Commonwealth v. Vallone.

CourtSuperior Court of Pennsylvania
Writing for the CourtKENWORTHEY, Judge.
Citation30 A.2d 229,151 Pa.Super. 431
Decision Date28 January 1943
PartiesCOMMONWEALTH v. VALLONE.

151 Pa.Super. 431
30 A.2d 229

COMMONWEALTH
v.
VALLONE.

Superior Court of Pennsylvania.

Jan. 28, 1943.


Appeal No. 201, October term, 1942, from judgment and sentence of Courts of Oyer and Terminer and Quarter Sessions, Northampton County, No. 20, December sessions, 1941; Frank P. McCluskey, Judge.

Joseph Vallone was convicted of knowingly transporting a female for the purpose of prostitution in violation of 18 P.S. § 4517, and he appeals.

Judgment reversed with a venire facias de novo.

RHODES, J., dissenting.

30 A.2d 230

Russell C. Mauch and Milton J. Goodman, both of Bethlehem, for appellant.

Henry K. VanSickle, Dist. Atty., of Easton, and Irving W. Coleman, Asst. Dist. Atty., of Northampton, for appellee.

Before KELLER, P. J., and CUNNINGHAM, BALDRIGE, STADTFELD, RHODES, HIRT, and KENWORTHEY, JJ.

KENWORTHEY, Judge.

Appellant was convicted of knowingly transporting a female for the purpose of prostitution. Act of June 24, 1939, P.L. 872, § 517, 18 P.S. § 4517. He concedes the evidence was sufficient to support the verdict. He seeks a new trial because of alleged errors in the admission of certain evidence and in the court's charge to the jury.

The commonwealth's evidence, with the exception of that which is alleged to have been inadmissible, consisted exclusively of the testimony of the prostitute. She testified that some time in April, 1941, appellant drove her in his car from Allentown to Scranton where he secured employment for her in a bawdy-house for which services he received a fee. It was conceded at the trial that the girl at the time was a confirmed prostitute and the charge that appellant had induced, enticed or compelled her to become a prostitute was dropped.

I. The court permitted the commonwealth to prove that some time after he was arrested, appellant was brought from the jail to the district attorney's office where in his presence and the presence of a state policeman, a local policeman, a county detective, and the district attorney's secretary who recorded the proceedings, the girl made a complete statement which substantially coincided with the testimony she gave at the trial. In the language of the assistant district attorney who tried the case this was offered “to prove by Mr. Cahalan's [the state policeman's] testimony under what circumstances the conversation was held, the circumstances surrounding it and the admissions made during the conversation by defendant;” with commendable candor, he stated at the oral argument in this court that this meeting was staged for the purpose of procuring evidence against appellant.

At the meeting, appellant made no “admissions” of any kind and all the questions, with the insignificant exception that at the beginning of the proceedings appellant was asked whether he knew the girl, were addressed to her.

This proof was allowed because appellant sat through the meeting in silence, on the theory that the jury might infer, from his silence, that he assented to the truth of the statements.

The doctrine of assenting silence has its roots in the postulate that: “The crystallization of the experience of men shows it to be contrary to their nature and habits to permit statements tending to connect them with actions for which they may suffer punishment to be made in their presence without objection or denial by them unless they are repressed by the fact that the statement is true.” Wharton's Criminal Evidence, 11th Ed., § 656, p. 1092. (Italics supplied). This principle, in the original English tradition, was applied as a working rule that whatever was said in a party's presence was receivable against him as an admission because presumably assented to. Wigmore, Evidence, 10th Ed., § 1071, p. 70. But it is to be observed that in this simple and comprehensive form the rule ignores some inherent qualifications

30 A.2d 231

of the principle. There are multitudes of circumstances under which an accused person may be “repressed” other than “by the fact that the statement is true.” The rule, to be sound in application to particular cases, must be critically examined in the light of the peculiar circumstances of each case by judges who assume somewhat the role of clinical psychologists. And that the courts have long recognized their responsibility is manifest from the early and numerous deliverances tending to dislodge or qualify it. Mr. Justice Duncan in Moore v. Smith, 14 Serg. & R. 388, 393, said: “Two men, at this rate, might talk a third out of his whole estate, with a witness! Nothing can be more dangerous than this kind of evidence; it should always be received with caution, ***.” In Vail v. Strong, 10 Vt. 457, 464, it was said: “He has the right to be silent, unless there be good occasion for speaking. We cannot admit that he is bound to disclose his private affairs, at the suggestion of idle curiosity, whenever such curiosity is indulged, at the hazard of being concluded by every suggestion, which may be suffered to pass unanswered. The true rule we understand to be this;-evidence of this character may be permitted to go to the jury, whenever the occasion, upon which the declaration is made in the presence of the party, and the attendant circumstances, call for serious admission or denial on his part; but the strength of the evidence depends altogether upon the force of the circumstances and the motives, which must impel him to an explicit denial, if the statement be untrue. But if no good reason exist to call for disclosure, and the party decline to enter into useless discussion, or answer idle curiosity, no legitimate inference to his prejudice can be drawn from his silence.” And in Mattocks v. Lyman, 16 Vt. 113, 119: “With some men, perhaps, silence would be some ground of inferring assent, and with others none at all. The testimony then would depend upon the character and habits of the party,-which would lead to the direct trial of the parties, instead of the case.” And in State v. Hogan, Mo.Sup., 252 S.W. 387, 388, it was pointed out that according to Matthew 27:12-14, when Jesus was brought before Pilate, the following transpired: “And when he was accused of the chief priests and elders, he answered nothing. *** Then said Pilate unto him, Hearest thou not how many things they witness against thee? *** And he answered them never a word; insomuch that the governor marveled greatly.”

Because an attempt to analyze them all would unduly prolong this opinion, suffice it to say our own decisions reveal two characteristics, (1) that our courts have never hesitated to refuse to apply the rule whenever they felt an accused person's silence was explainable, and (2) they have carefully avoided broad generalities as to its application except in the clearest categories. See Com. v. Karmendi, 325 Pa. 63, 67, 188 A. 752.

It has been held, for example, that the rule has no application where tile accusing statements were made in the course of a judicial proceeding, Com. v. Zorambo, 205 Pa. 109, 54 A. 716; Com. v. Lisowski, 274 Pa. 222, 117 A. 794; where the accused made frequent denials, both previous to and subsequent to the particular accusations sought to be introduced, Com. v. Mazarella, 279 Pa. 465, 124 A. 163; and where, in a speakeasy, defendant made no denial when he was introduced as one of the “bosses,” Com. v. Coyne, 115 Pa. Super. 23, 175 A. 291. In a number of jurisdictions where, as here, an accused is under arrest, the courts have adopted a general rule that he “is under no duty to speak and that his silence should not be counted as giving assent.” 1 But here again our courts have avoided a rigid rule. “Ordinarily, silence, when one is charged with a crime, should not be received as evidence of guilt ***” (italics supplied), Chief Justice Kephart in Com. v. Karmendi, 328 Pa. 321, 335, 195 A. 62, 68. And see Com. v. Smith, 105 Pa.Super. 497, 161 A. 418. And in the following cases, in all of which defendant was under arrest and in custody, the rule was applied: Com. v. De Palma, 268 Pa. 25, 110 A. 756, where defendant opened the conversation with the deceased's wife by asking what was the matter, whereupon she accused him of murdering her husband; Com. v. Karmendi, supra, where

30 A.2d 232

defendant was accused of murdering her own child; Com. v. Weigand, 134 Pa.Super. 603, 5 A.2d 385, where defendant, charged with committing an abortion, was taken by a police officer to the home of the girl's mother who immediately accused him. 2

The aspects of the present case which, in our opinion, bear on the question whether appellant's silence...

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6 practice notes
  • Commonwealth v. Vallone.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 30 Junio 1943
    ...transporting a female for the purpose of prostitution and the conviction was reversed, with a new trial by the Superior Court, 151 Pa.Super. 431, 30 A.2d 229, and an appeal was allowed to the Commonwealth. Order of Superior Court reversed and judgment and sentence of the Courts of Oyer and ......
  • United States v. Sorrentino, No. 11676 C. D.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 26 Junio 1948
    ...357, 360; Lawrence v. United States, supra; Commonwealth v. Gatto, 1943, 154 Pa. Super. 25, 34 A.2d 840; Commonwealth v. Vallone, 1943, 151 Pa.Super. 431, 441, 30 A. 2d 229; reversed on other grounds 347 Pa. 419, 32 A.2d 889; United States v. Krulewitch, 2 Cir., 1944, 145 F.2d 76, 156 A.L.R......
  • Commonwealth v. Wiand, 291
    • United States
    • Superior Court of Pennsylvania
    • 26 Febrero 1943
    ...in the case from which guilt may be inferred." Com. v. Karmendi, 328 Pa. 321, 335, 195 A. 62. Much that we said in Com. v. Vallone, 151 Pa.Super. 431, pp. 434, 435, 30 A.2d 229, is applicable here. We there pointed out what we consider to be some of the dangers of oversimplification of the ......
  • Commonwealth v. Wiand Appeal Of Reaver.
    • United States
    • Superior Court of Pennsylvania
    • 2 Marzo 1943
    ...from which guilt may be inferred.” Com. v. Karmendi, 328 Pa. 321, 335, 195 A. 62, 68. Much that we said in Com. v. Vallone, Pa.Super., 30 A.2d 229, is applicable here. We there pointed out what we consider to be some of the dangers of oversimplification of the rule of assenting silence; tha......
  • Request a trial to view additional results
6 cases
  • Commonwealth v. Vallone.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 30 Junio 1943
    ...transporting a female for the purpose of prostitution and the conviction was reversed, with a new trial by the Superior Court, 151 Pa.Super. 431, 30 A.2d 229, and an appeal was allowed to the Commonwealth. Order of Superior Court reversed and judgment and sentence of the Courts of Oyer and ......
  • United States v. Sorrentino, No. 11676 C. D.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 26 Junio 1948
    ...357, 360; Lawrence v. United States, supra; Commonwealth v. Gatto, 1943, 154 Pa. Super. 25, 34 A.2d 840; Commonwealth v. Vallone, 1943, 151 Pa.Super. 431, 441, 30 A. 2d 229; reversed on other grounds 347 Pa. 419, 32 A.2d 889; United States v. Krulewitch, 2 Cir., 1944, 145 F.2d 76, 156 A.L.R......
  • Commonwealth v. Wiand, 291
    • United States
    • Superior Court of Pennsylvania
    • 26 Febrero 1943
    ...in the case from which guilt may be inferred." Com. v. Karmendi, 328 Pa. 321, 335, 195 A. 62. Much that we said in Com. v. Vallone, 151 Pa.Super. 431, pp. 434, 435, 30 A.2d 229, is applicable here. We there pointed out what we consider to be some of the dangers of oversimplification of the ......
  • Commonwealth v. Wiand Appeal Of Reaver.
    • United States
    • Superior Court of Pennsylvania
    • 2 Marzo 1943
    ...from which guilt may be inferred.” Com. v. Karmendi, 328 Pa. 321, 335, 195 A. 62, 68. Much that we said in Com. v. Vallone, Pa.Super., 30 A.2d 229, is applicable here. We there pointed out what we consider to be some of the dangers of oversimplification of the rule of assenting silence; tha......
  • Request a trial to view additional results

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