Com. ex rel. Shadd v. Myers

Decision Date07 October 1966
Citation223 A.2d 296,423 Pa. 82
PartiesCOMMONWEALTH of Pennsylvania ex rel. Ronald SHADD, Appellant, v. David N. MYERS, Supt., State Correctional Institution, Graterford, Pa.
CourtPennsylvania Supreme Court
David C. Harrison, Philadelphia, for appellant

John A. McMenamin, Asst. Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

EAGEN, Justice.

On May 19, 1960, the appellant, Ronald Shadd, was convicted by a jury of murder in the first degree and sentence was fixed at life imprisonment. Admittedly, throughout the proceedings, Shadd was represented by very competent court-appointed counsel. A motion for a new trial was duly filed and later withdrawn. Sentence was then imposed in accordance with the jury's verdict. No appeal from the judgment was filed.

In October 1965, Shadd instituted an action in habeas corpus which the court below dismissed. An appeal from that order is now before us.

In this collateral attack upon his conviction, sentence and confinement, Shadd's prime contention is, that constitutionally tainted evidence was improperly admitted against him over objection at trial which constituted a denial of due process.

The crime involved the fatal beating of one Albert J. Wahl during the burglary of a commercial store, which he managed in the city of Philadelphia. Shadd and one Felder were taken into police custody and questioned concerning participation in the crime. Shadd's constitutional rights, consisted of asserted was received at trial in violation of Shadd's constitutional rihts, consisted of testimony elicited from police witnesses, which may be summarized as follows:

During questioning, Felder made oral statements to the police, which were typewriter recorded, wherein he stated that he and Shadd committed the burglary and that he (Felder) held Wahl while Shadd beat him over the head with a rock. Shadd was then confronted with Felder in the presence of police investigating officers. One of the latter informed Shadd in detailed fashion of Felder's admissions and accusations. Shadd was asked if he had anything to say. He remained mute and made no denial.

This testimony was admitted in evidence as proof of a tacit acquiescence on the part of Shadd in the truth of Felder's statements. 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. See, Commonwealth v. Vento, 410 Pa. 350, 189 A.2d 161 (1963); Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527 (1959); Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955); Commonwealth v. Shupp, 365 Pa. 439, 75 A.2d 587 (1950); Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 (1943); Commonwealth v. Aston (No. 2), 227 Pa. 112, 75 A. 1019 (1910); and, Ettinger v. Commonwealth, 98 Pa. 338 (1881). 1

However, the United States Supreme Court in the recent decision of 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 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 accusations, or statements made in his presence. In short, the accused may not now be penalized for exercising his constitutional right to remain silent under such circumstances. The questions then follow: Must the particular ruling of Miranda be applied retroactively? Or in terms of this case: Does the admission at Shadd's trial of the evidence under discussion now render a new trial mandatory? We conclude not.

Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), clearly ruled that the new constitutional standards governing in-custody police interrogation of individuals accused, of crime, enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, supra, do not require retroactive application. While the Court did not specifically discuss the situation herein present, it did pertinently say in Johnson v. State of New Jersey, supra, 86 S.Ct. at 1777 & 1778:

'In the past year we have twice dealt with the problem of retroactivity in connection with other constitutional rules of criminal procedure. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). These cases establish the principle that in criminal litigation concerning constitutional claims, 'the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application.' 381 U.S., at 628, 85 S.Ct., at 1737; 382 U.S., at 410, 86 S.Ct. at 461. These cases also delineate criteria by which such an issue may be resolved. We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda. See 381 U.S., at 636, 85 S.Ct. at 1741; 382 U.S., at 413, 86 S.Ct., at 464.

'In Linkletter we declined to apply retroactively the rule laid down in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), by which evidence obtained through an unreasonable search and seizure was excluded from state criminal proceedings. In so holding, we relied in part on the fact that the rule affected evidence 'the reliability and relevancy of which is not question.' 381 U.S., at 639, 85 S.Ct., at 1743. Likewise in Tehan we declined to give retroactive effect to Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which forbade prosecutors and judges to comment adversely on the failure of a defendant to testify in a state criminal trial. In reaching this result, we noted that the basic purpose of the rule was to discourage courts from penalizing use of the privilege against self-incrimination. 382 U.S., at 414, 86 S.Ct., at 464.'

In Johnson, supra, the Court also noted that, while it gave retroactive application to other constitutional rules of criminal procedure laid down in recent years (see, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)), the rules affected involved 'the very integrity of the fact-finding process,' whereas in contrast, the rule affecting the privilege against self-incrimination rests upon substantially different considerations. Therefore, after consideration of the purpose of the rule announced in Miranda, supra, concerning evidence of 'tacit admissions,' the reliance placed upon this Court's rulings in regard thereto for nearly a century and the obvious effect of its retroactive application on the administration of justice, we rule that it need not and will not be applied retroactively in Pennsylvania.

Shadd next contends that the police witnesses' testimony, concerning Felder's admissions and accusations, really amounted to Felder testifying against Shadd at trial without being called as a trial witness and without giving Shadd the opportunity and right of cross-examination, citing Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The situation presented in Pointer was totally dissimilar. Therein, the court received in evidence at trial the testimony of a then unavailable witness, as given at the preliminary hearing when the accused was without counsel and without the adequate facility to cross-examine. It was, in truth, trial testimony of the witness against Pointer. Herein, the challenged testimony was not as the trial court carefully instructed--evidence of Felder against Shadd, but rather--evidence of Shadd against Shadd, or evidence of Shadd's behavior which could be construed as an admission of his guilt. Also the trial court, in an exercise of caution, told the jury that if Shadd believed at the time that he was under no obligation to deny the accusations, his failure to do so could not be held against him.

Shadd further contends that because the incriminating accusations involved came from the mouth of a police officer, rather than from Felder himself, that there was 'no accusation requiring a denial.' This issue is one that should have been raised by direct appeal and need not be considered in habeas corpus. See, Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966). Moreover, it is without merit. The rule has consistently been applied whether the accusations came directly from the mouth of the victim of the crime, another individual who participated therein, or from a police officer who merely echoed the statements of the accuser. See, Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288 (1941); Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401 (1940); Commonwealth v. Carelli, 281 Pa. 602, 127 A. 305 (1925); and, Commonwealth v. Ballon, 229 Pa. 323, 78 A. 831 (1911).

Shadd also contends that the questioned evidence was constitutionally inadmissible, because the police failed at the time of the confrontation involved to fully inform him of his constitutional rights to remain silent and to have the assistance of counsel. Commonwealth...

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