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filed: March 5, 1982.


NO. 175 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 7800747.


Paul R. Gettleman, Zelienople, for appellant.

Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Wickersham, Wieand, and Beck, JJ. Wickersham, J., files a dissenting opinion.

Author: Beck

[ 296 Pa. Super. Page 98]

Appellant was arrested and charged on January 30, 1978 with robbery, theft by unlawful taking, violation of The Uniform Firearms Act and criminal conspiracy. After a jury trial, appellant was found guilty on all counts and sentenced to from ten to twenty years incarceration. Post-verdict motions were subsequently denied. This is a direct appeal from the judgment of sentence.

We reverse and remand for a new trial based upon a question by the trial judge about appellant's post-arrest silence. That question was asked immediately after appellant had presented his alibi and had been cross-examined by the prosecutor who judiciously avoided referring to appellant's silence. The trial judge cast doubt upon appellant's alibi by questioning him about the aforementioned silence, thereby attenuating his Fifth Amendment right to remain silent:

[ 296 Pa. Super. Page 99]

Trial Judge:

The only other question I have is, the police testimony seemed to leave me to conclude that they asked you to make a statement, you made no statement to them at all. You didn't tell them anything at all about the man you were with, with Mr. Fuller up in New Kensington?

Appellant: No, I didn't. (N.T. 157.)

Appellee relies upon Commonwealth v. Zellner, 268 Pa. Super. 59, 407 A.2d 436 (1979) which cites the language of Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976) for the proposition that if the trial judge in his charge adequately cures his earlier indiscretion, the trial judge has not committed reversible error. Those cases are distinguishable from the instant case, however, in that they involve prosecutorial error, rather than judicial. In both cases, a police officer, in answer to the prosecutor's question, referred to defendant's silence after being read his Miranda rights.

While we find a prosecutor's question less prejudicial than a judge's, our appellate courts as well as the United States Supreme Court have reversed even where the prosecutor made that inquiry. See Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976). In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held such prosecutorial inquiry to constitute a denial of due process:

(W)hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, supra, [422 U.S. 171] at 182-183, 95 S.Ct. 2133 [at 2139] 45 L.Ed.2d 99, put it very well:

[ 296 Pa. Super. Page 100]

"(W)hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case."

426 U.S. at 618-619, 96 S.Ct. at 2245 (footnotes deleted).

The Supreme Court did note an exception to the above rule in Doyle v. Ohio, 426 U.S. at 619 n.11, 96 S.Ct. at 2245 n.11, but that exception is inapposite to the instant case. It embodies the situation where the defendant testifies to an exculpatory version of the events and contends that he told the police officers that same version when arrested. In that very narrow case, the fact of earlier silence may be used to impeach this account of what transpired upon arrest.

An accused's Fifth Amendment right to remain silent after arrest is unequivocal. Any mention of the fact that a defendant availed himself of that protection must be scrupulously avoided. The judge's question and its timing could reasonably have led the jurors to conclude that defendant fabricated the alibi after arrest, and that his silence constituted an admission of guilt. We therefore conclude that the question was prejudicial and did not constitute harmless error.

While it is apparent that the trial judge did attempt to cure his indiscretion, the prejudicial effect of the question and its timing outweighed the curative impact of the instruction. See Commonwealth v. Seel, 267 Pa. Super. 490, 406 A.2d 1148 (1980).

[ 296 Pa. Super. Page 101]

We reverse the judgment of sentence and order a new trial.

WICKERSHAM, Judge, dissenting:

On October 5, 1978, a jury returned a verdict of guilty against the appellant, Raymond Williams, on charges of robbery, theft by unlawful taking or disposition, firearms not to be carried without a license and criminal conspiracy. Appellant was sentenced to pay a fine and costs and to serve a prison term of ten to twenty years on the charge of robbery. Sentence was suspended as to the other charges on payment of costs of prosecution. The trial had been held before the Honorable James R. McGregor, with Bruce Carsia representing the appellant, Williams.

One of the witnesses for the Commonwealth was Mary Shrader, who testified that she was a clerk at the Stop N Go in Springdale, Allegheny County and was working on January 30, 1978. Her testimony included the following:

Q Did anything unusual happen that day that you would like to tell us about?

A Yes, a robbery occurred that evening.

Q And would you tell us in your own words what happened?

A At five minutes to 6:00, two blacks entered the store and proceeded to rob the place.

Q . . . How did it take place initially, would you tell us what happened?

A Well, I was placing pop up in one corner of the store and the door opened, and I went to greet the customers, which were two blacks at which point the taller of the two placed a gun in my right-hand side and accompanied me around the counter to the register, demanded money from the register.

Q When he placed the gun at your side, was there another man with him?

[ 296 Pa. Super. Page 102]

A Yes, ma'am.

Q What exactly did he say to you when he put the gun at your side?

A He said, "Give me the money."

N.T. at 10-11.

Patrolman John Pavshak of Harmar Township was also working on the same evening and testified:

A I received an alert from Tarentum Base, the dispatcher for our area, our police department, the alert came over of a silver vehicle containing two black males, both armed, committed a robbery in Springdale Borough and they were headed south on Route 28.

Q Was there a license plate mentioned?

A Yes, there was. The silver vehicle was to bear Pennsylvania Registration 9C7-651.

Q Did you see this vehicle?

A Yes, I did.

Q How soon after this broadcast did you see the vehicle?

A At 6:10 p. m.

Q Where did you first sight it?

A On Route 28 heading south near the intersection of Route 28 and Jefferson Avenue.

Q Could you give us a distance between the intersection of Route 28 and Jefferson ...

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