Commonwealth v. Yaple

• Decision Date: 18 September 1970
• Citation: Commonwealth v. Yaple, 217 Pa.Super. 232, 273 A.2d 346 (Pa. Super. Ct. 1970)
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. James Joseph YAPLE, Appellant.

Page 346

273 A.2d 346

217 Pa.Super. 232

COMMONWEALTH of Pennsylvania v. James Joseph YAPLE, Appellant.

Superior Court of Pennsylvania.

Sept. 18, 1970.

Application for Allocatur Denied Nov. 2, 1970.

Robert G. Huhta, James D. McDonald, Jr., and Quinn, Plate, Gent, Buseck & Leemhuis, Erie, for appellant.

Frank L. Kroto, Jr., Asst. Dist. Atty., William E. Pfadt, Dist. Atty., for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.

CERCONE, Judge.

The defendant, James Joseph Yaple, was found guilty by a jury of violating the 'Drug, Device and Cosmetic Act' of September 26, 1961, P.L. 1664, 35 P.S. § 780--1 et seq., more particularly section 4(q) thereof (35 P.S. § 780--4(q)), which makes it unlawful to possess any dangerous or narcotic drug.

The defendant made motions in arrest of judgment and for new trial which were refused by the court en banc. The defendant now appeals.

On September 9, 1968, at or about 10:15 P.M., Erie Police Captain Bagnoni, with two of this men, Sergeant Schwartz and Officer Sokolowski, while cruising in a patrol car, observed defendant Yaple and two others (Donald Seifert and Thomas Strick) standing on the lawn of a residence located at 1314 West Grandview Boulevard, Erie, Pennsylvania. The officers testified that as they pulled up they saw the defendant turn his back on them and with his right arm throw an object into a wooded area nearby. The officers found three small plastic bags on the ground at approximately the place where defendant was standing when first seen by the officers. Two of those bags contained approximately 88 white tablets, and the third bag contained approximately 15 green and yellow capsules. When the search into the wooded area in the darkness failed to reveal the object thrown by defendant, the area was revisited the next morning, and after a brief search, Officer Loco of the Erie Police Department found approximately 68 green tablets contained in a cellophane cover from a cigarette package. All the bags were forwarded to the Federal Bureau of Investigation Laboratory in Washington, D.C. for identification. At trial, Elwood Yates, Jr., a special agent with the Federal Bureau of Investigation, testified that some of the pills and tablets contained amphetamine and the remainder contained phenobarbital. He identified the pills as coming within the definition of the term 'dangerous drug' contained in the Act under which defendant was indicted, that definition expressly including amphetamines and drugs containing any quantity of barbituric acid (which phenobarbital does contain).

Yaple took the stand in his own defense. He admitted throwing the cellophane packet into the wooded area. He explained that when he and his friends were walking across the lawn he heard something hit the ground and he went over and picked it up just as the police pulled up. He said that when he saw Captain Bagnoni, he threw the object away. Yaple said he thought one of his friends had dropped the object, didn't know what it was, and that he threw it away to avoid trouble with Captain Bagnoni. Apparently there had been some confrontation between Captain Bagnoni and the defendant before that night. Yaple denied any knowledge of the three bags of pills found on the ground where he had been standing.

Yaple called Seifert and Strick as defense witnesses. Seifert testified he did not see the Bag Yaple threw until Yaple bent to pick it up and that he did not see any of the other bags on the ground. Yet, he refused to answer whether any of the bags were his because, he explained, the answer might tend to incriminate him.

Strick's testimony was to the same effect. Strick testified that he saw the defendant throw something and then he refused to answer where Yaple obtained what he threw. He was then ordered by the court to testify and he answered that Yaple 'picked it up off the ground.' He stated he did not see any packages fall, did not see anybody kick any packages or lay any packages down. He said he did not see what Yaple picked up. He denied ever having seen any of the bags prior to the time the police came on the scene, but yet refused to answer whether they belonged to him on the grounds the answer might incriminate him.

We thus have a defendant who admits throwing one bag away but disclaiming knowledge of the contents of that bag or any of the other bags. Further, by innuendo, he implicates his two friends, Strick and Seifert; in turn, these two disclaim knowledge of the bags and their contents, yet claim they would be incriminated if forced to answer as to ownership of the bags. In view of these circumstances, the court below charges the jury: 'Concerning the witnesses' taking the Fifth Amendment, any witness has a right to do this when a question is directly asked, the answer to which might incriminate, in other words might state that I have committed a crime, I am not required to answer. In this case we have two different witnesses saying the same thing. When asked if these pills were theirs, each one refused to answer on the grounds that he might incriminate himself. You are, as I mentioned before, at liberty to decide what witnesses you want to believe. That would be something for you to consider in this case, because neither one of them would tell us that he had possession of these items. They have a right to say that, but you can consider it in this case in arriving at the credibility of each witness.'

Though defendant Yaple took no specific exception to this portion of the charge, he claimed it as error and relied on it in his motion for new trial. Two members of the court en banc were of the opinion that the trial judge had erred in the above comment on the witnesses' exercise of the right to refuse to incriminate themselves but held that failure to specifically take exception to that portion of the charge precluded the grant of new trial. Rule 1119(b) of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix and the holding of Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968), were cited as authority for this decision. A third member of the court en banc filed an opinion concurring in the refusal of the new trial on the ground that the Trial Judge's comment did not constitute error. It is with this latter view that we agree.

Article I, Section 9 of the Pennsylvania Constitution, P.S., provides: '* * * he (the accused) cannot be compelled to give evidence against himself * * *' and the Act of May 23, 1887, P.L. 158, § 10, 19 P.S. § 631 also provides: 'Except defendants actually upon trial in a criminal court any competent witness may be compelled to testify in any proceeding, civil or criminal; but he may not be compelled to answer any question which in the opinion of the trial judge, would tend to criminate him; nor may the neglect or refusal of any defendant, actually upon trial in a criminal court, to offer himself as a witness be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial.' Our courts have made it clear that the protection afforded by both the Constitution and the Statute also extends to witnesses. As stated in Commonwealth v. Tracey, 137 Pa.Super. 221, 224, 8 A.2d 622, 624 (1939): 'The provision of Art. I sec. 9 of the Constitution of Pennsylvania that one cannot be compelled to give evidence against himself applies to witnesses no less than the accused (In re Myers and Brei, 83 Pa.Super. 383) and by the Act of May 23, 1887, P.L. 158, § 10, 19 P.S. § 631, also, a witness 'may not be compelled to answer any question which, in the opinion of the trial judge, would tend to criminate him. " In accord are the cases of Commonwealth v. Katz, 414 Pa. 108, 198 A.2d 570 (1964) and Snyder Appeal, 398 Pa. 237, 157 A.2d 207 (1960).

This privilege against self-incrimnation has been held to come within the protection afforded by the due process clause of the Fourteenth Amendment of the United States Constitution: Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). However, if a witness exercises that privilege and remains silent, a comment relating to that silence or claim of privilege is not automatic error. To constitute error, the comment must be adverse. The rule was stated by this court in Commonwealth v. Miller, 205 Pa.Super. 297, 302, 208 A.2d 867, 869 (1965): '* * * it has been held permissible in criminal cases for the trial judge and the district attorney to comment to the jury on the defendant's failure to testify provided it is done fairly and does not attempt to raise any adverse inference in the mind of the jury. The statute prohibits adverse comment; not comment generally.' In Commonwealth v. Reichard, 211 Pa.Super. 55, 58, 233 A.2d 603, 604 (1967), this Court pointed out: 'In essence, to constitute error, the comment must indicate a duty of the defendant to testify, and permit an unfavorable inference to be drawn from his failure to do so.'

We do not believe that the charge in the instant case was unfair or tended to raise any adverse inferences. The trial judge did not charge the jury that the witnesses should have testified. He did not tell the jury that they could draw any unfavorable inference from the witnesses' refusal to testify. The Trial Judge in fact told the jury that the witnesses had a right to claim the privilege. He said '* * * but you can consider it in this case in arriving at the credibility of each witness.' The witnesses testified that they knew nothing about the bags or the contents thereof, and further that they had not seen them before. Yet, each refused to answer whether the bags belonged to them. The Trial Judge had the right to call the jury's attention to matters bearing on the witnesses' credibility (Cohen v. Philadelphia Rapid Transit Co., 228 Pa. 243, 77 A. 500 (1910)), and to permit the jury to determine the credibility of these witnesses by taking into consideration the...