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decided: October 26, 1988.


Appeal from the Judgment of Sentence entered October 16, 1986 in the Court of Common Pleas of Blair County, Criminal Division, C.A. No. 230 of 1982.


Thomas M. Dickey, Altoona, for appellant.

Keith A. Presto, Assistant District Attorney, Hollidaysburg, for Com., appellee.

Cavanaugh, Rowley and Kelly, JJ. Cavanaugh, J. files a dissenting statement.

Author: Kelly

[ 378 Pa. Super. Page 626]

In this case, we are called upon to determine whether an appellant's pre-arrest refusal to explain his appearance at a state police barracks with a dead body and the murder weapon in his automobile may be admitted into evidence, and whether appellant's post-arrest refusal to submit to a neutron activation test to determine whether he had recently fired a gun may be admitted into evidence. Despite appellant's objections on constitutional grounds, we find as to both of these issues that the evidence was admissible.

On March 23, 1982, at 1:40 a.m., appellant appeared at the Pennsylvania State Police Barracks at Hollidaysburg, Pennsylvania, and informed the desk officer on duty that he wanted to report a dead body. He further indicated to the trooper that the body was in the automobile parked in front of the barracks. Two other troopers went out to the automobile and discovered the body of the victim, a young woman, located in the passenger's side of the front seat. The victim had been killed by a single gun shot wound to the left side of the head. In addition, the murder weapon, a hand gun, was found in the automobile beside the victim. The weapon was later determined to have been stolen from its owner several years prior to the subject incident.

On the same day, a criminal complaint was filed, charging appellant with homicide, aggravated assault, recklessly endangering another person and receiving stolen property. Appellant was subsequently tried and convicted on all offenses; the homicide charge was determined by the jury to be first degree murder. A sentencing hearing was conducted on the first degree murder conviction, after which the jury returned a sentence of life imprisonment. Both post-trial motions and supplemental post-trial motions filed by new counsel were denied after a hearing. Appellant was sentenced to a term of life imprisonment on the first degree

[ 378 Pa. Super. Page 627]

    murder conviction and to a consecutive period of one to five years imprisonment on the receiving stolen property conviction. This timely appeal follows.

On appeal, appellant raises twelve separate issues*fn1 in support of its contention that the trial court erred in failing to grant appellant's post-trial motion for a new trial. We have reviewed the voluminous record, the briefs of the parties, and the well-reasoned opinion of the Honorable Richard A. Behrens. In this opinion, we shall address only two of the issues raised by the appellant. First, we will consider appellant's contention that the trial court erred in admitting evidence of his pre-arrest silence. Second, we will consider appellant's contention that the trial court erred in admitting evidence of his post-arrest refusal to submit to a neutron activation test. These contentions present issues of general significance to the public which warrant further examination. With respect to the ten remaining issues, we affirm on the basis of the trial court opinion.


Appellant contends that the trial court erred in charging the jury that appellant's failure to give an explanation to the police at the state police barracks as to what had occurred could be considered by the jury to assess appellant's credibility. Testimony reveals that after appellant reported a dead body in his automobile parked outside the barracks, two police officers went out to investigate. At least one officer, Trooper William Emeigh, remained inside the barracks with appellant. Trooper Emeigh questioned appellant as to his name and address, which was obtained. However, when Trooper Emeigh asked appellant what had happened, appellant refused to answer.

The trial court charged the jury as follows:

[ 378 Pa. Super. Page 628]

    police at the State Police barracks as to what had occurred and also evidence regarding asking for an attorney or asking to speak with his attorney. You are hereby directed that a defendant's silence and/or his request for an attorney or to speak to an attorney is not any evidence of guilt whatsoever and should not be considered as such. A defendant's silence prior to being advised of his constitutional rights and prior to being taken into custody, however, may be considered in connection with a jury's assessment of defendant's credibility as a witness in this case in conjunction with all the other factors bearing on credibility but only for the purpose of credibility and only if you are satisfied that under all the circumstances then and there existing an explanation would naturally have been given by the defendant.

(N.T. 11/5/82 at 571-572). Appellant contends that this charge is inconsistent with the law of this Commonwealth.

Appellant alleges that his silence during the circumstances related above was not pre-arrest silence but rather post-arrest silence. In either event, appellant contends that Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), is dispositive of this issue. In Turner, our Supreme Court found as follows.

Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when in fact he remained silent. (Citations omitted). Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

499 Pa. at 583, 454 A.2d at 539, 540. (Emphasis added). The court in Turner ruled that if a defendant remains silent after his arrest but prior to receiving Miranda*fn2 warnings, his silence cannot be used to impeach his trial testimony. In the instant case, however, the trial court determined that appellant's silence occurred at a pre-arrest stage.

[ 378 Pa. Super. Page 629]

An arrest may be accomplished by any act that indicates an intent to take an individual into custody and subject him to the control and will of the person making the arrest. Commonwealth v. Lovette, 498 Pa. 830, 450 A.2d 975 (1982) cert. denied 459 U.S. 1178, 103 S.Ct. 803, 74 L.Ed.2d 1025 (1983). An arrest may be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. ...

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