Commonwealth v. Wiand Appeal Of Reaver.

• Court: Superior Court of Pennsylvania
• Writing for the Court: KENWORTHEY, Judge.
• Citation: 30 A.2d 635,151 Pa.Super. 444
• Decision Date: 02 March 1943
• Parties: COMMONWEALTH v. WIAND ET AL. (TWO CASES). APPEAL OF REAVER.

151 Pa.Super. 444
30 A.2d 635

COMMONWEALTH
v.
WIAND ET AL. (TWO CASES).
APPEAL OF REAVER.

Superior Court of Pennsylvania.

March 2, 1943.

Appeals Nos. 291-296, October term, 1942, from judgments and sentences of Court of Quarter Sessions of Berks County as of Nos. 72-75, March Sessions, 1942; Ernest Harvey, Specially Presiding Judge.

William C. Wiand, Harry Reaver, Sr., and Harry Reaver, 3d, were convicted of stealing chickens and Harry Reaver, 3d, and Harry Reaver, Sr., appeal.

Judgment affirmed as to Harry Reaver, Sr., and judgment set aside as to Harry Reaver, 3d, and such defendant discharged.

RHODES, J., dissenting in part.

30 A.2d 636

Robert Grey Bushong, of Reading, and William S. Acuff, of Ambler, for appellants.

David Sharman, Jr., Asst. Dist. Atty., and James F. Marx, Dist. Atty., both of Reading, for appellee.

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

KENWORTHEY, Judge.

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: “After I had finished questioning Wiand I turned to Harry Reaver, Sr.,-of course I addressed the question to both of them, they were sitting there together, Reaver, Sr. and Jr. -I asked them whether they had anything they wished to say, and Harry Reaver, Sr., answered, he said, ‘I haven't anything to say. He said everything.’ That is all he said at that time.”

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

30 A.2d 637

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 this statement that “I haven't anything to say. He [Wiand] said everything” 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, 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; 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. 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 explanations 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, 245.

Since, in our view, there is no...