Commonwealth Ex Rel. Staino v. Cavell

217 A.2d 824, 207 Pa. Super. 274, 1966 Pa. Super. LEXIS 1111

• Court: Superior Court of Pennsylvania
• Decided: March 24, 1966
• Docket: Appeal, 837
• Status: Published

Opinions

Opinion

Per Curiam,

The six judges who heard the argument of this appeal being equally divided in opinion, the order of the court below is affirmed.

Opinion by

Ervin, P. J.,

Supporting the Affirmance :

This is an appeal from an order of the court below dismissing appellant’s petition for a writ of habeas corpus. It is the second time the case has been before us. In Com. v. Staino, 204 Pa. Superior Ct. 319, 204 A. 2d 664 (allocatur refused by the Supreme Court, 204 Pa. ), we affirmed the conviction of this defendant on a charge of burglary.

At the trial the tacit admission of the defendant, Staino, to a signed confession of a confederate, Robert Poulson, implicating the defendant, was admitted into evidence after five police officers testified that the defendant remained silent after the confession was read to him. This evidence was received under the well established Pennsylvania doctrine of tacit admissions: Com. ex rel. Stevens v. Myers, 398 Pa. 23, 156 A. 2d 527; Com. v. Vallone, 347 Pa. 419, 32 A. 2d 889; Com. v. Ford, 193 Pa. Superior Ct. 588, 165 A. 2d 113; Com. v. Gomino, 200 Pa. Superior Ct. 160, 188 A. 2d 784.

The appellant now asks us to reverse this principle of law. It would be sufficient for us to say that we could not do so. Any such request must be made to the Supreme Court of this State. We are obliged to follow this principle of law, as was the court below.

There was ample evidence in this case, aside from the tacit admission of the defendant, that he participated in the burglary of the home of John B. Rich in Pottsville on August 7, 1959. Richard Blaney took the stand and testified that he had a conversation with the defendant at the Colony Motel in Atlantic City in the middle of August 1959 in which Staino admitted that he had taken part in this burglary.¹ Blaney was ■subjected to a severe cross-examination but held his ground.

Additional supporting evidence was given by Alfred Ronconi and Jerry Joseph Gruareini. Roneoni, manager of an automobile repair shop in Philadelphia, had known the defendant Staino, having done repair work on his automobile. He testified that during January or February 1960 Staino brought a “shirt box” containing money to his shop and told him “he would like to. have the contents exchanged into hundred dollar bills.” They went to a nearby bank together. While Staino waited outside, Eonconi entered the bank and presented the box to a teller, Guarcini, with the request that he “exchange the money” in the box. When the teller discovered that the box contained more than $10,000 he told Eonconi that he would exchange only $10,000 of the money in the box for one-hundred dollar bills because “bank transactions in excess of that require a signature.” Eonconi directed the teller to exchange only $10,000 of the money and the teller did so, handing Eonconi $10,000 in hundred dollar bills and the box containing the unexchanged money. Eonconi then left the bank and delivered the $10,000 and the box to Staino, who was waiting in his automobile. Guarcini, the teller of the bank, took the stand and confirmed this transaction.

There was also testimony that Staino purchased an automobile on October 31, 1959 for $3,300 and paid the purchase price with thirty-three one-hundred dollar bills.

When two investigating police officers examined Mr. Eich’s home following the discovery of the burglary, they found that nothing had been disturbed in the upper floors of the house except for two beds from which two pillow cases had been removed. This testimony strikingly, supported the recital in the Poulson confession that “we got the money in a carryall bag and two pillowcases. . . .”

To grant a new trial in this case would be a vaste of precious judicial time. . Our courts have been deluged by the flood of cases arising out of recent decisions of the Supreme Court of the United States great ly extending the function of the writ of habeas corpus. Crime’has greatly increased as a result of judicial leniency.

1 For a complete recitation of this testimony, see the footnote at the bottom of page 326 in Com. v. Staino, 204 Pa. Superior Ct. 319, 204 A. 2d 664.