Com. ex rel. Staino v. Cavell

CourtSuperior Court of Pennsylvania
Writing for the CourtFriedberg, Asst. Dist. Atty., H. W. Lightstone, Dist. Atty., Pottsville; PER CURIAM; ERVIN; WRIGHT; HOFFMAN, J., files a dissenting opinion in which MONTGOMERY; JACOBS, J., files a dissenting opinion, concurring in part with HOFFMAN; WRIGHT; HOFFMAN;
Citation207 Pa.Super. 274,217 A.2d 824
Decision Date24 March 1966
PartiesCOMMONWEALTH ex rel. Ralph STAINO, Jr., Appellant, v. A. C. CAVELL, Superintendent, State Correctional Institution, Rockview, Pennsylvania.

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217 A.2d 824
207 Pa.Super. 274
COMMONWEALTH ex rel. Ralph STAINO, Jr., Appellant,
v.
A. C. CAVELL, Superintendent, State Correctional
Institution, Rockview, Pennsylvania.
Superior Court of Pennsylvania.
March 24, 1966.

D. [207 Pa.Super. 275] N. Savitt, Philadelphia, for appellant.

C. J. Friedberg, Asst. Dist. Atty., H. W. Lightstone, Dist. Atty., Pottsville, for appellee.

Before ERVIN, P. J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ.

PER CURIAM:

The six judges who heard the argument of this appeal being equally divided in opinion, the judgment of the court below is affirmed.

ERVIN, President Judge (supporting the affirmance).

This is an appeal from an order of the court below dismissing appellant's petition for a writ of habeas corpus. It is the second time the case has been before us. In Commonwealth v. Staino, 204 Pa.Super. 319, 204 A.2d 664 (allocatur refused by the Supreme Court, 204 .pa.Super.[207 Pa.Super. 276] xxxvii), we affirmed the conviction of this defendant on a charge of burglary.

At the trial the tacit admission of the defendant, Staino, to a signed confession of a confederate, Robert Poulson, implicating the defendant, was admitted into evidence after five police officers testified that the defendant remained silent after the confession was read to him. This evidence was received under well established Pennsylvania doctrine of tacit admissions: Commonwealth ex rel. Stevens v. Myers, 398 Pa. 23, 156 A.2d 527; Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889; Commonwealth v. Ford, 193 Pa.Super. 588, 165 A.2d 113; Commonwealth v. Gomino, 200 Pa.Super. 160, 188 A.2d 784.

The appellant now asks us to reverse this principle of law. It would be sufficient for us to say that we could not do so. Any such request must be made to the Supreme Court of this state. We are obliged to follow this principle of law, as was the court below.

There was ample evidence in this case, aside from the tacit admission of the defendant, that he participated in the burglary of the home of John B. Rich in Pottsville on August 7, 1959. Richard Blaney took the stand and testified that he had a conversation with the defendant at the Colony Motel in Atlantic City in the middle of August 1959 in which Staino admitted that he had taken part in this burglary. 1 Blaney was subjected to a severe cross-examination but held his ground.

Additional supporting evidence was given by Alfred Ronconi and Jerry Joseph Guarcini. Ronconi, manager of an automobile repair shop in Philadelphia, had known the defendant Staino, having done repair work

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on his automobile. He testified that during January[207 Pa.Super. 277] or February 1960 Staino brought a 'shirt box' containing money to his shop and told him 'he would like to have the contents exchanged into hundred dollar bills.' They went to a nearby bank together. While Staino waited outside, Ronconi entered the bank and presented the box to a teller, Guarcini, with the request that he 'exchange the money' in the box. When the teller discovered that the box contained more than $10,000 he told Ronconi that he would exchange only $10,000 of the money in the box for one-hundred dollar bills because 'bank transactions in excess of that require a signature.' Ronconi directed the teller to exchange only $10,000 of the money and the teller did so, handing Ronconi $10,000 in hundred dollar bills and the box containing the unexchanged money. Ronconi then left the bank and delivered the $10,000 and the box to Staino, who was waiting in his automobile. Guarcini, the teller of the bank, took the stand and confirmed this transaction.

There was also testimony that Staino purchased an automobile on October 31, 1959 for $3,300 and paid the purchase price with thirty-three one-hundred dollar bills.

When two investigating police officers examined Mr. Rich's home following the discovery of the burglary, they found that nothing had been disturbed in the upper floors of the house except for two beds from which two pillow cases had been removed. This testimony strikingly supported the recital in the Poulson confession that 'we got the money in a carryall bag and two pillowcases * * *.'

To grant a new trial in this case would be a waste of precious judicial time. Our courts have been deluged by the flood of cases arising out of recent decisions of the Supreme Court of the United States greatly extending the function of the writ of habeas corpus. Crime has greatly increased as a result of judicial leniency.

Order affirmed.

WRIGHT, J., files a concurring opinion.

[207 Pa.Super. 294] HOFFMAN, J., files a dissenting opinion in which MONTGOMERY, J., joins.

JACOBS, J., files a dissenting opinion, concurring in part with HOFFMAN, J.

[207 Pa.Super. 278] WRIGHT, Judge (concurring).

As District Attorney, I secured a number of convictions by use of the tacit admission doctrine. 1 This was more than a decade before the decision in Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889. The Superior Court is required to follow the Vallone case. If the tacit admission doctrine is to be repudiated, it must be accomplished by action of the Supreme Court.

HOFFMAN, Judge (dissenting).

I dissent. It is true that the doctrine of tacit admissions has not been abrogated by the Supreme Court of Pennsylvania. Nonetheless, recent decisions of the United States Supreme Court raise serious constitutional questions which have never been considered by our highest state court. We would be remiss in our duty as an appellate court if we failed to consider the constitutional validity of a rule of evidence which was approved prior to these recent decisions.

At the hearing on the habeas corpus petition, the following facts were established: Appellant, assistant manager of a night club in Philadelphia, was arrested by approximately fifteen police officers at 1:00 a. m. on Sunday, April 3, 1960. He was surrounded outside of the club by the officers and was shoved into the back seat of

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a car between two of them. Then he was handcuffed to one of the officers and was driven sixty miles to the Police Barracks in Reading. During the trip the officers neither spoke to appellant nor informed him of the reason for the arrest.

At the Reading Barracks, appellant was placed in a small room with four policemen and a captain of police. The captain advised appellant that he need say [207 Pa.Super. 279] nothing, and that anything he might say would be used against him at trial. Appellant was then confronted with an oral statement allegedly given by one Robert Poulson which implicated him in a burglary. [For the contents of the statement, see Commonwealth v. Staino, supra, 204 Pa.Super. pp. 323-325, 204 A.2d 664.] Throughout the recitation appellant remained mute or periodically said, 'I have nothing to say.'

Subsequently, at about 6:00 a. m. Sunday morning, appellant was handcuffed and driven to the Pottsville Court House. Several hours later he was brought before an alderman. At that hearing appellant was not advised of his right to counsel and stated only that he had nothing to say.

After the hearing appellant was taken to the Schuylkill County jail. At about 10:00 p. m. that night the same captain of police awakened appellant and again advised him of his right to remain silent. The captain then read to appellant a signed statement of Robert Poulson which implicated appellant in the burglary. Appellant repeatedly stated, 'I have nothing to say' or remained mute.

At appellant's trial the Poulson statement was admitted as evidence of appellant's tacit admission to the incriminating material contained therein on the authority of Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889 (1943). It is the admissibility of this evidence which is the subject of my dissent.

The Pennsylvania rule as established in Vallone is: '[W]hen a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made.' p. 421, 32 A.2d p. 890.

[207 Pa.Super. 280] The Vallone decision, however, was not accepted unanimously by our Supreme Court. Even while the majority was fashioning the Pennsylvania rule, Mr. Chief Justice MAXEY, in one of the most penetrating dissenting opinions contained in our State Reports, laid bare the inherent unsoundness of the tacit admission rule.

After carefully reviewing the decisions in other jurisdictions, Mr. Chief Justice MAXEY pointed out that, 'There is no principle more carefully applied in the administration of the criminal law than the principle that if any fact is as consistent with the hypothesis of a defendant's innocence as it is with the hypothesis of his guilt, that fact shall not militate against the defendant.' p. 437, 32 A.2d p. 897. Yet it is clear that '* * * there may be many reasons, other than guilt, for a man to remain silent when accused of crime, and that, therefore, to draw an inference of guilt from his silence is whlloy unwarranted. * * *' p. 441, 32 A.2d p. 889. 1 The probative weakness of silence has been

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similarly recognized by commentators and courts. 2

The majority in Vallone attempted to justify the rule in part by comparing it with the maxim that evidence of the flight of the accused is some indication of [207 Pa.Super. 281] guilt. p. 421, 32 A.2d 889. While recognizing that both rules are subject to the differing personalities of individuals, it contended that these rules reflect the manner in which the average man conducts himself in such a situation. With respect to flight, it quoted the proverb, '* * * the wicked flee when no man pursueth, but the righteous are bold as a lion * * *' 3 p. 423, 32 A.2d p. 891. I would agree with Mr. Chief Justice MAXEY...

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13 practice notes
  • Com. ex rel. Staino v. Cavell
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 24, 1967
    ...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 At Staino's trial, the statement of Poulson previously read to Staino in Reading and in Pottsvil......
  • Com. ex rel. Shadd v. Myers
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 7, 1966
    ...v. Vallone, 347 Pa. 419, 424, 32 A.2d 889, 892 (1943) and Judge Hoffman's dissent in Commonwealth ex rel. Staino v. Cavell, 207 Pa.Super. 274, 278, 217 A.2d 824, 825 (1966) unequivocally demonstrate the wholesale infirmities of the tacit admission rule. I am pleased that this rule Page 302 ......
  • Com. v. Dravecz
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 21, 1967
    ...See Commonwealth v. Vallone, 347 Pa. 419, 424, 32 A.2d 889, 892 (1943) (dissenting opinion); Commonwealth ex rel. Staino v. Cavell, 207 Pa.Super. 274, 278, 217 A.2d 824, 825 (1966) (dissenting [424 Pa. 596] opinion); see also, Note, Tacit Criminal Admissions, 112 U.Pa.L.Rev. 210 (1963). Acc......
  • Com. ex rel. Berkery v. Myers
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 15, 1968
    ...tacit admission could not be successfully attacked and thus denied relief. See Commonwealth ex rel. Staino [429 Pa. 381] v. Cavell, 207 Pa.Super. 274, 217 A.2d 824 (1966) (equally divided court); Commonwealth ex rel. Staino v. Cavell, 425 Pa. 365, 228 A.2d 647 (1967) (5--2 decision). Berker......
  • Request a trial to view additional results
13 cases
  • Com. ex rel. Staino v. Cavell
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 24, 1967
    ...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 At Staino's trial, the statement of Poulson previously read to Staino in Reading and in Pottsvil......
  • Com. ex rel. Shadd v. Myers
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 7, 1966
    ...v. Vallone, 347 Pa. 419, 424, 32 A.2d 889, 892 (1943) and Judge Hoffman's dissent in Commonwealth ex rel. Staino v. Cavell, 207 Pa.Super. 274, 278, 217 A.2d 824, 825 (1966) unequivocally demonstrate the wholesale infirmities of the tacit admission rule. I am pleased that this rule Page 302 ......
  • Com. v. Dravecz
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 21, 1967
    ...See Commonwealth v. Vallone, 347 Pa. 419, 424, 32 A.2d 889, 892 (1943) (dissenting opinion); Commonwealth ex rel. Staino v. Cavell, 207 Pa.Super. 274, 278, 217 A.2d 824, 825 (1966) (dissenting [424 Pa. 596] opinion); see also, Note, Tacit Criminal Admissions, 112 U.Pa.L.Rev. 210 (1963). Acc......
  • Com. ex rel. Berkery v. Myers
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 15, 1968
    ...tacit admission could not be successfully attacked and thus denied relief. See Commonwealth ex rel. Staino [429 Pa. 381] v. Cavell, 207 Pa.Super. 274, 217 A.2d 824 (1966) (equally divided court); Commonwealth ex rel. Staino v. Cavell, 425 Pa. 365, 228 A.2d 647 (1967) (5--2 decision). Berker......
  • Request a trial to view additional results

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