Com. ex rel. Stevens v. Myers

• Decision Date: 30 December 1959
• Citation: 156 A.2d 527,398 Pa. 23
• Parties: COMMONWEALTH ex rel. Rayford STEVENS v. David N. MYERS, Superintendent, State Penitentiary, Graterford, Penna.
• Court: Pennsylvania Supreme Court

156 A.2d 527

398 Pa. 23

COMMONWEALTH ex rel. Rayford STEVENS v. David N. MYERS, Superintendent, State Penitentiary, Graterford, Penna.

Supreme Court of Pennsylvania.

December 30, 1959.

Rayford Stevens, in pro. per., for appellant.

Raymond R. Start, Dist. Atty., J. Harold Hughes, First Asst. Dist Atty., Media, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK and McBRIDE, JJ.

McBRIDE Justice.

This is an appeal from the denial of a petition for habeas corpus by Relator who was convicted of murder in the first degree by a jury which fixed the penalty at life imprisonment. His motions in arrest of judgment and for new trial were denied by the court en banc and he did not appeal. Perhaps his decision not to appeal was sound for had he succeeded he would have again faced the possibility of a death sentence. He now seeks to raise questions which were litigated during his trial and upon those motions. It would appear that the decedent, Michael Arcomone, operated a small candy and grocery store at the corner of Second and Tilghman Streets in the City of Chester. On February 27, 1954, at about 10:45 p m., the Relator, accompanied by William Maxwell, entered the decedent's store. While the defendant stood at the front of the store near the door, drinking a bottle of soda, Maxwell asked the decedent for a pack of cigarettes and then drew a pistol, pointed it at Arcomone and announced that it was a 'stick-up.' The decedent attempted to resist and Maxwell shot him twice, one shot entering decedent's chest and causing death.

Relator's petition seeks (1) to question the sufficiency of the evidence; (2) that he was entitled to counsel during the taking of a confession subsequent to arrest but prior to indictment; and (3) that the admission into evidence of his past criminal record constituted double jeopardy. None of these questions would be held meritorious even on appeal a fortiori they will not be considered on Habeas Corpus. Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434; Commonwealth ex rel. Ashmon & Banmiller, 391 Pa. 141, 137 A.2d 236.

It would appear that after defendant's arrest he made a statement to the District Attorney in which, although he admitted his presence in the decedent's store at the time of the killing, he denied that he knew the robbery was to take place or that he was in any way involved in it. Thereafter, Maxwell made a statement to the District Attorney in which he admitted his guilt and implicated Relator. This was read to Relator and was not denied by him. Under the circumstances, he questions the propriety of the admission of Maxwell's ^[1] statement against him.

We have decided that where statements made in the presence of an accused and within his hearing are incriminating in character and naturally call for a denial, the absence of denial where there is opportunity to speak, constitutes an implied admission of the truth of the statement. Commonwealth v Johnson, 365 Pa. 303, 74 A.2d 144; Commonwealth v. Brooks, 355 Pa. 551, 50 A.2d 325; Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889. Whether this principle applies to this defendant in view of the fact that he had already made a written statement, which was a denial of the truth of Maxwell's statement, is one which is not open to us in this proceeding. The court below admitted the statement and also Relator's denial of the ground that the...