Commonwealth v. Haidman

• Decision Date: 29 December 1971
• Citation: Commonwealth v. Haidman, 284 A.2d 757 (Pa. 1971)
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania v. George P. HAIDEMAN, Appellant.

Page 757

284 A.2d 757

COMMONWEALTH of Pennsylvania v. George P. HAIDEMAN, Appellant.

Supreme Court of Pennsylvania.

Dec. 29, 1971.

Appeal No. 132 January Term, 1971 from the Order of the Superior Court, No. 151 October Term, 1970, affirming the judgment at No. 60 June Term, 1969 Common Pleas-Criminal Court, Delaware County; Francis J. Catania, Judge.

Carmen P. Belefonte, Chester, for appellant.

Ralph B. D'Iorio, Asst. Dist. Atty., Media, for appellee.

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

OPINION OF THE COURT

PER CURIAM.

The Court being equally divided, the Order of the Superior Court, 217 Pa.Super. 708, 266 A.2d 492, is affirmed.

BELL, C.J., did not participate in the consideration or decision of this case.

ROBERTS, J., filed a Dissenting Opinion, in which EAGEN and O'BRIEN, JJ., join.

ROBERTS, Justice (dissenting).

Following trial by jury, appellant George Haideman was found guilty of bookmaking, setting up a gambling establishment and conspiracy, and sentenced to undergo imprisonment for six to twenty-three months and to pay a fine of $500. In this direct appeal, it is claimed that the trial court erred in permitting certain Commonwealth witnesses to testify as to appellant's silence and request for counsel at the time of his arrest. Having reviewed the record, I believe that such testimony was indeed impermissible and prejudicial.

During its case in chief the Commonwealth established through the testimony of one of the arresting officers that appellant was highly excited and emotionally agitated at the time of his arrest. During the course of further direct examination by the prosecuting attorney, this same officer then testified:

"A. After we calmed him down and put him up against the store he stopped screaming, I gave the Body Warrant and the Search Warrants I had in my possession to [Trooper] Raymond Purcell. While we were standing on the sidewalk, Raymond Purcell read the subject his constitutional rights, and he advised him of the Warrant and the reason of our business.

"Q. When you say you advised him of the Warrant and the reason of our business, what do you mean, Trooper Kardash?

"A. He read him his constitutional rights, and he read the Search Warrant to him and the Body Warrant.

"Q. When the constitutional rights were read to the defendant, did the defendant say anything?

"A. He didn't say nothing; he calmed down and he shut up." (Emphasis added.)

Appellant's counsel immediately objected to this testimony and moved for a mistrial. There followed a long colloquy during which the prosecuting attorney indicated that he was only attempting to demonstrate that appellant had been duly advised of his rights and was aware of them. The trial court then overruled the objection and denied the motion for mistrial.

The prosecuting attorney then called a second police officer and interrogated him as follows:

"Q. What did you do as you entered?

"A. Again advised the subject of his constitutional rights, and asked him if he understood what I was speaking of, because naturally there is physical emotion and so forth involved, and he was more settled down, and he was advised of his constitutional rights, which he stated he understood, and also requested to remain mute pending counsel." (Emphasis added.)

Appellant's counsel again objected and the objection was again overruled.

As there is nothing in the present record indicating that appellant's silence occurred in the face of an accusation, it does not appear that the Commonwealth's evidence respecting that silence runs afoul of the prohibition against the use of tacit admissions. See Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624-1625 n. 37, 16 L.Ed.2d 694 (1966); Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968); Commonwealth v. Stevens, 429 Pa. 593, 240 A.2d 536 (1968).

We are nevertheless persuaded that any testimonial reference to an accused's silence and request for a lawyer at the time of arrest is reversible error, when made in the jury's presence and over timely objection. As aptly stated by the United States Court of Appeals for the Fifth Circuit in the factually similar case of Baker v. United States, 357 F.2d 11 (1966):

"In asking for counsel before making any statement, appellant was exercising a Constitutional right which the Supreme Court has time and again declared to be guaranteed to all persons accused of crime. To have proven that appellant requested the right of counsel and thereafter made no further statement was, we feel, as objectionable as it would have been to comment on a defendant exercising his...