No. 805 October Term, 1979, Appeal from Judgment of Sentence, dated March 26, 1979, Court of Common Pleas, Philadelphia County, Criminal Trial Division, at Nos. 407 and 408, August Term, 1978.
Jack J. Bulkin, Philadelphia, for appellant.
Ann Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, P. J., and Hester and Johnson, JJ.
[ 294 Pa. Super. Page 232]
This is an appeal from the judgment of sentence of March 26, 1979.
Appellant was convicted of aggravated assault,*fn1 robbery*fn2 and possession of an instrument of crime*fn3 on December 13, 1978, following a trial by jury. The lower court denied post verdict motions which raised, as improper, the court's admission of testimony regarding defendant's post-arrest silence. Appellant now appeals from the judgment of sentence imposing consecutive sentences of ten to twenty years for robbery and two and one-half to five years for the weapons offense.*fn4 For the reasons set forth herein, we affirm.
On June 17, 1978, at approximately 4:00 A.M., Harold Jackson, the victim, was en route from Gino's Restaurant, where he worked, to his home, after accompanying his employer to the train station and stopping at an amusement center on Market Street. He encountered a man who demanded
[ 294 Pa. Super. Page 233]
money, tapes, and ultimately, Jackson's radio. The victim gave the man all of his money, eighty cents, but refused to relinquish the radio. The same man then shot Jackson and fled. As a result of the shooting, the victim is permanently paralyzed from the waist down.
Appellant, who had been stopped and his appearance noted by police at the scene on the morning of the crime, was arrested six days later, based on the victim's description of his assailant.
Appellant raises three issues on appeal. First, he argues that the testimony by the arresting officer concerning Appellant's post-arrest silence was improperly admitted to rebut trial testimony concerning Appellant's cooperation. Second, Appellant asserts that the trial court erred in permitting the Commonwealth to elicit testimony from the victim's mother in violation of the rules of criminal procedure.*fn5 Third, Appellant states that he was denied effective assistance of counsel because counsel failed: (a) to raise the issue of sufficiency of the identification evidence; (b) to move to suppress information extracted at the scene on the morning of the crime from Appellant, i. e., Appellant's name and address, and a description of the clothes he was wearing on the morning of the shooting; (c) to object to the prosecution witness' reference to a photograph of Appellant as being of "the upper torso"; and (d) to raise, as violative of the attorney-client privilege, the notice of alibi defense requirement in Pa.R.Crim.P. 305 C(1)(a).
Appellant's first issue, that the admission of his post-arrest silence creates in the minds of the jurors an adverse
[ 294 Pa. Super. Page 234]
inference and thus constitutes harmful error, is contradicted by a reading of the record below. The court issued the appropriate cautionary instructions to the jury at the time of charge which carefully limited the conclusions to be drawn from the evidence regarding Appellant's post-arrest silence.*fn6 As was the case here, such testimony could be elicited to refute contrary statements volunteered by the defendant to demonstrate his cooperation at the time of questioning. That testimony could be, and was, used solely to impeach Appellant's trial testimony concerning his post-arrest conduct. United States v. Allston, 613 F.2d 609, 611 (5th Cir. 1980). In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court, in distinguishing that factual situation (where the prosecution improperly referred to defendant's silence to impeach the exculpatory testimony offered at trial) from a hypothetical situation like the instant case, set out what constitutes an allowable use of Appellant's post-arrest silence:
It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest. [citation omitted]
Id. at 619-20 n. 11, 96 S.Ct. at 2245.
In United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975), which is cited by the Court in Doyle, the United States Court of Appeals for the Fifth Circuit held that the defendant's
[ 294 Pa. Super. Page 235]
" Miranda silence was admissible for the purpose of rebutting the impression which he [the defendant] attempted to create: that he cooperated fully with the law enforcement authorities." Id. at 1383. Similarly, in Allston, where defendant, in an effort to create the impression that he had cooperated fully, voluntarily raised the issue of his post-arrest behavior, the court ...