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submitted: May 3, 1988.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division at No. 8701195A.


John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Edward Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.

Cirillo, President Judge, and Beck and Popovich, JJ. Cirillo, President Judge, files a dissenting opinion.

Author: Popovich

[ 379 Pa. Super. Page 576]

This is an appeal from the judgment of sentence (2-5 years imprisonment) for burglary by the appellant, David Robinson. We affirm.

In reviewing the evidence in a light most favorable to the verdict-winner, the Commonwealth here, and all reasonable inferences to be derived therefrom, the record discloses that at 4:55 a.m. on the 12th of January, 1987, Pittsburgh Police Officer Frank Vetere was cruising the North Side of the City when he received a call to proceed to 1725 Beaver Avenue. The Gulf Station alarm had been activated. Within two minutes, the officer was on the scene and observed a "door swinging open" inside the service station. He turned on his spotlight and saw "a man coming out of the door in th[e] back room . . . and running across the front of the station" and exiting through the broken window in the front of the establishment.

[ 379 Pa. Super. Page 577]

Although the entire time that the officer witnessed the intruder lasted for some thirty seconds, and this was with the aid of a forty watt bulb lighting the station office and the illumination provided by the officer's vehicular spotlight, he was able to see the defendant's face for only a "few seconds" as the culprit ran past him.

The officer pursued the fleeing defendant but lost sight of him for about five minutes as he (defendant) ran around a corner. Nonetheless, with the aid of other officers who had arrived on the scene, the area was searched and the defendant was located lying, face down, between a cyclone fence and a telephone pole which ran the length of the Metropolitan Parking Lot situated near the Gulf Station.

As told by the defendant at trial, when the police found him,

Thereafter, Officer Schon-Bachler conducted a body-search of the defendant and recovered four rolls of quarters, two rolls of dimes, some bills and a screwdriver. The rolls of coins had stamped on them: "Beaver Avenue Gulf, 1725 Beaver Avenue, Pittsburgh, Pennsylvania 15233". The defendant was then arrested and removed to the police station.

After a jury trial, the defendant was adjudged guilty and sentenced. This timely appeal followed.

The defendant raises two issues for our consideration, the first of which challenges the prosecutor's questioning him regarding his silence at the time of his arrest as violative of his Fifth Amendment right not to incriminate himself.

At the trial, it was a question of interest as to whether the circumstances surrounding the defendant's capture, and the prosecution's inquiry of the defendant as to his failure to inform the police of his version of events, were reflective of a pre- or post-arrest situation. The former is admissible for impeachment purposes, see Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1985),

[ 379 Pa. Super. Page 578]

    while the latter is a prohibited area of inquiry subject, in some cases, to rectification by means of a cautionary instruction. See Commonwealth v. Gbur, 327 Pa. Super. 18, 474 A.2d 1151 (1984).

Instantly, the Commonwealth's witnesses' accounting of what occurred when the defendant was apprehended is reflective of an immediate arrest without the opportunity for the defendant to speak, and, this, would label the prosecutor's questioning of the defendant, as to his failure to speak when captured, a prohibited subject of discussion. On the other hand, the defendant's recollection of the incident is consistent with a pre-arrest scenario in which he was availed the chance to state his version of events prior to the police effectuating his arrest.*fn1

Because we are to accord the verdict-winner the benefit of all favorable evidence and the reasonable inferences to be adduced therefrom, we are permitted to view the question of the prosecutor: "Did you tell the police officers anything when they found you?" as eliciting information from the defendant indicative of a pre-arrest context and the proper subject of inquiry for impeachment purposes. See Turner, supra.

Especially is this appropriate since the thrust of the accused's defense was that he was a victim of circumstances and merely happened upon the commission of the burglary in progress. And, fearful that he would be inculpated in

[ 379 Pa. Super. Page 579]

    the crime (the reasons for which, if defense counsel's closing argument is to be believed, rested upon his "race"), he fled on foot with rolls of coins he stated he had picked up from the grounds of the gas station as the alleged two other burglars made their escape. He did all of this rather than remain on the scene and inform the police of what he claimed he had witnessed -- two individuals running from the station with the arrival of the police.

Even if, arguendo, we were to hold that the question by the prosecutor was proscribed because we had a post -arrest situation, we are not so prone to conclude that the single reference to the defendant's silence was so egregious that no amount of cautionary instructions could cure the impropriety. During the course of the trial, the judge did give a lengthy cautionary instruction on the subject of the prosecution's questioning of the defendant as to whether he stated anything to the police upon his being found; to-wit:

Ladies and gentlemen of the jury, last night after you left we had legal argument on several issues, and we all consulted the law overnight, and that has resulted in various decisions of law today, some of which I will tell you about. * * * At the end of the day yesterday [the assistant district attorney] asked the defendant on cross-examination a question something to the effect why didn't you tell the police that. I want to explain something to you: Once a person is arrested, any citizen of this country, that person has an absolute right to remain silent. That is guaranteed by our Constitution. So when you are arrested, you don't have to say anything, and that right is so important that the jury or Judge may not consider their silence as any evidence of guilt. So the fact that the defendant was arrested and didn't tell the police officers anything or say anything is absolutely no evidence against him, and you may not ...

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