Commonwealth v. Danzy

• Decision Date: 19 September 1973
• Parties: COMMONWEALTH of Pennsylvania v. James Edward DANZY, Appellant.
• Court: Pennsylvania Superior Court

310 A.2d 291

225 Pa.Super. 234

COMMONWEALTH of Pennsylvania v. James Edward DANZY, Appellant.

Superior Court of Pennsylvania.

September 19, 1973.

Ricardo C. Jackson (Court Appointed) Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Milton M. Stein, Asst. Dist. Atty Chief, Appeals Div., James T. Ranney, Asst. Dist. Atty Asst. Chief, Appeals Div., Philadelphia, for appellee.

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

SPAETH, Judge:

This is an appeal from a conviction, after a jury trial, of burglary aggravated robbery, assault and battery, and aggravated assault and battery. The issue is with respect to the following part of the charge:

A person who comes before the Court has a constitutional right not to give evidence of any kind. They have a constitutional right not to give evidence. You, the jury, have a duty not to hold that against them in any way. A person's right not to give evidence imposes upon you the duty not to draw any inference of any kind whatsoever against a person who is charged before you, because they do not give evidence. . . . You must not under any circumstances consider the fact that a defendant does not give evidence in a case. It is your duty under the law.

Appellant asserts that in the absence of any request by him it was error to give this charge.

Rule 1119 of the Rules of Criminal Procedure, 19 P.S. Appendix, provides:

(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to dfeliberate. . . .

Thus the time for the defendant to decide whether he wants a charge regarding his decision not to testify is before the jury retires. The charge is designed for the protection of the defendant in accordance with the Act of May 23, 1887, P.L. 158 § 10, 19 P.S. § 631; and so long as the defendant does not object it is not error to give the charge, if, as in the present case, the charge is fairly stated. Commonwealth v. Thomas, 429 Pa. 227, 239 A.2d 354 (1968), Commonwealth v. Schuster, 158 Pa.Super. 164, 44 A.2d 303 (1945).

We note appellant's argument that some other jurisdictions have chosen a procedure that forbids the charge unless specifically requested by the defendant. However, whether a defendant's silence is regarded as refusing or as granting permission to give the charge, the result is the same: whether the charge...