendant in any manner coerced or threatened either prior to or during the course of his statement. No requests he made were denied. He was promised nothing. In fact, the idea of speaking to the police and making a statement appears to have originated solely with the Defendant and not the police.

In sum, we are convinced that the Defendant's will was neither impaired nor overborne during the crucial period prior to or at the time he incriminated himself, Commonwealth v. Taylor, supra; Commonwealth v. Cornish, supra, and we will not disturb the finding that the Defendant's waiver and subsequent incriminating statement were knowing, voluntary and intelligent acts, and the products of a rational and free will.


Futch Violation

The Defendant next contends that his statement should have been suppressed as the product of unnecessary delay between his arrest and arraignment, in violation of Commonwealth v. Futch, 447 Pa. 389, 290A. 2d 417 (1972)*fn2, and former Pa. R. Crim. P. 118*fn3

At the outset, we observe that the Defendant's Futch contention appears for the first time in his brief. Pa. R. Crim. P. 323(d) clearly provides:

"The motion [to suppress evidence] shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof." (Emphasis added)

The Defendant's motion to suppress makes no mention of either Pa. R. Crim. P. 118 or 130, or Commonwealth v. Futch, supra, makes no assertion of any delay between arrest and arraignment, and in fact avers only that the police

"... in violation of the Fifth Amendment of the Constitution of the United States, and Art. 1, Sec. 9 of the Constitution of the Commonwealth of Pennsylvania unlawfully procured oral and written statements from the defendant." Defendant's Application for Suppression of Evidence, Paragraph 2.

The only facts set forth in the Defendant's Application in support of this contention are these:



     f. That the oral statements taken from the defendant by the police were taken at a time when the defendant was under the influence of intoxicating drugs and could not fully understand his constitutional rights.

     g. That the statements were taken after the defendant had been in custody for a great number of hours and were because of undue influence exercise by the police who were aware that the defendant was under the influence of drugs."

As is thus obvious, both such factual assertions bear upon the single question of the voluntariness of the Defendant's statement. At no time prior to the filing of his brief did the Defendant raise his present contention that the statement was a product of an unnecessary delay in violation of a rule of criminal procedure or a decision of an appellate court. His post-trial motions make no reference to the subject. There was no oral argument on the Defendant's post-trial motions and the matters were submitted on briefs alone. Under such circumstances, we are constrained to insist upon compliance with Pa. R. Crim. P. 1123(a), permitting argument only upon those issues raised in post-trial motions, and we thus consider the question of a Futch violation to have been waived. See Commonwealth v. Kozek, 479 Pa. 171, 387 A.2d 1278 (1978); Commonwealth v. Marrero, 478 Pa. 97, 385 A.2d 1331 (1978); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). And see Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975)*fn4

The Supreme Court has also specifically held that a mere claim of involuntariness set forth in a motion to suppress as at bar is insufficient to preserve a Futch claim: Commonwealth v. Mitchell, supra, cited with approval and applied in Commonwealth v. Dussinger, supra. Under either rule, we do not reach the issue.


Defendant's Statement Made Upon Entering Police Station

As we have observed, following his arrest, the Defendant was held in custody at the Downingtown Police Station awaiting the issuance and execution of a search warrant and the arrival of West Chester police. Although given the full panoply of Miranda Warnings at least twice while at Downingtown, the Defendant was not questioned by police concerning the incident.

Inasmuch as the robbery occurred in West Chester, and the Complaint had been initiated by the West Chester Police Department, Sergeant Canzoneri of that force was dispatched to Downingtown in order to return the Defendant to West Chester. Canzoneri took the Defendant into custody at 10:20 P. M. and returned him to West Chester. Neither man spoke to the other at the Downingtown Police Station or in the police vehicle during the trip to West Chester. As Sergeant Canzoneri was escorting the Defendant into the West Chester Police Station, the Defendant told Canzoneri that he was "coming down" from drugs and then said "I'll tell you what you want to know. Gary Smith was the other guy that was with me.". Canzoneri said nothing to the Defendant prior to these remarks and nothing afterward.

The Court permitted Sergeant Canzoneri to testify about the Defendant's statements at trial over the Defendant's objection, and denied a defense motion for a mistrial following such testimony.

The Defendant now asserts error in these rulings and contends that he was unaware of the precise nature and content of the statements he made to Canzoneri and was unaware that the Commonwealth intended to use the statements at trial. As a result, the Defendant argues, he was denied the opportunity to move the suppress such statements. As a corollary argument, the Defendant asserts that as the Commonwealth did not permit Canzoneri to testify concerning the statements at the suppression hearing, it failed to carry the burden imposed upon it by Pa. R. Crim. P. 323(h)*fn5

During the suppression hearing, the following interchange occurred between the prosecutor and Canzoneri:

"Q. Did he [the Defendant] say anything to you?

A. Not in the vehicle.

Q. Did he make some remark to you after you arrived back in West Chester?

A. When we got to the back of the station and going up the steps to the back door of the police station, he remarked to me, he says --

Q. Without telling us what he said exactly, did he make a remark to you?

A. Yes, he made a remark.

Q. Was it as a result of your asking him any question?

A. No.

Q. Was it out of no where, so to speak?

A. So to speak, it was out of no where.

Q. As a result of that conversation, what did you do?

A. As a result of that, I brought him into the station then and into the officers' room in West Chester and, of course, Detective Durnell went in with the defendant, and I don't recall the other officer that went into the room with them.

Q. Now, on the trip from Downingtown to West Chester, did the defendant complain about anything to you in terms of pain, discomfort?

A. After we were going into the back room of the police station is when he made this statement out of no where. He informed me he was coming down on drugs." (T.S. 94-95)

We note initially, as reference to the quoted colloquy reveals, defense counsel should have been immediately alerted to at least inquire into the nature of the Defendant's "remarks" to Canzoneri. Nevertheless, counsel did not avail himself of the opportunity to cross-examine Canzoneri on the subject, (T.S. 96).

Nevertheless, we observe that the Defendant's application to Suppress includes oral and written statements made by the Defendant and for our purposes here, we will assume that the Defendant's oral statements to Canzoneri are within the purview of the Defendant's motion to suppress.

We are first of all unaware of any Rule of Court of appellate authority, and counsel has cited none, that requires the Commonwealth to reveal in its case in chief at a suppression hearing the precise language of an incriminating statement or to otherwise divulge to the Defendant the contents of such statements during the course of a suppression hearing*fn6 If such statements are within the scope of a motion to suppress, the burden imposed upon the Commonwealth by Pa. R. Crim. P. 323(h) remains, and the Commonwealth must establish by a preponderance of the evidence that the challenged evidence is admissible, Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977); Commonwealth v. Marini, 251 Pa. Super. 201, 205, 380 A.2d 448, 449, allocatur refused (1977). As we have determined that the Defendant's oral statement to Canzoneri is within the purview of the Defendant's motion to suppress, we will here determine whether the Commonwealth has carried its burden.

It is now fundamental that statements resulting from custodial interrogation of a defendant may not be introduced at trial unless and until it is shown that procedural safeguards to secure the defendant's right against self-incrimination have been effectuated. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). At the same time, however, it is only custodial interrogation, or police conduct calculated, expected or likely to evoke admissions which are subject to Fifth Amendment constraints, and volunteered statements by an accused are not barred by the Fifth Amendment. Miranda v. Arizona, supra at 478; Commonwealth v. Lowenberg, Pa. , 392 A.2d 1274 (1978); Commonwealth v. Wiggins, 472 Pa. 95, 371 A.2d 207 (1977); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1976); Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26 (1976); Commonwealth v. Brittain, 455 Pa. 562, 317 A.2d 219 (1974); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969).

At bar, it is apparent to us as it was to the suppression judge that the Defendant's oral statement to Sergeant Canzoneri outside the West Chester Police Station was clearly not the product of police interrogation or duplicity, or other conduct on the part of the police designed to elicit admissions, but was rather a wholly voluntary act on the part of the Defendant. Although the Defendant was nervous and perspiring, there is no evidence from which we might conclude that at the time he spoke to Canzoneri, the Defendant was under the influence of narcotics or suffering from the withdrawal therefrom to a degree rendering his admission less than an act of free will or rational, deliberate choice. See Commonwealth v. Cornish, supra, and our discussion at headnote 1., supra.

Accordingly, quite apart from the failure of the Commonwealth to reveal the precise contents of the Defendant's oral statement at the suppression hearing, the record made at that hearing indicates quite clearly that the Commonwealth established the admissibility of the oral statement by a preponderance of the evidence.


Prosecutorial Misconduct During Closing Argument

At trial, the Defendant did not testify and presented only one witness in defense, an eye-witness who failed to identify him at a lineup. During summation, the prosecutor said the following to the jury:

"Mr. Andes [defense counsel] argued some matters to you. He forgot to mention a few small things. For a moment, let us agree with him, and let us say that Mr. Kennedy [assistant manager of the A & P store, and an eye-witness] is mistaken. Let us agree and say that that statement that was given was involuntary. It would have been interesting to hear the explanation as to why this defendant was in the vehicle that was found approximately a half hour after the incident, and lo and behold in that vehicle was the sawed-off shotgun. (Emphasis added) (T. June 23, 1976, at 22-23)

At the conclusion of the prosecutor's summation, the following colleague ensued at side-bar:

"MR. ANDES: Your Honor, at this point I would like to move for a mistrial on behalf of the defendant based upon Mr. Freeman's statement in his closing argument, the effect of which is, and I quote the exact words, 'it would be very interesting to hear the explanation'.

I think that that merely puts it in the mind of the jury that the defendant has some need to explain his activities.

Of course he does not. We all know that the law is clear that he has no need to do anything at all to prove his innocence.

Therefore, based on that I would ask for a mistrial.

MR. FREEMAN: Your Honor, I would say my recollection is that I was discussing the explanation in the context that Mr. Andes was giving in his final argument.

There was no intent that the defendant had anything to explain. I was rebutting Mr. Andes' argument as made by him.

THE COURT: The motion is denied. I will give an appropriate instruction to the jury." (T. June 21, 1976, at 246-47)

The Court thereupon commenced its final charge to the jury, and within a matter of minutes following the foregoing colloquy, and the prosecutor's summation, the Court instructed the jury in the following language*fn7

"Ladies and gentlemen, a fundamental principle of our system of criminal law is that the defendant is presumed to be innocent. The mere fact that he was arrested, that a bill of information was later filed against him, that he is present in court today and accused of crime is not evidence of any kind against him. An information filed by the District Attorney is merely an accusation, nothing more.

Not only is the defendant presumed innocent when he comes to court, he is presumed innocent throughout the trial and unless and until you conclude, based upon a careful and impartial consideration of the evidence, that the Commonwealth has proven him guilty beyond a reasonable doubt.

The presumption of innocence, ladies and gentlemen, is in itself alone sufficient to acquit the defendant, unless each of you are satisfied beyond a reasonable doubt, based on all the credible evidence, that the defendant is guilty.

It is not the defendant's task or burden to prove that he is not guilty; rather, it is the Commonwealth that always has the burden of proving each and every element of each crime charged and, further, that the defendant is guilty of those crimes charged beyond a reasonable doubt.

The defendant is not required to present any evidence of any kind, either through his own mouth or through the mouths of others, and he is not required to prove anything or explain anything whatever in his own defense.

If the Commonwealth's evidence does not meet its burden of proving each and every element of each crime charged and, further, that the defendant is guilty of those crimes charged, your verdict must be not guilty.

If on the other hand the Commonwealth's evidence does prove beyond a reasonable doubt that the defendant is guilty, then your verdict as to that crime should be guilty." (T. June 21, 1976, at 253-55)

     and at pages 294-95:

"Finally, ladies and gentlemen, as you know, the defendant did not testify in this case. It is important that you understand that every person accused of crime has an absolute right to testify or not, and such decision is entirely up to the defendant.

The burden is always upon the Commonwealth to prove each and every element of each crime charged and, further, that the defendant is guilty of each crime charged, all beyond a reasonable doubt.

The defendant need never present a defense or explanation of any kind, and certainly, he need not prove himself innocent.

We must impress upon you that the defendant has an absolute right, founded on the Constitution of the United States and the Commonwealth of Pennsylvania, to forgo testifying. The mere fact that the defendant has chosen to exercise that important and basic constitutional right does not permit you the jury to draw any inference of guilt or any other adverse inference of any kind whatever against the defendant.

You must disregard entirely the fact that the defendant did not testify."

The Defendant now assigns as error the refusal of the trial judge to grant a mistrial, arguing as he does that the emphasized language of the prosecutor noted above constituted an impermissible comment upon the failure of the Defendant to testify.

A defendant in a criminal trial has an absolute right, founded upon the Constitutions of the United States and the Commonwealth of Pennsylvania*fn8 to decline to testify, and if he chooses not to testify, as at bar, comment upon his silence by the prosecutor is constitutionally impermissible: Anderson v. Nelson, 390 U.S. 523, 524 (1968); Griffen v. California, 380 U.S. 609, 614 (1965); Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976); Commonwealth v. Davis, 452 Pa 171, 305 A.2d 715 (1973); Commonwealth v. Hodge, 246 Pa. Super. 71, 369 A.2d 815, allocatur refused (1977). And see 19 P.S. § 631.

Thus, in Commonwealth v. Brenizer, supra, where the defendant did not testify and the prosecutor argued to the jury possible "explanations" of the defendant's plea of not guilty, the Court reversed the defendant's conviction, finding that as the result of the prosecutor's varying interpretations of the defendant's plea, the jury might reasonably have inferred that the defendant's failure to offer any explanation of his plea, or any other evidence, was because of his guilt, and that if he were not guilty, he would have testified in his own defense. Id at 352, 356 A.2d at 786. In Anderson v. Nelson, supra, the trial judge instructed the jury that it might consider as tending to indicate the truth of it, any evidence against the defendant which he could reasonably be expected but failed to deny. The Supreme Court of the United States reversed the defendant's conviction, finding that the instruction violated the defendant's constitutional rights. Id at 524-25.

In Commonwealth v. Davis, supra, the defendant again failed to testify and offered no evidence, and during summation, the prosecutor repeatedly used the words "uncontroverted" and "uncontroverted fact" when referring to the Commonwealth's evidence. The Court, finding that such language created an adverse inference contrary to the mandates of the Constitutions of the United States and the Commonwealth, reversed the defendant's conviction, saying as it did:

"On this record, where appellant did not testify and offered no other witnesses or evidence at trial, it would be an act of sophistry to conclude that the remarks of the assistant district attorney could have been taken as anything other than a reference to the fact that appellant, and appellant alone, failed to rebut the evidence against him. The prosecutor's attempt to have the jury equate appellant's guilt with his silence at trial was improper. Such comments, even by implication, are violative of Griffin, supra. See also Handman, supra.

Not only were appellant's rights under the United States Constitution violated, but also his rights under Article 1, § 9 of the Pennsylvania Constitution, and the Act of May 23, 1887 [footnote omitted] which implements it. It is well settled that any comment by the prosecution or the court violates the Act of 1887 if it '... draws attention to or focuses on the fact that no one except the defendant can rebut the Commonwealth's case. ...'" (Emphasis in original) 452 Pa. at 176.

In light of these principles, we turn to an examination of the prosecutor's remarks at bar, and the context in which they were uttered, Commonwealth v. Perkins, 473 Pa. 116, 134, 373 A.2d 1076, 1085 (1977); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975).

We first observe that the assertedly offending words were uttered by the prosecutor at the outset of his summation, immediately following the conclusion of defense counsel's summation. The Commonwealth argues that the allegedly offending word "explanation" refers to defense counsel's summation and the arguments advanced in that summation. The Commonwealth thus in effect asserts that defense counsel "explained" a number of points, but failed to "explain" why the Defendant was found in an automobile described by a witness as the get-away vehicle, in the presence of a sawed-off shotgun. While we do not necessarily agree with the Commonwealth's argument, we do find the language used b the prosecutor ambiguous, at best. More significantly, we do not find that the prosecutor's comment either expressly or by reasonable implication indicated to the jury that an adverse inference could be drawn from the failure of the Defendant to testify, and we do not find that the language drew attention to his failure to do so. Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975); Commonwealth v. Hodge, supra.

We also note again the Court's opening instruction to the jury, advising them as it did that the Defendant was under no duty to testify, and the Court's final instructions to the jury, delivered within minutes of the prosecutor's summation, advising them again that the Defendant need not testify, and specifically, that the Defendant was not "required to prove anything or explain anything whatever in his own defense". (T. 255)

Finally, as earlier noted, at the specific request of the Defendant's counsel (T. 244-45), the Court instructed the jury in its final charge in detail concerning their obligation to disregard entirely the failure of the Defendant to testify. Id at 294-95. It is significant to note that defense counsel's request for this special instruction was made and agreed to prior to the summations, and the Defendant cannot now be heard to say that he was forced to request the special instruction which itself obviously highlights the Defendant's failure to testify, by reason of the prosecutor's remark during summation.

We find, therefore, that the ambiguity inherent in the prosecutor's remark, the context in which it was uttered, the opening and closing instructions of the Court on the subject, and the special instruction oin the failure of the Defendant to testify, in combination, lead us inevitably to conclude that the Defendant's constitutional and statutory rights have not been infringed upon by the prosecutor's remark, and that the refusal to grant a mistrial was not error.

Accordingly, we reaffirm our Order dismissing the Defendant's post-trial motions.

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