Com. v. Welch

• Citation: 585 A.2d 517,401 Pa.Super. 393
• Parties: COMMONWEALTH of Pennsylvania v. Renee WELCH a/k/a Allyson Renee Welch, Appellant.
• Decision Date: 23 January 1991
• Court: Superior Court of Pennsylvania

Page 517

585 A.2d 517

401 Pa.Super. 393

COMMONWEALTH of Pennsylvania v. Renee WELCH a/k/a Allyson Renee Welch, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 17, 1990.

Filed Jan. 23, 1991.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Comm., appellee.

Before OLSZEWSKI, KELLY and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after she was convicted on drug charges. Appellant raises eight issues for our consideration including an argument that it was error to allow testimony regarding the appellant's refusal to allow a search of her room without a warrant. Because we find this issue meritorious we vacate the judgment of sentence and remand for a new trial.

Briefly stated, the facts as they were related at trial and not seriously disputed are: in response to a radio message that an individual named Renee Welch was selling drugs from a certain address, the police went to the described address and knocked on the door. At that time the police spoke with appellant's mother and stepfather about the nature of the visit. Upon learning that the police suspected their daughter of selling drugs they inquired where the information came from. The police checked with the station and were told that there had been a call from appellant's brother, who also lived at the same address, implicating appellant. Upon hearing this appellant's stepfather called appellant's brother down from upstairs and confronted him with this information. At first the brother denied making the call but he then admitted it and went on to describe facts implicating appellant in drug selling activity. Appellant was then called downstairs and also confronted with the allegations which she denied. At that point, it was suggested by someone that if the allegations were false then she ought to allow the police to inspect her room. Appellant refused indicating that she would not allow a warrantless search of her bedroom.

Additional discussions took place during which appellant's nephew came down the steps from the floor containing appellant's bedroom. Appellant's brother then chased the nephew down the steps and yelled "stop him, he's got the drugs" at which time several balloons later found to contain narcotics fell from the nephew's shirt. In response to finding these balloons the nephew was instructed by appellant's mother to take the police upstairs and show them where he got them from. Eventually a search warrant was obtained at which time additional evidence was seized. At trial, one of the officers began testifying to the events as they transpired. As the officer began testifying to appellant's comments regarding searching her room, an objection was lodged and a sidebar discussion ensued. After hearing arguments of both counsel the officer was allowed to continue testifying at which time the appellant's refusal to allow a search absent a warrant was related.

Appellant argues that it was error to allow testimony regarding her refusal of a search of her bedroom in the absence of a warrant. Counsel made such an argument and in addition to arguing that it was improper to have her refusal used against her, counsel also indicated that the prejudice would greatly outweigh any probative value. We are inclined to agree that it was error to allow such questioning.

It is asserted by appellant's counsel that research of this issue has revealed no cases where the specific issue before us has been decided. Because we believe this issue is analogous in significant respects to the invocation of one's right to silence, we rely upon the cases discussing this issue.

In Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972), our Supreme Court held that it was reversible error to admit evidence of an accused's request for counsel and silence at arrest. At the time Haideman was decided it was the more prominent view that such evidence was an impermissible impairment upon one's Fifth Amendment right against self incrimination. For instance, in Fowle v. United States, 410 F.2d 48 (9th Cir.1969), the Ninth Circuit Court of Appeals stated,

We simply cannot adopt an interpretation of the Fifth Amendment under which one exercising his right to remain silent upon and immediately after his arrest--a right which the Supreme Court has so earnestly sought to guarantee and preserve--is severely prejudiced by his recourse to that cherished right. It would be anomalous indeed if honorable law enforcement officers were required to elaborate upon the traditional fifth amendment warning and advise arrested persons, in effect: If you say anything it may be used against you. You have the constitutional right to remain silent, but if you exercise it, that fact may be used against you.

The Seventh Circuit Court of Appeals made similar observations stating, "[t]he testimony elicited here could well have led the jury to infer guilt from defendant's refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty." United States v. Kroslack, 426 F.2d 1129, 1130-31 (7th Cir.1970). Although in the present case we are dealing with an assertion of a different constitutional right, the freedom from warrantless searches, we feel the same reasoning must apply to the assertion of that right.

As we read the various comments made by the courts regarding the assertion of one's Fifth Amendment right, the overriding tone is that it is philosophically repugnant to the extension of constitutional rights that assertion of that right be somehow used against the individual asserting it. Although the cases have discussed the Fifth Amendment right we see no reason to treat one's assertion of a Fourth Amendment right any differently. It would seem just as illogical to extend...