Commonwealth v. Davis

• Decision Date: 23 May 1973
• Citation: 452 Pa. 171,305 A.2d 715
• Parties: COMMONWEALTH of Pennsylvania v. Curtis Wilbur DAVIS, Appellant.
• Court: Pennsylvania Supreme Court

305 A.2d 715

452 Pa. 171

COMMONWEALTH of Pennsylvania v. Curtis Wilbur DAVIS, Appellant.

Supreme Court of Pennsylvania.

May 23, 1973.

W. Donald Sparks, Chester, for appellant.

Stephen J. McEwen, Jr., Dist. Atty Ralph B. D'Iorio, Asst. Dist. Atty., Media, for appellee.

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

OPINION OF THE COURT

ROBERTS Justice.

Appellant Curtis Davis, was arrested in December of 1968 and charged with murder, voluntary manslaughter, involuntary manslaughter and robbery. A timely filed pre-trial motion to suppress evidence was denied. Thereafter, on September 25, 1969 appellant was adjudged guilty, by a jury, of murder, voluntary manslaughter and two counts of robbery. Appellant was sentenced, by the jury, to death on the murder conviction, and from ten to twenty years imprisonment, by the court, on the robbery convictions. Post-trial motions in arrest of judgment and for a new trial were denied. This direct appeal followed. We now reverse and remand for a new trial.

Appellant contends that the assistant district attorney committed reversible error by attempting to create an impermissible adverse inference in the minds of the jurors regarding appellant's exercise of his Fifth Amendment rights at trial. ^[1] Appellant alleges that this was accomplished by the prosecutor's persistent references in his closing argument, over objection, to the evidence against the defendant being 'uncontroverted.' Review of the record supports appellant's contention that the prosecution's repeated use of the words 'uncontroverted' and 'uncontroverted fact' created an adverse inference prohibited by the Fifth Amendment to the United States Constitution, ^[2] Article 1, § 9 of the Pennsylvania Constitution, P.S., ^[3] and the Act of May 23, 1887. ^[4]

It is well settled that the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), forbids either comment by the prosecution on the accused's silence at trial or instructions by the court that such is evidence of guilt. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). 'Upon the present record, (we) believe that the prosecutorial comment about the 'uncontradicted' (or 'uncontroverted') nature of the Commonwealth's case runs directly afoul of the Griffin prohibition.' Commonwealth v. Allen, 445 Pa. 156, 159, 281 A.2d 634, 635 (1971) (Roberts, J., dissenting from an opinionless per curiam affirmance, joined by Eagen, J., and O'Brien, J.).

Here, where appellant neither testified at trial nor offered any other defense, the '. . . prosecutore's statement(s) implied that the . . . (defendant himself was) the only (one) who could and should have denied the charges against (him). The jury Might reasonably have inferred from (these) statement(s) that (his) failure to do so was evidence of (his) guilt.' Commonwealth v. Reichard, 211 Pa.Super. 55, 60, 233 A.2d 603, 606 (1967). Such an inference is patently contrary to the mandate of Griffin, supra. ^[5]

As the First Circuit recently stated in United States v. Flannery, 451 F.2d 880, 881--882 (1971):

'. . . (W)e (have) held that for the government to say, in summation to the jury, that certain of its evidence was 'uncontradicted,' when contradiction would have required the defendant to take the stand, drew attention to his failure to do so, and hence was unconstitutional comment. Desmond v. United States, 1 Cir., 1965, 345 F.2d 225. We do not adopt the reasoning of those courts which state, as it seems to us, ingenuously, that to say that the government witnesses' testimony was uncontradicted is simply a statement of historical fact. There are many 'facts' which are benign in themselves. The difficulty is that such reference, when only the defendant could have contradicted, clearly calls to the jury's mind the fact that he failed to testify.' ^[6] (Emphasis added) (Footnotes omitted.)

Accord, United States v. Handman, 447 F.2d 853 (7th Cir. 1971); United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665; Rodriquez-Sandoval v. United States, 409 F.2d 529 (1st Cir. 1969); Doty v. United States, 416 F.2d 887 (10th Cir. 1968), vacated sub nom., Epps v. United States, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542 (1971); United States v. Lyon, 397 F.2d 505 (7th Cir. 1968), cert. denied, sub nom., Lysczyk v. United States, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117; United States v. Parisi, 365 F.2d 601, 607--609 (9th Cir. 1966), vacated sub nom., O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); Peeples v. United States, 341 F.2d 60, 64--65 (5th Cir. 1965), cert. denied, 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280.

On this record, where appellant did not testify and offered no other witnesses or evidence at trial, it would be an act of sophistry to conclude that the remarks of the assistant district attorney could have been taken as anything other than a reference to the fact that appellant, and appellant alone, failed to rebut the evidence against him. The prosecutor's attempt to have the jury equate appellant's guilt with his silence at trial was improper. Such comments, even by implication, are violative of Griffin supra. See also Handman, supra.

Not only were appellant's rights under the United States Constitution violated, but also his rights under Article 1, § 9 of the Pennsylvania Constitution, and the Act of May 23, 1887 ^[7] which implements it. It is well settled that Any comment by the prosecution or the court violates the Act of 1887 if it '. . . draws attention to or focuses on the fact that no one except the defendant can rebut the Commonwealth's case. . . .' Reichard, supra, 211 Pa.Super. at 58, 233 A.2d at 604. It is obvious, on this record, that the prosecutor's comments clearly did that which is prohibited by the Act. 'We think the assistant district attorney went too far, both under the Act of 1887 and under the Fifth Amendment proscription as enunciated in Griffin.' Commonwealth v. Camm, 443 Pa. 253, 268, 277 A.2d 325, 333 (1971).

We hold that the prosecutor's comments were error, and also that they were Harmful error, necessitating the grant of a new trial. On this record, the prosecution's comments cannot be held to be 'harmless beyond a reasonable doubt.'

Our analysis of the gravity and impact of the error is guided by two general precepts. First, '. . . before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See Harrington v. California, 395 U.S. 250, 251, 89 S.Ct. 1726, 1727, 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). This reasonable doubt standard reflects a fundamental belief that once constitutional error has been established, it is far worse to conclude incorrectly that the error was harmless than it is to conclude incorrectly that the error was reversible. Cf. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

The second general precept with which we approach the determination of whether a particular constitutional error was harmless is that the burden is on the Commonwealth to establish that the error was harmless. Chapman v. California, supra, 386 U.S. at 24, 26, 87 S.Ct. at 828, 529; Fontaine v. California, 390 U.S. 593, 596, 88 S.Ct. 1229, 1231, 20 L.Ed.2d 154 (1968). It should be noted that placing the burden on the Commonwealth is in accordance with 'the original common-law harmless-error rule (that) put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.' Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. at 828 (citing 1 Wigmore, Evidence § 21 (3d ed. 1940)). ^[8]

Keeping these precepts in mind, we must determine whether 'there is a reasonable possibility' that the constitutional error 'might have contributed to the conviction.' Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. at 828. If there is such a possibility, the constitutional error is reversible. But if there is no reasonable possibility that the constitutional error might have moved 'the minds of an average jury' ^[9] toward conviction, then it cannot be said that the error was harmless.

Cases subsequent to Chapman have established one exception to the general proposition that if there is a reasonable possibility that the constitutional error might have contributed to the conviction, the error cannot be harmless. That exception is presented by those cases where the 'properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the . . . (constitutional error) is so insignificant by comparison, that it is clear beyond a reasonable doubt that the . . . (constitutional error) was harmless error.' Schneble v. Florida, supra 405 U.S. at 430, 92 S.Ct. at 1059; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

It should be emphasized that a conclusion that the properly admitted evidence is 'so overwhelming,' and the prejudicial effect of the constitutional error is 'so insignificant' by comparison, that it is clear beyond a reasonable doubt that the error is harmless, is not to be arrived at lightly. For the effect of such a conclusion is to affirm a conviction where it is conceded that an error of constitutional proportions contributed in some degree to the conviction. In addition, such a conclusion operates to undermine 'the deterrent effect of such cases as Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6...