Com. v. Davis

• Citation: 305 A.2d 715,452 Pa. 171
• Parties: COMMONWEALTH of Pennsylvania v. Curtis Wilbur DAVIS, Appellant.
• Decision Date: 23 May 1973
• Court: United States State Supreme Court of Pennsylvania

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305 A.2d 715 452 Pa. 171 COMMONWEALTH of Pennsylvania
v.
Curtis Wilbur DAVIS, Appellant. Supreme Court of Pennsylvania. May 23, 1973.

[452 Pa. 172]

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W. Donald Sparks, Chester, for appellant.

[452 Pa. 173] Stephen J. McEwen, Jr., Dist. Atty., [452 Pa. 172] Ralph B. D'Iorio, Asst. Dist. Atty., Media, for appellee.

Before JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

[452 Pa. 173] OPINION OF THE COURT

ROBERTS, Justice.

Appellant, Curtis Davis, was arrested in December of 1968 and charged with murder, voluntary manslaughter, involuntary manslaughter and robbery. A timely filed pre-trial motion to suppress evidence was denied. Thereafter, on September 25, 1969, appellant was adjudged guilty, by a jury, of murder, voluntary manslaughter and two counts of robbery. Appellant was sentenced, by the jury, to death on the

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murder conviction, and from ten to twenty years imprisonment, by the court, on the robbery convictions. Post-trial motions in arrest of judgment and for a new trial were denied. This direct appeal followed. We now reverse and remand for a new trial.

Appellant contends that the assistant district attorney committed reversible error by attempting to create an impermissible adverse inference in the minds of the jurors regarding appellant's exercise of his Fifth Amendment rights at trial. ¹ Appellant alleges that this was accomplished by the prosecutor's persistent references in his closing argument, over objection, to the evidence against the defendant being 'uncontroverted.' Review of the record supports appellant's contention that the prosecution's repeated use of the words 'uncontroverted' and 'uncontroverted fact' created an adverse inference prohibited by the Fifth Amendment to the United States Constitution, ² Article 1, § 9 of the [452 Pa. 174] Pennsylvania Constitution, P.S., ³ and the Act of May 23, 1887. ⁴

It is well settled that the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), forbids either comment by the prosecution on the accused's silence at trial or instructions by the court that such is evidence of guilt. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). 'Upon the present record, (we) believe that the prosecutorial comment about the 'uncontradicted' (or 'uncontroverted') nature of the Commonwealth's case runs directly afoul of the Griffin prohibition.' Commonwealth v. Allen, 445 Pa. 156, 159, 281 A.2d 634, 635 (1971) (Roberts, J., dissenting from an opinionless per curiam affirmance, joined by Eagen, J., and O'Brien, J.).

Here, where appellant neither testified at trial nor offered any other defense, the '. . . prosecutore's statement(s) implied that the . . . (defendant himself was) the only (one) who could and should have denied the charges against (him). The jury Might reasonably have inferred from (these) statement(s) that (his) failure to do so was evidence of (his) guilt.' Commonwealth v. Reichard, 211 Pa.Super. 55, 60, 233 A.2d 603, 606 (1967). Such an inference is patently contrary to the mandate of Griffin, supra. ⁵

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[452 Pa. 175] As the First Circuit recently stated in United States v. Flannery, 451 F.2d 880, 881--882 (1971):

'. . . (W)e (have) held that for the government to say, in summation to the jury, that certain of its evidence was 'uncontradicted,' when contradiction would have required the defendant to take the stand, drew attention to his failure to do so, and hence was unconstitutional comment. Desmond v. United States, 1 Cir., 1965, 345 F.2d 225. We do not adopt the reasoning of those courts which state, as it seems to us, ingenuously, that to say that the government witnesses' testimony was uncontradicted is simply a statement of historical fact. There are many 'facts' which are benign in themselves. The difficulty is that such reference, when only the defendant could have contradicted, clearly calls to the jury's mind the fact that he failed to testify.' ⁶ (Emphasis[452 Pa. 176] added) (Footnotes omitted.)

Accord, United States v. Handman, 447 F.2d 853 (7th Cir. 1971); United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665; Rodriquez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969); Doty v. United States, 416 F.2d 887 (10th Cir. 1968), vacated sub nom., Epps v. United States, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542 (1971); United States v. Lyon, 397 F.2d 505 (7th Cir. 1968), cert. denied, sub nom., Lysczyk v. United States, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117; United States v. Parisi, 365 F.2d 601, 607--609 (9th Cir. 1966), vacated sub nom., O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); Peeples v. United States, 341 F.2d 60, 64--65 (5th Cir. 1965), cert. denied, 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280.

On this record, where appellant did not testify and offered no other witnesses or evidence at trial, it would be an act of sophistry to conclude that the remarks of the assistant district attorney could have been taken as anything other than a reference to the fact that appellant, and appellant alone, failed to rebut the evidence against him. The prosecutor's attempt to have the jury equate appellant's guilt with his silence at trial was improper. Such comments, even by implication, are violative of Griffin supra. See also Handman, supra.

Not only were appellant's rights under the United States Constitution violated, but also his rights under Article 1, § 9 of the Pennsylvania Constitution, and the Act of May 23, 1887 ⁷ which implements it.

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It is well settled that Any comment by the prosecution or the court violates the Act of 1887 if it '. . . draws attention to or focuses on the fact that no one except the defendant can rebut the Commonwealth's case. . . .' [452 Pa. 177] Reichard, supra, 211 Pa.Super. at 58, 233 A.2d at 604. It is obvious, on this record, that the prosecutor's comments clearly did that which is prohibited by the Act. 'We think the assistant district attorney went too far, both under the Act of 1887 and under the Fifth...