Commonwealth v. Miller

• Decision Date: 15 April 1965
• Citation: Commonwealth v. Miller, 205 Pa.Super. 297, 208 A.2d 867 (Pa. Super. Ct. 1965)
• Parties: COMMONWEALTH of Pennsylvania v. Michael MILLER, Appellant.
• Court: Pennsylvania Superior Court

208 A.2d 867

205 Pa.Super. 297

COMMONWEALTH of Pennsylvania v. Michael MILLER, Appellant.

Superior Court of Pennsylvania.

April 15, 1965.

John P. Yatsko, Fitzgerald & Yatsko Norristown, for appellant.

Richard S. Lowe, Dist. Atty., Norristown, for appellee.

Before ERVIN P. J., and WRIGHT, WATKINS, MONTOGOMERY, JACOBS and HOFFMAN JJ.

WATKINS Judge.

In this appeal, the defendant, Michael Miller, was tried and convicted by a jury in the Court of Oyer and Terminer of Montgomery County of burglary, robbery and conspiracy.His post trial motions for a new trial and, in the alternative for arrest of judgment, were denied.He was sentenced to a fine and imprisonment from seven to twenty years.

The appellant's contention concerning the admission of the confession of a co-conspirator, not on trial, being reversible error is without merit.As the court below explained the situation:

'In the instant case, however, the trial court was faced with a somewhat novel situation.On direct examination, Knisely testified fully to his and the defendant's participation in the three armed robberies.On cross-examination, defendant in an attempt to totally impeach and discredit Knisely's testimony offered into evidence exhibit D-1, a statement written by Knisely at defendant's request, while both were in the county prison prior to Knisely's plea and defendant's trial.Said statement repudiated his confession and declared that Miller was completely innocent of these crimes.On redirect examination Knisely's confession as offered by the district attorney was then admitted into evidence by the trial court, but not for its verity as such, or as primary evidence for the Commonwealth, but rather as rubuttal evidence to the exonerating statement offered by defendant.'

The rule is well stated in Commonwealth v. Martin,124 Pa.Super. 293, at page 302, 188 A. 407, at page 410(1936):

'When the testimony of a witness has been impeached by proof of a conflicting statement, or by a suggestion that his testimony is a recent fabrication, the party offering the witness may be permitted to support his credibility by proof of prior statements consonant with his testimony.The sole purpose of such evidence is to sustain the credibility of the witness; the prior statement cannot be received as direct or corroborative evidence of the facts stated upon the stand by the witness. * * *'

And the trial judge carefully charged the jury as follows:

'Now, I admitted the written statement which he gave to the police not as primary evidence for the Commonwealth, but to rebut the evidence, if you want to consider it, concerning the statement given to Mr. Miller, which Mr. Miller produced.What you will consider is the evidence as it came from the lips of Mr. Knisely implicating Miller, and you can believe it or you can disbelieve it.You can find it credible or you can find it not worthy of credibility.'

The serious complaint in this appeal involves the alleged comment on defendant's failure to testify and the instruction of the court in answer to a question posed by the jury concerning the calling of witnesses.

In the district attorney's closing address to the jury he is alleged to have said: 'Leonard Bleecher was the only witness on behalf of the defendant; the defendant himself did not take the witness stand.'Counsel for the defendant interrupted the address and asked for the withdrawal of a juror.The motion was denied.The defendant contends that this comment by the district attorney, if made, falls within the proscription of Act of May 23, 1887, P.L. 158, § 10,19 P.S. § 631, which reads as follows:

'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.'

In this casewe are not deciding that this comment, if made, standing alone, would constitute reversible fundamental error.But it must be taken into consideration, in this case, because of what happened in the latter part of the trial.It is true that ordinarily the district attorney has no justifiable excuse for calling the jury's attention to the matter of a defendant's election not to testify.In Com. v. Wilcox,316 Pa. 129, 173 A. 653(1934), the Supreme Court said: 'If the remark is of such a character as to violate the accused's constitutional rights, such as a reference to his failure to take the witness stand, it cannot be cured by the trial judge and a new trial must be ordered; * * *'.However 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.Peters v. Shear,351 Pa. 521, 525, 41 A.2d 556(1945);Com. v. Kloiber,378 Pa. 412, 417, 106 A.2d 820(1954);Com. v. Ross,403 Pa. 358, 371, 169 A.2d 780(1961).See: Laub Penna. Trial Guide§ 185.

The trial judge charged the jury carefully and fully on the question of the defendant's failure to take the stand and the district attorney has no recollection of having made the remarks concerning which the defendant makes complaint.There is no transcript of the closing remarks.

However after the jury was out for about five hours they submitted the following question to the trial judge in writing: 'Does a juror have the right to take into consideration the fact that the defense made no attempt to defend the accused by witnesses?'This clearly shows that in the deliberations of the jury the question of the failure of the defendant to call witnesses was discussed.At this stage of the trial and in order to...