Commonwealth v. Danzy

Superior Court of Pennsylvania

Commonwealth v. Danzy

310 A.2d 291, 225 Pa. Super. 234, 1973 Pa. Super. LEXIS 1512

CourtSuperior Court of Pennsylvania

DecidedSeptember 19, 1973

DocketAppeals, 859 and 860

StatusPublished

Cited by17 cases

This text of 310 A.2d 291 (Commonwealth v. Danzy) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Danzy, 310 A.2d 291, 225 Pa. Super. 234, 1973 Pa. Super. LEXIS 1512 (Pa. Ct. App. 1973).

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Opinion

Opinion by

Spaeth, J.,

This is an appeal from a conviction, after a jury trial, of burglary, aggravated robbery, assault and battery, and aggravated assault and battery. The issue is with respect to the following part of the charge: “A person who comes before the Court has a constitutional right not to give evidence of any kind. They have a constitutional right not to give evidence. You, the jury, have a duty not to hold that against them in any way. A person’s right not to give evidence imposes upon you the duty not to draw any inference of any kind whatsoever against a person who is charged before you, because they do not give evidence. ... You must not under any circumstances consider the fact that a defendant does not give evidence in a case. It is your duty under the law.” Appellant asserts that in the absence of any request by him it was error to give this charge.

*236 Rule 1119 of the Rules of Criminal Procedure provides: “(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. . .

Thus the time for a defendant to decide whether he wants a charge regarding his decision not to testify is before the jury retires. The charge is designed for the protection of the defendant in accordance with the Act of May 23, 1887, P. L. 158, §10, 19 P.S. §631; and so long as the defendant does not object it is not error to give the charge, if, as in the present case, the charge is fairly stated. Commonwealth v. Thomas, 429 Pa. 227, 239 A. 2d 354 (1968), Commonwealth v. Schuster, 158 Pa. Superior Ct. 164, 44 A. 2d 303 (1945).

We note appellant’s argument that some other jurisdictions have chosen a procedure that forbids the charge unless specifically requested by the defendant. However, whether a defendant’s silence is regarded as refusing or as granting permission to give the charge, the result is the same: whether the charge is given is the defendant’s choice. We shall not invalidate a conviction because a defendant decides after the verdict that he made the wrong choice. See Commonwealth v. Marlin, 452 Pa. 380, 305 A. 2d 14 (1973); Commonwealth v. Razmus, 210 Pa. 609, 60 A. 264 (1905).

The judgment of sentence of the court below is affirmed.

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Opinion by

Spaeth, J.,

This is an appeal from a conviction, after a jury trial, of burglary, aggravated robbery, assault and battery, and aggravated assault and battery. The issue is with respect to the following part of the charge: “A person who comes before the Court has a constitutional right not to give evidence of any kind. They have a constitutional right not to give evidence. You, the jury, have a duty not to hold that against them in any way. A person’s right not to give evidence imposes upon you the duty not to draw any inference of any kind whatsoever against a person who is charged before you, because they do not give evidence. ... You must not under any circumstances consider the fact that a defendant does not give evidence in a case. It is your duty under the law.” Appellant asserts that in the absence of any request by him it was error to give this charge.

*236 Rule 1119 of the Rules of Criminal Procedure provides: “(b) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. . .

Thus the time for a defendant to decide whether he wants a charge regarding his decision not to testify is before the jury retires. The charge is designed for the protection of the defendant in accordance with the Act of May 23, 1887, P. L. 158, §10, 19 P.S. §631; and so long as the defendant does not object it is not error to give the charge, if, as in the present case, the charge is fairly stated. Commonwealth v. Thomas, 429 Pa. 227, 239 A. 2d 354 (1968), Commonwealth v. Schuster, 158 Pa. Superior Ct. 164, 44 A. 2d 303 (1945).

We note appellant’s argument that some other jurisdictions have chosen a procedure that forbids the charge unless specifically requested by the defendant. However, whether a defendant’s silence is regarded as refusing or as granting permission to give the charge, the result is the same: whether the charge is given is the defendant’s choice. We shall not invalidate a conviction because a defendant decides after the verdict that he made the wrong choice. See Commonwealth v. Marlin, 452 Pa. 380, 305 A. 2d 14 (1973); Commonwealth v. Razmus, 210 Pa. 609, 60 A. 264 (1905).

The judgment of sentence of the court below is affirmed.

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310 A.2d 291, 225 Pa. Super. 234, 1973 Pa. Super. LEXIS 1512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-danzy-pasuperct-1973.

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