228 A.2d 647 (Pa. 1967), Com. ex rel. Staino v. Cavell
| Citation | 228 A.2d 647, 425 Pa. 365 |
| Opinion Judge | Author: Jones |
| Party Name | COMMONWEALTH of Pennsylvania ex rel. Ralph STAINO, Jr., Appellant, v. A. C. CAVELL, Superintendent, State Correctional Institution, Rockview, Pennsylvania. |
| Case Date | April 24, 1967 |
| Court | Pennsylvania Supreme Court |
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[425 Pa. 367] John Patrick Walsh, David N. Savitt, Philadelphia, for appellant.
Harry W. Lightstone, Dist. Atty., Pittsville, for appellee.
[425 Pa. 366] Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
[425 Pa. 367] OPINION
JONES, Justice.
On the evening of August 7, 1959, the home of one John B. Rich in Pottsville, Schuylkill County, was burglarized and both cash and jewelry were stolen.
On Sunday, April 3, 1960, at approximately 1:00 a.m., Ralph Staino, Jr., was taken into custody in Philadelphia by State and Philadelphia police officers. Staino was placed in an automobile, handcuffed to a police officer and taken to the State Police Barracks at Reading, Berks County. At approximately 4:00 a.m. on the same date, while Staino was in the Reading State Police Barracks with five police officers present, Captain Ferguson of the Philadelphia Police Department advised him: 'that (he) did not have to make a statement but if (he) did, anything that (he) said would be used against (him) at (his) trial.' 1 Captain Ferguson then read to Staino a statement of one Robert Poulson which implicated Staino in the Rich burglary. 2 Throughout the reading of that statement, Staino time and again stated 'I have nothing to say'.
Staino was then taken to the Pottsville Court House where he was fingerprinted and photographed between [425 Pa. 368] 5:00--6:00 a.m. on the same date. Several hours later, Staino, without counsel and without being advised of his right to counsel, was given a preliminary hearing at which he stated that 'he had nothing to say'. Staino was then lodged in Schuylkill County jail in Pottsville. At approximately 10:00 a.m. that same date, Staino was taken to the warden's office in the jail where Captain Ferguson again read to him a statement of Poulson
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which implicated Staino in the Rich burglary. While that statement was being read and at its conclusion, Staino either stated 'I have nothing to say' or he remained mute.
Staino was tried before a court and jury in the Court of Quarter Sessions of Schuylkill County, convicted of larceny and burglary and sentenced to a term of 4 to 9 years. That judgment of sentence was affirmed by the Superior Court, (Commonwealth v. Staino et al., 204 Pa.Super. 319, 204 A.2d 664 (1964)) and this Court refused allocatur.
On June 8, 1965, Staino filed a petition for a writ of habeas corpus in the Court of Common Pleas of Schuylkill County and that Court, after hearing, dismissed Staino's petition. The order of the Court of Common Pleas of Schuylkill County was affirmed by the Superior Court, by an equally divided court, (Commonwealth ex rel. Staino v. Cavell, 207 Pa.Super. 274, 217 A.2d 824 (1966)) and this Court granted allocatur.
At Staino's trial, the statement of Poulson previously read to Staino in Reading and in Pottsville and proof of Staino's conduct consisting of his statements 'I have nothing to say' or his silence when confronted with [425 Pa. 369] Poulson's statement were admitted into evidence. 3 Poulson's statement was admitted not upon the ground that it was credible or freely and voluntarily made by Poulson, but only because of that which Staino said or did upon his confrontation by the police with such statement. The theory of the Commonwealth was that Staino, by his conduct, had tacitly admitted the truth of Poulson's statement and the trial court in admitting evidence of such conduct did so in reliance upon Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 (1943).
Staino was tried in May 1961. At that time, the doctrine of tacit admissions was judicially accepted in our Commonwealth. As this Court recently stated in Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85, 223 A.2d 296, 298 (1966): 'Pennsylvania has long adhered to the rule of evidence that when a statement made within the hearing and in the presence of a person (except in judicial proceedings) is incriminating in character and naturally calls for a denial, but is not challenged by the accused despite full opportunity and liberty to speak, the statement and the fact of his failure to deny are proper evidence of an implied admission of the truth of the accusatory statement. (Citing authorities).' See also: Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). Such was the state of the law in Pennsylvania when Staino was tried. Five years later, the U.S. Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), * * * 'emphasizing the protection afforded a person accused of crime against self incrimination by the Fifth Amendment to the United States Constitution, definitely ruled that such evidence (tacit admissions) is not constitutionally permissible against an accused in state court criminal trials. Therefore, previous decisions of this Court to the contrary notwithstanding, it is now the law that the prosecution may not use, at trial, evidence that an accused stood mute or failed to deny incriminating[425 Pa. 370] accusations, or statements made in his presence. In short, the accused may not be penalized for exercising his constitutional right to remain silent under such circumstances'. Shadd, supra, 423 Pa. p. 86, 223 A.2d 299, interpreting Miranda.
Very recently, we have been confronted with the determination whether the ruling proscribing the use of 'tacit admissions' was to be applied retroactively. See: Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (March 21, 1967). In Dravecz, Mr. Justice Eagen in a concurring
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opinion joined in by a majority of this Court, stated: 'Our ruling in Shadd was directly responsive to a statement by the United States Supreme Court in (Miranda) * * *. However, since Shadd involved a collateral attack on a judgment finalized several years previously, we held that the new ruling declaring the evidentiary use of 'tacit admissions' impermissible did not apply or affect the validity of the judgment therein.
'The instant trial occurred in September, 1964, and the judgment comes before us for review on direct appeal. Hence, the retroactive application of our new ruling as to the use of evidence of 'tacit admissions' at trial presents a problem not present in Shadd.
'As noted before, our ruling in Shadd proscribing the use of such evidence was prompted by Miranda v. State of Arizona, supra. Upon further consideration of the problem, it is now my conclusion that the bar to the use of such evidence flowed from the mandate of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Since Malloy was decided on June 15, 1964, the question therefore arises: Must all trials subsequent thereto wherein such evidence was admitted be set aside? I conclude not. It is my view that the date the judgment was finalized is controlling, rather than the date of trial, and if the judgment was finalized before the pronouncement in Miranda v. State of Arizona on June 13, 1966, then the use of [425 Pa. 371] such evidence at trial does not necessarily invalidate the judgment.
'The above conclusions is based on an analogy of the kindred decisions of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) rehearing denied, 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730 (1965), and Tehan v. United States ex rel. Scott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), rehearing denied, 383 U.S. 931, 86 S.Ct. 925, 15 L.Ed.2d 850 (1966). In Griffin, the United States Supreme Court held for the first time that adverse judicial or prosecutorial comment to the jury on an accused's silence during a state trial violates the proscription against self-incrimination included in the Fifth Amendment to the federal Constitution. While this ruling was necessarily premised upon the prior ruling in Malloy v. Hogan, supra, nevertheless, in Tehan v. United States ex rel. Shott, supra, the court ruled that Griffin did not apply to all cases tried subsequent to Malloy but only to those not 'finalized', in the sense of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), as of the date the decision in Griffin was announced.
'The relationship between Malloy and Miranda in the realm of 'tacit admissions' is closely analogous to the relationship between Malloy and Griffin in the realm of adverse comment on an accused's silence at trial. Just as the decisional seed which later bloomed into Griffin is impliedly imbedded in Malloy, so too is Miranda's clear proscription of 'tacit admission' evidence genealogically connected to Malloy. However, while the proscription against adverse comment on the accused's silence at trial was implicitly promulgated by Malloy, it was not explicated therein. This was left to Griffin. Likewise, while the proscription against evidentiary use of 'tacit admissions' was implicit in Malloy, it was Miranda that first spelled it out. Hence, it logically follows from Tehan that the ruling beganning the evidentiary use of 'tacit admissions', first explicated in Miranda, need only be applied to those cases wherein[425 Pa. 372] the judgment was not finalized as of the date Miranda was announced.'
The judgment in the case at bar had become Final long prior to the Miranda ruling. Under the rationale of Dravecz, Miranda would not apply and affect the use of the 'tacit admission' rule by the Commonwealth during the trial of this case. Accordingly, we find no merit in this contention of Staino.
Staino next contends that, applying the law as it existed prior to June 22, 1964, (the date upon which Escobedo v. State of Illinois,
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378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) was decided) and June 13, 1966, (the date on...
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