Commonwealth v. Edwards

637 A.2d 259, 535 Pa. 575, 1993 Pa. LEXIS 329

• Court: Supreme Court of Pennsylvania
• Decided: December 30, 1993
• Docket: 56 W.D. Appeal Docket 1992
• Status: Published

Opinions

OPINION OF THE COURT

PAPADAKOS, Justice.

Appellant was convicted of third degree murder, following a jury trial, for the death of his wife. The overwhelming evidence presented by the Commonwealth included the testimony of his daughter, Mary Brown, to the effect that on Thanksgiving Day 1989 her parents had a host of arguments. Finally, Mary Brown and her mother, victim Mary Edwards, left the house with Appellant’s words, “I will take care of you when you get home,” ringing in their ears. Mary Edwards dropped her daughter off at the latter’s home. The next day, Mary Edwards was found dead on her kitchen floor with three bullets in her body. Appellant was found in an alcohol induced sleep reclining in his easy chair. In addition to his dead wife, there were found a .38 snub nose revolver on the table next to him, a near empty bottle of vodka on the dining room table, and a German shepard dog in the yard. Ballistics determined that five shots were fired from the gun. Mary Edwards was hit by three of the cartridges, while the remaining two were on the kitchen floor. No fingerprints were on the gun. Appellant’s socks and shoes were bloodied with blood of the decedent’s blood type. No evidence of a break-in was observed.

Appellant was charged with murder in the first degree. No defense was presented. The Commonwealth presented its findings to the jury and closed. Defense counsel requested the court not to instruct the jury on the principle that “no adverse inference” could be drawn from Appellant’s failure to take the stand. The court denied the request and so instructed the jury. Additionally, the instruction included instructions on first, second and third degree murder as well as voluntary manslaughter. The jury found Appellant guilty of third degree murder.

Appellant argues that it was error for the trial court to give the no-adverse-inference charge when the defense expressly requested that it be omitted.¹ The Commonwealth argues that the charge resulted in, at most, harmless error.

In Commonwealth v. Reginald Lewis, 528 Pa. 440, 598 A,2d 975 (1991), this Court held that it is clearly reversible error to refuse to give the jury a “no adverse inference” charge. The instant appeal presents the other side of the coin, i.e., what happens where the defendant does not want such a charge to be given. This possibility was clearly acknowledged by the majority in Reginald Lewis when it was noted that “if defendant and his or her counsel determine that the fundamental right to remain silent is best served by not drawing attention to defendant’s silence, the derivative right (i.e., the ‘no defense inference’ instruction) may be validly waived.” Id. at 455, fn. 14, 598 A.2d at 983, fn. 13. Thus, since this Court in dicta acknowledged that the defendant clearly had the right to refuse this charge, the trial judge’s decision nonetheless to instruct the jury was apparently erroneous. The Commonwealth argues that even if the trial court committed error, such error was harmless beyond a reasonable doubt. The Superior Court agreed with the Commonwealth’s argument and Appellant comes to us.

In Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), the U.S. Supreme Court held that giving a “no adverse inference” instruction over and against a defendant’s objection does not violate a defendant’s Fifth Amendment privilege against self-incrimination. The Lakeside court, nevertheless, concluded that it “may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection. And each state is, of course, free to forbid its trial judges from doing so as a matter of state law.” 435 U.S. at 340, 98 S.Ct. at 1095, 55 L.Ed.2d at 326. A sizable number of states have held as a matter of state law (as we suggested in dicta in Reginald Lewis, supra), that giving this instruction over a defendant’s objection is per se erroneous. See, Russell v. State, 398 S.W.2d 213, 240 Ark. 97 (1966); People v. Anderson, 505 N.E.2d 1303, 153 Ill.App.3d 542, 106 Ill.Dee. 512, app. den., 515 N.E.2d 113, 116 Ill.2d 562, 113 Ill.Dec. 304 (1987); Priest v. State, 386 N.E.2d 686, 270 Ind. 449 (1979); State v. Kimball, 176 N.W.2d 864 (Iowa 1970); Hardaway v. State, 562 A.2d 1234, 317 Md. 160 (1989); Commonwealth v. Buiel, 463 N.E.2d 1172, 391 Mass. 744 (1984); People v. Hampton, 231 N.W.2d 654, 394 Mich. 437 (1975); State v. Thompson, 430 N.W.2d 151 (Minn.1988). See also, statutes or court rules to the same effect in three states, to-wit, Conn. Gen.Stat. §§ 54-84(b); Mo. Rule Crim.Proc. 27.05(b); N.Y.Crim.Proc. § 300.10. And see, People v. Molano, 253 Cal.App.2d 841, 61 Cal.Rptr. 821 (1967).

The rationale for this rule was best put forth in Green, The Failure to Testify Instruction, 14 Willamette L.Rev. 43, 51 (1977):

The most sensible of the various judicial approaches is to allow the defendant to decide whether the instruction should be given in any particular case. The desirability of the instruction is a matter of trial strategy, and will therefore vary from case to case. The purpose of the instruction is to prevent the jury from considering the defendant’s silence as evidence of guilt, and the defendant himself will normally be in the best position to decide whether or not the giving of the instruction will serve this end.

Normally, of course, a defendant’s attorney would make this decision and this is how it should be. As the U.S. Supreme Court said in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966):

In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.

384 U.S. at 874-875, 86 S.Ct. at 1851, 16 L.Ed.2d at 986.

As the Supreme Judicial Court of Massachusetts held in Commonwealth v. Buiel, supra, we have no hesitancy in announcing for the future that it will be per se reversible error if a judge instructs the jury concerning a defendant’s right not to testify when the defendant has requested that no such instruction be given. A per se rule will avoid time consuming appeals arguing about harmless error and will clearly instruct trial judges as to how to proceed on this question.

This rule we announce today is a statement of the common law of the Commonwealth for cases tried after this date that the defendant has the choice.

As in Buiel, however, we decline to apply this new rule of law to the defendant in this case to grant him a new trial. The charge on the Appellant’s failure to testify was a correct statement of the law and we are convinced that giving the charge was harmless error beyond any reasonable doubt. The evidence against Appellant, as outlined above, was overwhelming.

The judgment of sentence is affirmed.

CAPPY, J., files a concurring and dissenting opinion in which FLAHERTY, J., joins.

1 . The challenged jury charge, in pertinent part, stated:

As he sits here with us this morning William Edwards is innocent of the charge of criminal homicide. He remains innocent unless and until you conclude that the Commonwealth has proven his guilt beyond a reasonable doubt.

He has no duty to defend himself. He does not have to prove his innocence. The Commonwealth has the burden of proving his guilt. He has elected in this case to present no defense. And he has elected not to testify. That is his right, and you may draw no inference adverse to him from that election; for in a criminal trial under our system of justice the accused does not have to testify in a matter which he is accused.