Commonwealth v. Rasheed
| Decision Date | 27 March 1990 |
| Citation | 572 A.2d 1232,392 Pa.Super. 280 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Abdul RASHEED, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Oct. 23, 1989.
Leonard N. Sosnov, Philadelphia, for appellant.
Frances G. Gerson, Asst. Dist. Atty Philadelphia, for Com., appellee.
Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, OLSZEWSKI DEL SOLE, MONTEMURO, TAMILIA, KELLY and JOHNSON, JJ.
The sole issue for our consideration is whether the trial court committed reversible error in charging the jury in a rape case, over objection by defense counsel, that the defendant did not have to testify and that no unfavorable inference was to be drawn against the defendant for failure to testify in his own behalf. [1]
In the case before us, the appellant, Abdul Rasheed, did not take the witness stand in the trial in which he was charged with rape and possession of an instrument of crime. His counsel did not want the court to charge on his client's right not to incriminate himself, as he feared such instruction would focus the jury's attention on the fact that the appellant did not testify. [2]
An accused in a criminal trial has the right not to testify under the Fifth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In Pennsylvania, a criminal defendant is also protected against testifying against himself by statute, [3] and by the provisions of Article I, Section 9 of the Pennsylvania Constitution. [4]
In the instant case, the defendant did not testify, and the prosecution made no reference to his failure to do so. Notwithstanding defense counsel's request that he not, the court gave an instruction that is generally considered to be beneficial to the defendant that the jury could not draw any adverse inference against the appellant from his failure to testify. Trial counsel, as part of the strategy employed, requested the court not to give the instruction and the request was not complied with. Therein lies the basis of this appeal.
In Commonwealth v. Danzy, 225 Pa.Super. 234, 310 A.2d 291 (1973), the defendant did not request that the court not charge on his right to remain silent and the court charged that he had such a right, and that failure to testify could not be used against the defendant. The appellant contended that it was error to give such a charge in the absence of a request that it be given. We held that the charge could properly be given "so long as the defendant does not object." 225 Pa.Super. 291, 310 A.2d 293. The court also noted that the charge is given for the protection of the defendant.
The Commonwealth, as appellee, argues that under Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) the charge may be properly given even where the defendant objects. Lakeside, supra, held that where the defendant objects to the charge, and the charge is given nevertheless, this does not violate the Fifth and Fourteenth Amendments to the United States Constitution. The court noted, however, at 435 U.S. 340-341, 98 S.Ct. at 1095-1096, 55 L.Ed.2d at 326:
It may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law. We hold only that the giving of such an instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. (Emphasis added.)
All that Lakeside, supra, did was to remove federal constitutional barriers to the giving of the charge in question over counsel's objection; it did not give approval to such a charge when objected to, and expressly left it to the states to decide the question.
Our decision in Danzy, supra, while not directly on point, since the procedural posture was different than in our case, by implication, stated that if the defendant objects to the charge before it is given, the court should not give the charge. This rule is reasonable, as defense counsel and his or her client should be able to decide if they want the jury to focus on the fact that the defendant has not testified. The jury will be aware of this fact, but in some cases the defendant may not want this highlighted.
We believe the rule should be that where a criminal defendant does not testify, and specifically requests the court not to charge that he has the right not to testify and that no adverse inference may be drawn from his failure to take the stand, that it is error for the court to give the instruction concerning a defendant's right to remain silent. [5] This is consistent with Commonwealth v. Danzy, supra, which stated that "[W]hether the charge is given is the defendant's choice." 225 Pa.Super. 236, 310 A.2d 293.
While it was error to give the instruction where the defendant requested that it not be given, we must look at the entire record of the trial at which the error occurred to determine if it is harmless error. In the case before us, there was evidence that the appellant knew Deborah King for a short period of time prior to the incident. Ms. King worked in the Custodian Department at Central High School and when walking to work, she passed the defendant, who at that time was employed as a construction worker, and came to know him. Ms. King lived alone. At 9:30 A.M. on the morning of June 16, 1986, the appellant appeared at her door to return a jug that she had loaned him containing a beverage. She invited him in and gave him a can of beer. The two talked in the kitchen. Finally, Ms. King told the appellant that he would have to leave, as she had to return to work. The appellant made advances toward Ms. King and when she refused to kiss him and again told him to leave, he pulled out a twelve-inch knife and instructed her to go to the bedroom. She was fearful not to comply with his demands and he told her to remove her clothing which she did. She kept asking him why he was doing this to her. She told him that she was bleeding and he said that he had seen blood before. He then had sexual intercourse with her and after he reached for his knife again, the victim submitted to a second act of intercourse. After the acts occurred, the two got dressed and the appellant walked the victim to school.
When Ms. King got to her work area at Central High School, one of her co-workers saw that she was crying and asked her what was wrong and she told her that she had been raped. She also told a non-teaching assistant what happened, who told her to report the incident to the police, which she did. She was then taken to Episcopal Hospital and examined.
A few days after the assault occurred, the appellant called Ms. King and asked her if she called the police on him.
While the court erred in giving the objected to charge, the error was not such that a new trial is required. Where an error is committed in introducing evidence, it may be harmless error in some circumstances. The supreme court stated in Commonwealth v. Story, 476 Pa. 391, 412, 383 A.2d 155, 166 (1978):
... [E]rror may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.
In determining whether error in admitting evidence is harmless, the court must determine if the admissible evidence of guilt is overwhelming. Commonwealth v. Morris, 522 Pa. 533, 564 A.2d 1226 (1989); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983). The reviewing court therefore focuses on whether the error contributed to the verdict, and if so, it is not harmless. By way of analogy, prosecutorial misconduct is grounds for relief only where the conduct prejudices the jury by forming in its mind fixed bias and hostility toward the defendant so that it could not weigh the evidence objectively and render a true verdict. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). Further, the prejudicial effect must be evaluated in the context in which it occurred. Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987).
Our case does not involve evidence erroneously admitted, or conduct by a prosecutor that is improper and therefore, admitted an element of error into a trial, but rather a charge by the court that it was a correct statement of the law, but should not have been given. [6] To determine if the error is harmless, we must discern if the error in the charge, in any way, contributed to the verdict so as to render it less than a true verdict. We perceive that it did not in this case. The appellant has not challenged the sufficiency of the evidence, and indeed it was sufficient under the law to sustain the convictions. Although the charge may have called attention to the fact that the appellant did not testify, no evidence was offered on behalf of the defendant and the charge did not call the jury's attention to anything of which it was not aware. [7]
While we decide that the court erred in charging the jury concerning the lack of an adverse inference from the defendant's failure to testify, when the defendant requested that such charge not be given, we are unable to agree with the Supreme Court of Massachusetts that the giving of the charge is per se reversible error. [8] The better course, in our opinion, is to determine on a case by case basis whether the error committed by the court in giving the charge when the defendant requested that it not be given, constitutes harmless error, as in the...
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