Commonwealth v. Burkett

235 A.2d 161, 211 Pa. Super. 299, 1967 Pa. Super. LEXIS 773

• Court: Superior Court of Pennsylvania
• Decided: November 16, 1967
• Docket: Appeals, 774, 775, and 776
• Status: Published

Opinions

Opinion by

Jacobs, J.,

After waiving a jury trial, appellant was tried on October 31, 1966, before the Honorable Gregory G. Lagaicos and found guilty of rape, aggravated robbery, aggravated assault and battery, and conspiracy. He appeals from the judgment of sentence.

Appellant’s sole argument before this court is that the lower court erred in permitting the assistant district attorney to cross-examine him regarding his statement to the police when the statement was inadmissible for failure to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The inadmissibility is apparently admitted by the Commonwealth which withdrew the statement, after objection, when it was offered in its case in chief.

On direct examination the twenty-one year old appellant testified that the prosecutrix had an accident with her automobile and asked for help. He said that he volunteered and at her request drove her automobile away from the scene of the accident. He testified that while in the car she told him that her boy friend had beaten her, that she liked boys, and would give him money and other gifts. Appellant further testified on direct examination that the prosecutrix then offered herself to him sexually and that he got into the back seat of the car with her but left without having intercourse because he was repelled by her body odor. On cross-examination appellant was asked, over objection, if he had told police the same story that he had told the court on direct examination. Appellant admitted that he had not given the same story to the police.

The effect of this question and answer was to demonstrate to the fact finder, in this case the judge, that the statement appellant had given to the police was at variance with his oral testimony. Since the variance was not limited by the question or the answer, the judge might well have concluded that appellant’s statement to the police admitted some or all of the essential elements of the crimes charged. It is obvious that the statement itself, which we have never seen, could not have been admitted into evidence for that purpose as part of the Commonwealth’s case or on rebuttal. The effect of this question and answer was to do indirectly what the Commonwealth could not do directly, i.e., to force the appellant to incriminate himself.¹ “The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.” Miranda v. Arizona, 384 U.S. at 476, 16 L. Ed. 2d at 725. To permit this question and answer was reversible error.

Appellee argues that this case is controlled by our recent decision in Commonwealth v. Reginelli, 208 Pa. Superior Ct. 344, 222 A. 2d 605 (1966). We disagree. In Reginelli we followed by analogy Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954), in holding that the prosecution may make use of an unlawfully obtained statement to impeach a defendant’s credibility after he opens the door on direct examination by making assertions which go beyond the denial of complicity in the crime charged.² Walder v. United States, supra, held that where a defendant goes beyond a mere denial of complicity in the crimes with which he is charged the prosecution may introduce unlawfully seized evidence in rebuttal for impeachment purposes.

In Commonwealth v. Wright, 415 Pa. 55, 202 A. 2d 79 (1964), in analyzing Walder, Justice Eagen speaking for our Supreme Court said:

“To make such evidence available for impeachment purposes and thereby constitute a waiver by the defendant of his constitutional protection against its use, three conditions are essential: (1) The defendant must elect to take the stand; (2) His testimony which conflicts with the illegally secured evidence must do more than deny the elements of the crime for which he is being tried; (3) The inadmissible evidence should be received only to the extent that it does not admit the very acts which are essential elements of the crime charged: Walder v. United States, supra.” 415 Pa. at 60, 202 A. 2d at 81.

In Reginelli we held that the conditions required to make such evidence available had been met but they were not present here.³ Nowhere in the record does it reveal what testimony of the appellant the district attorney intended to impeach. It is essential that the inconsistency be pinpointed in order to determine if the alleged perjury does more than deny the elements of the crime and meets the second condition. Nor has the third condition been met, for, as we pointed out above, the question and answer were received without limitation and might well have been interpreted as an admission of the essential elements of the crimes charged.

Appellant’s direct testimony lacked the type of sweeping assertions or broad statements found in Walder and ReginelU. His direct examination consisted of a denial of the elements of the crimes with which he was charged, his denial taking the form of his version of what happened on the night in question. The question and answer should have been excluded under the general rule set forth in Walder, that “the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief.” 347 U.S. at 65, 98 L. Ed. at 507. Neither Walder nor ReginelU governs the factual situation of this case.

Judgment reversed and new trial granted.

Wright and Watkins, JJ., would affirm on the opinion of Judge Lagakos.

1 On direct examination the appellant never referred to his statement and did nothing to justify cross-examination in regard to the statement. Under such circumstances merely taking the stand cannot be considered a waiver of his constitutional protection against self-incrimination. See Agnello v. United States, 269 U.S. 20, 70 L. Ed. 145, 46 S. Ct. 4 (1925).

2 For a similar application of the rule of Walder to an inadmissible statement see Tate v. United States, 283 F. 2d 377 (D.C. Cir. 1960).

3 We need not presume to decide whether Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), overrules Walder v. United States, 347 U.S. 62, 98 L. Ed. 503, 74 S. Ct. 354 (1954), as argued by the appellant.