Com. v. Lewis

• Decision Date: 31 October 1991
• Citation: 528 Pa. 440,598 A.2d 975
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Reginald LEWIS, Appellant.
• Court: Pennsylvania Supreme Court

Page 975

598 A.2d 975

528 Pa. 440

COMMONWEALTH of Pennsylvania, Appellee, v. Reginald LEWIS, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 23, 1990.

Decided Oct. 31, 1991.

[528 Pa. 442] William P. James, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Marianne E. Cox, Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This appeal presents two issues of first impression: Whether the failure of a trial judge to instruct the jury that they are not permitted to draw any adverse inference from the defendant's decision not to testify violates an accused's rights pursuant to Article I, Section 9 of the Pennsylvania Constitution when the accused has requested that such an instruction be given; and whether the failure to give that instruction constitutes harmless error. For the reasons that follow, we hold that such an omission does violate the accused's rights and does not constitute harmless error.

FACTS

Michael Hawkins was fatally stabbed on September 11, 1983 during an altercation inside Holmesburg State Prison, Philadelphia, Pennsylvania. Appellant, Reginald Lewis, was convicted by a jury on October 17, 1986, of murder in the first degree and possession of an instrument of crime for the killing of Michael Hawkins. On November 28, 1988, post trial motions were denied, and the trial court imposed the sentence of death previously set by the jury. This is a direct appeal from the imposition of the sentence of death pursuant to 42 Pa.C.S.A. §§ 722(4), 9711(h)(1); Pa.R.A.P. Rule 702(b).

In each case where the death penalty is imposed, this Court is required to conduct an independent review of the sufficiency of the evidence, even where the defendant has not challenged the conviction on that ground. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh'g. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). Our review of the evidence requires a determination The events culminating with Hawkins' death began at approximately 9:00 p.m. on the evening of September 11, 1983, in cell block G of Holmesburg State Prison where the appellant and the deceased were both residents. The cell block was 146 yards long with one gate for ingress and egress. Around 9:00 p.m., Hawkins approached appellant, who was standing at the midpoint of the cell block in the corridor which runs between the cells. The two men heatedly exchanged words. Hawkins threw a punch that missed appellant, but which prompted one of the block guards, Robert Quinones, to separate the men.

of whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985), cert. denied, 480 U.S. 935, 107 S.Ct. 1577, 94 L.Ed.2d 768 (1987).

An hour later, Hawkins again approached appellant, who was in the rear of the cell block conversing with several other inmates. There is no clear consensus among the witnesses as to the precise facts of this confrontation. What was apparent, however, was that one of the two inmates was armed with a homemade knife. The most logical version of the facts, consistent with the jury's verdict, is that Hawkins initiated the fight, drawing first blood from appellant. Appellant then came into possession of the knife and pursued Hawkins. The entire cell block disrupted around this activity. Inmates began throwing benches and garbage cans and a mob of more than fifty inmates formed in the rear of the cell block moving toward the front gate in pursuit of Hawkins.

Hawkins reached the gate first and screamed for the guards to open it as the pursuing mob yelled "kill him." Appellant broke from the crowd, shouted "charge," and stabbed Hawkins. Within seconds, the guards opened the gate and Hawkins fell to the ground. He was rushed to the hospital where he was unsuccessfully operated on, and pronounced dead. Appellant was also taken to the emergency room and was treated and released.

Immediately following the stabbing, one of the guards, Robert Quinones, recovered a homemade knife from the floor of the cell block. Quinones testified that the knife he discovered looked like the same knife he observed in appellant's left hand during the chase. Blood found on the knife was consistent with Hawkins' blood type.

A review of the preceding facts establishes that there was sufficient evidence presented at trial to support appellant's conviction for first degree murder.

PROCEDURAL HISTORY

A few days after the incident, appellant was arrested for the murder of Michael Hawkins. Prior to trial, appellant escaped from Holmesburg State Prison. Upon being apprehended in Buffalo, New York, he was returned to this jurisdiction.

Trial was originally scheduled to commence on November 14, 1985 in Philadelphia County. During jury selection the appellant requested a change of venue, which was granted. ¹ The matter was transferred to Lancaster County where jury selection began on October 6, 1986. On October 8, 1986, after the jury had been selected, appellant requested that venue be returned to Philadelphia County. ² This request was denied. ³

At trial, appellant argued three alternate theories of defense: First, that the Commonwealth failed to prove appellant struck the fatal blow; second, that in the event appellant killed Hawkins, he did so in self-defense; and third, if appellant killed Hawkins, he did so in the heat of passion without premeditation.

Appellant presented several witnesses in support of his various defenses, but did not take the stand. Prior to the court's charge to the jury, appellant requested the jurors be instructed not to draw an adverse inference against appellant from his failure to take the stand; the so-called "no-adverse-inference" instruction. ⁴ The trial judge agreed to give the requested charge, but negligently failed to do so during the instructions to the jury. When counsel pointed out this omission, the court mistakenly stated that it did in fact give the instruction, and declined to repeat it. Following conviction and post trial motions, the trial judge declined to grant a new trial, finding the failure to instruct the jury as requested amounted to harmless error.

The Commonwealth concedes that the "no-adverse-inference" charge was not given. It asserts, however, that the failure to so instruct the jury was harmless error.

DISCUSSION

We will first address the failure of the trial judge to include the "no-adverse-inference" charge in his instructions, as a matter of Pennsylvania constitutional law. Recently, in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), we reaffirmed our prior caselaw in stating that although it may be useful to examine federal case-law as guidance, the rich, unique history of the Pennsylvania Constitution requires an independent analysis under that primary Commonwealth charter in each case. Id., 526 Pa. at 389, 586 A.2d at 895.

"No-Adverse-Inference" Charge

Article I, Section 9 of the Pennsylvania Constitution provides as follows:

Sec. 9. Rights of accused in criminal prosecutions

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face-to-face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.

In conjunction with the above constitutional provision, legislation has existed as early as 1887 in this Commonwealth prohibiting comment, by the court or prosecutor, concerning the failure of a criminal defendant to testify on his own behalf. See Act of May 23, 1887, P.L. 158, Sec. 10, now codified at 42 Pa.C.S.A. Sec. 5941. ⁵ The genesis of this provision was the clear recognition that the Pennsylvania Constitution carefully safeguards the right of an accused to stand silent at his or her trial, without adverse consequence. See White, Constitution of Pennsylvania 104-05 (1907).

This Court has determined on numerous occasions that Article I, Section 9, in providing that a defendant "cannot be compelled to give evidence against himself ...," protects the right of the defendant to stand mute protected by the presumption of innocence, without facing the oppressive task of having to explain his or her silence. See Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973); Commonwealth v. Brenizer, 467 Pa. 347, 356 A.2d 784 (1976); see also, Commonwealth v. Miller, 205 Pa.Super. 297, 208 A.2d 867 (1965). ⁶ Although we have never specifically held pursuant to Pennsylvania law that the "no-adverse-inference" instruction is required upon the defendant's request, such a belief has been axiomatic in our jurisprudence. ⁷

Our decision today is consistent with the United States Supreme Court's recent decision in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). Carter held unequivocally that the Fifth Amendment of the United States Constitution encompasses a right to a "no-adverse-inference" jury instruction when a criminal defendant makes a timely request to the trial court. In Carter, the Supreme Court stated that:

The principles enunciated in our cases construing this privilege [against self-incrimination], against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal...