Com. v. Dravecz

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore BELL; MUSMANNO; EAGEN; ROBERTS; BELL; EAGEN; ROBERTS; BELL
Citation227 A.2d 904,424 Pa. 582
Decision Date21 March 1967
PartiesCOMMONWEALTH of Pennsylvania v. Joseph H. DRAVECZ, Appellant.

Page 904

227 A.2d 904
424 Pa. 582
COMMONWEALTH of Pennsylvania
v.
Joseph H. DRAVECZ, Appellant.
Supreme Court of Pennsylvania.
March 21, 1967.

[424 Pa. 583]

Page 905

Michael V. Franciosa, Easton, for appellant.

George J. Joseph, Dist. Atty., for appellee.

[424 Pa. 582] Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

[424 Pa. 583] OPINION OF THE COURT

MUSMANNO, Justice.

Joseph J. Dravecz was employed as a laborer by the Caisson Corporation which owned a trailer in which were stored many items of equipment being used on a construction job near Airport Exit No. 22 in Lehigh County. Some of this equipment disappeared and part or all of it was found on a farm owned by the parents of Dravecz. A couple of days later State Police questioned a Eugene Stockley, labor foreman for the Caisson Co., who gave the police a signed, notarized statement in which he said that Dravecz had appeared on a certain day at Stockley's residence with some of the missing Caisson equipment and asked Stockley to sell the equipment for him. When Dravecz learned of the visit to his parental home by the police, he voluntarily[424 Pa. 584] appeared at State Police headquarters and submitted himself to questioning by Corporal Poluka. He denied that he had taken the tools or was in any way criminally connected with them.

Corporal Poluka then brought Stockley before Dravecz and read to Dravecz the written statement which had been made by Stockley. Dravecz made no comment at the end of the reading of the statement. He was indicted on charges of burglary, larceny and receiving stolen goods, and found guilty on the three counts. He appealed to the Superior Court which affirmed the conviction and we allowed allocatur.

At the trial the statement made by Stockley was read to the jury. The defendant contends this was error and deprived him of his constitutional rights against self-incrimination under the Fifth Amendment to the Constitution of the United States.

The Supreme Court of the United States declared in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, that:

'The Fourteenth Amendment secures against state invasion * * * the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.'

Thus, in speaking of the right of a defendant against self-incrimination in Pennsylvania, it is no longer necessary to distinguish between States and Federal cases. The protection against self-incrimination because of the 14th amendment which guarantees to all United States citizens, no matter where located, the immunities proclaimed to them in Federal territory, applies as effectively in Pennsylvania and the other States as it does in territory actually under the jurisdiction of the United States government.

It accordingly follows that all cases which were decided in Pennsylvania prior

Page 906

to the Malloy decision are no longer authoritative if they conflict with the Fifth [424 Pa. 585] Amendment to the Constitution of the United States, which declares that no person 'shall be compelled in any criminal case to be a witness against himself.'

The Superior Court, in affirming the conviction of the defendant, declared that it was bound by Commonwealth v. Vallone, 347 Pa. 419, 32 A.2d 889, which pronounced the proposition:

'The rule of evidence is well established that, when 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.'

This rule, which hals become known as the tacit admission rule, is too broad, widesweeping, and elusive for precise interpretation, particularly where a man's liberty and his good name are at stake. Who determines whether a statement is one which 'naturally' calls for a denial? What is natural for one person may not be natural for another. There are persons possessed of such dignity and pride that they would treat with silent contempt a dishonest accusation. Are they to be punished for refusing to dignify with a denial what they regard as wholly false and reprehensible? 1

The untenability of the tacit admission rule is illustrated in the following startling proposition. A defendant[424 Pa. 586] is not required to deny any accusation levelled at him in a trial no matter how inculpatory. He may be charged with the most serious of offenses, including murder and high treason. A cloud of witnesses may testify to circumstances, events, episodes which wrap him in a serpent's embrace of incrimination, but no inference of guilt may be drawn from his failure to reply or to take the witness stand. Indeed, and properly so, if the prosecuting attorney or the judge makes the slightest reference to the fact that the accused failed to reply to the accusations ringing against him, and a verdict of guilt follows, a new trial is imperative. And yet, under the Vallone holding, an accusatory statement made in any place chosen by the accuser, whether on the street, in the fields, in an alley or a dive, if unreplied to, may be used as an engine in court to send the defendant to prison or to the electric chair.

How so incongruous a doctrine ever gained solemn authoritativeness might well be a subject for a long article in a law review. Especially when one reflects on the fact that the rule is founded on a wholly false premise. One can understand how a principle of law built on solid rock might incline to slant from the perpendicular because of over-heavily superstructure piled on it as it rises higher and higher into the realm of hypothesis, but the tacit admission rule has no solid foundation whatsoever. It rests on the spongey maxim, so many times proved unrealistic, that silence gives consent. Maxims, proverbs and axioms, despite the attractive verbal packages in which they are presented to the public, do not necessarily represent universal truth.

Indeed, there are proverbs which contradict one another flatly, as, for instance, A rolling stone gathers no moss, as against The traveling bee gathers the honey; [424 Pa. 587] or

Page 907

Look before you leap, as against, He who hesitates is lost. 2

The very proverb Silence gives consent has a number of vigorous opponents in Silence is Golden; Closed lips hurt no one, speaking may; Speech is of time, silence is of eternity; For words divide and rend, but silence is most noble till the end; And silence like a poultice comes to heal the blows of sound; Be silent and safe, silence never betrays you.

It may be desirable and dramatic for the wrongly accused person to shout: 'I am innocent!' but not everybody responds spontaneously to stimuli. The accusation may be so startling that the accused is benumbed into speechlessness. There are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.

In Alberty v. United States, 162 U.S. 499, 16 S.Ct. 864, 40 L.Ed. 1051, the Supreme Court said:

'It is not universally true that a man who is conscious that he had done a wrong 'will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right and proper,' since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses.'

Under common law and, of course, this was doubly true in medieval continental Europe, forced confessions were as common as they were cruel and inhuman. The framers of our Bill of Rights were too aware of the excesses possible in all governments, even a representative government, to permit the possibility that any [424 Pa. 588] person under the protection of the United States flag could be forced to admit to having committed a crime. In order to make the protection hazard-proof, the framers went beyond coercion of confessions. They used the all-embracive language that no one could be compelled 'to be a witness against himself'. What did the Trial Court in this case do but compel Dravecz to be a witness against himself? dravecz had said nothing, yet because something was read to him, to which he made no comment, the prosecution insisted that Dravecz admitted guilt. If Dravecz could not be made a self-accusing witness by coerced answers, he should not be made a witness against himself by unspoken assumed answers.

A direct confession unwillingly given is a coerced confession. A tacit admission is still an unwilling performance. It is more gentle because it is silent, but it is as insidious as monoxide gas which does not proclaim its presence through sound or smell. A forced confession is a steam-chugging locomotive moving down the track, blowing its whistle and clanging its bell with the victim tied to the rails. A tacit admission is a diesel locomotive silently but relentlessly moving forward without audible signals and striking the victim unawares. The approach is different, the effect is the same.

If the police prepare a statement reciting facts, which precisely and physically point to the defendant as the author of a certain crime, and read it to him and he remains silent during the reading, the statement may not be introduced in evidence against him. Yet, under the Vallone doctrine, a third person may utter anything...

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83 practice notes
  • Commonwealth  v. Molina
    • United States
    • Pennsylvania Superior Court
    • November 9, 2011
    ...are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.Commonwealth v. Dravecz, 424 Pa. 582, 587, 227 A.2d 904, 907 (1967). 19 Many may remain silent as they have a knowledge of their Miranda rights, others might remain silent to pr......
  • State v. Daniels, No. 6407
    • United States
    • Appellate Court of Connecticut
    • April 11, 1989
    ...that the inference of assent was too unreliable. See, e.g., State v. Kelsey, 201 N.W.2d 921, 927 (Iowa 1972); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). The doctrine has also been criticized by commentators. See C. Gamble, "The Tacit Admission Rule: Unreliable and Unconstitu......
  • Key-El v. State, KEY-EL
    • United States
    • Court of Appeals of Maryland
    • September 1, 1997
    ...such evidence. In People v. DeGeorge, 73 N.Y.2d 614, 543 [709 A.2d 1309] N.Y.S.2d 11, 541 N.E.2d 11 (1989), and Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967) the use of the accused's tacit admission was held to be reversible error. The rule in Michigan is not clear. Cf. People v......
  • Com. ex rel. Staino v. Cavell
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 24, 1967
    ...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. ......
  • Request a trial to view additional results
83 cases
  • Commonwealth  v. Molina
    • United States
    • Pennsylvania Superior Court
    • November 9, 2011
    ...are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.Commonwealth v. Dravecz, 424 Pa. 582, 587, 227 A.2d 904, 907 (1967). 19 Many may remain silent as they have a knowledge of their Miranda rights, others might remain silent to pr......
  • State v. Daniels, No. 6407
    • United States
    • Appellate Court of Connecticut
    • April 11, 1989
    ...that the inference of assent was too unreliable. See, e.g., State v. Kelsey, 201 N.W.2d 921, 927 (Iowa 1972); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). The doctrine has also been criticized by commentators. See C. Gamble, "The Tacit Admission Rule: Unreliable and Uncon......
  • Key-El v. State, KEY-EL
    • United States
    • Court of Appeals of Maryland
    • September 1, 1997
    ...such evidence. In People v. DeGeorge, 73 N.Y.2d 614, 543 [709 A.2d 1309] N.Y.S.2d 11, 541 N.E.2d 11 (1989), and Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967) the use of the accused's tacit admission was held to be reversible error. The rule in Michigan is not clear. Cf. People v......
  • Com. ex rel. Staino v. Cavell
    • United States
    • United States State Supreme Court of Pennsylvania
    • April 24, 1967
    ...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. ......
  • Request a trial to view additional results

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