Commonwealth v. Wiand
| Decision Date | 26 February 1943 |
| Docket Number | 292,291,296-1942,295,294,293 |
| Citation | 151 Pa.Super. 444,30 A.2d 635 |
| Parties | Commonwealth v. Wiand et al., Appellant |
| Court | Pennsylvania Superior Court |
Argued October 26, 1942.
Appeals from judgments of Q. S. Berks Co., March Sessions 1942, Nos. 72-75, in case of Commonwealth v. William C Wiand, Harry Reaver, Sr. and Harry Reaver, 3rd.
Indictments charging defendants with burglary, larceny and receiving stolen goods. Before Harvey, J., specially presiding.
Verdicts of guilty and judgments and sentences thereon. Defendants each appealed.
Appeals in Nos. 293-296 dismissed and judgments and sentences affirmed; appeals in Nos. 291 and 292 sustained and judgments and sentences set aside and appellant discharged.
Robert Grey Bushong, with him William S. Acuff, for appellants.
David Sharman, Jr., Assistant District Attorney, with him James F. Marx, District Attorney, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Rhodes, Hirt and Kenworthey, JJ.
Appellants, father and son, stand convicted, with Wiand, of stealing chickens on a rather extensive scale. Wiand was arrested November 24, 1941, and taken to the State Police barracks at West Reading where, in the afternoon, he made a confession in which he also implicated appellants. Appellants were arrested late that evening. All three were held in custody overnight and until the afternoon of the next day, November 25th, when they were taken to the district attorney's office in the court house where, in the presence and hearing of appellants, Wiand acknowledged the previous confession and gave additional details likewise implicating appellants. In addition to appellants and Wiand there were present at the meeting in the district attorney's office an assistant district attorney who did the questioning, a stenographer, a county detective and two officers of the state police. The assistant district attorney testified:
At the trial Wiand repudiated both confessions.
The second confession was admitted in evidence and the jury were permitted to infer the guilt of Reaver, Sr., from the statement he made in response to the assistant district attorney's question and the guilt of Reaver, 3rd, from his silence.
We are all of opinion the appeals of Reaver, Sr. are without merit and his sentences should be affirmed. It is not contended the admission in evidence of Wiand's confession was, as to this appellant, inadmissible. In appellants' brief it is said: "It must be conceded that the jury would have had the right to determine whether Reaver, Sr. .... intended to admit his guilt ...." In our opinion his statement that virtually amounted to a voluntary confession. The basis of the complaint is the statement by the court to the jury that they might infer his guilt from his failure to deny the accusations. To a metaphysician, there may be a recognizable distinction between telling the jury they might infer that Reaver, Sr., by his statement, intended to admit his guilt and telling them they might infer his guilt from his failure to deny Wiand's statement. In our opinion the distinction, if any, is without material significance. And the references in the charge to this appellant's failure to deny accusations made the next day when a police officer took him and Wiand to the homes of several of the owners of the stolen chickens were, in view of his confession, harmless. See Com. v. Sydlosky, 305 Pa. 406, 158 A. 154.
But in the opinion of a majority of this court, the appeals of Reaver, 3rd, must be sustained. The rule is: "Ordinarily silence when one is charged with a crime should not be received as evidence of guilt and is not admissible for any purpose unless there is other evidence 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 rule of assenting silence; that to dispose of cases of this kind by a formula would be unnecessary abandonment of the discriminations within our power. The meeting in the district attorney's office conducted by an assistant partook, even to a greater extent than in the Vallone case, of an official hearing or investigation. And, although the assistant thought he gave this appellant, as well as his father, an adequate opportunity to speak, it is by no means entirely clear that his question was assumed by the son to have been also addressed to him. Of the two it seems quite likely the father was the dominant personality. This appellant was, at the time of his arrest, a nineteen-year-old boy of slight build; his father was forty-eight and weighed about two hundred pounds. He may very well have assumed the question was addressed to the father only, and when his father had spoken he may have been reluctant to speak. See Com. v. Vallone, supra, at pp. 438, 439. He was in custody, he was charged, although not yet formally, with implication in a crime, and in this quasi-official hearing he had a perfect right to remain silent. And where the silence of one accused of crime may be equally attributable to explanation other than a repression due to his guilt the evidence should not be admitted. Convictions based upon it would as likely be unjust as just.
Moreover, there was no "other evidence in the case from which guilt may be inferred." The trial judge charged the jury "that (Wiand's confession) is the only item of evidence which impresses the Court as a matter of law sufficient to submit to you the question of the guilty participation of Reaver, 3rd, in this case." In his opinion he expressed the different view, that proof that appellant had known Wiand for some time, had visited his house in Berks County and had previously sold chickens to the firm to which the stolen chickens were sold was sufficient. In our opinion it was not and the statement in the charge was correct. This was not evidence "from which guilt may be inferred." We think the Supreme Court meant that evidence of silence is never sufficient to support a conviction but, to be admissible at all, it must be merely corroboration.
There was no objection to the admissibility of the confessions and only a general exception was taken to the charge. But we consider the error in permitting the jury to infer the guilt of Reaver, 3rd, from his silence at the meeting in the district attorney's office was fundamental. "A man is not to be deprived of his liberty and reputation because of the inadvertence of a trial judge or the carelessness of his counsel in failing to call the attention of the trial court to palpable error which offends against the fundamentals of a fair and impartial trial." Com. v. O'Brien, 312 Pa. 543, 546, 168 A. 244.
Since, in our view, there is no evidence to sustain the conviction of Reaver, 3rd, his point for binding instructions should have been affirmed.
The appeals in Nos. 293, 294, 295 and 296 October Term, 1942, are dismissed and the judgments and sentences involved therein are affirmed. The appeals in Nos. 291 and 292 October Term, 1942, are sustained, the judgments and sentences involved therein are set aside and appellant discharged.
Rhodes, J., concurs in the result as to Reaver, Sr. and dissents as to Reaver, 3rd.
I would concur in the judgment of the court as to Reaver 3d if I understood that it was a necessary result of the conclusion or of the formula applied in Com. v. Vallone, 151 Pa.Super. 431, 30 A.2d 229, from which I dissented, but by which I would be bound as the decision of this court. But in referring to that case the majority opinion now says "We there pointed out what we consider to be some of the dangers of oversimplification of the rule of assenting silence; that to dispose of cases of this kind by a formula would be unnecessary abandonment of the discriminations within our power." Consequently, in following my own judgment, as well as what I believe to be the law, I would sustain the conviction. In his appeals there were two assignments of error: (1) that the court below erred in entering final judgment and imposing sentence, and (2) that the court erred in overruling defendant's demurrer to the evidence against him.
A review of the essential facts as to this defendant applies to Reaver Sr. as well.
Defendants, Harry Reaver Sr. and his son Harry Reaver 3d, together with William C. Wiand, were indicted, tried and convicted of burglary, larceny, and receiving stolen goods committed in stealing chickens belonging to Nicholas Hasselhan and Samuel Shade. On similar charges Wiand and Reaver Sr. were convicted of the same offenses with reference to chickens owned by Irvin Miller and Lester Everhart.
On the day following his arrest, Wiand made a statement which was in the form of answers to questions propounded by the assistant district attorney. The questions and answers were taken stenographically in the presence and hearing of Reaver 3d. His father, Reaver Sr., the county detective of Berks County and an officer of the Pennsylvania Motor Police were also present. In his statement, offered in evidence by the Commonwealth, received without objection, and read to the jury, [1] Wiand said...
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