Commonwealth v. Jefferson

243 A.2d 412, 430 Pa. 532, 1968 Pa. LEXIS 741

Opinions

Opinion by

Mr. Justice Musmanno,

Leonard Jefferson was indicted in October, 1957, on two separate charges of aggravated robbery. He stood trial on October 29, 1958 on one of the charges

Footnotes

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* and the court, sitting without a jury, found him guilty. After a denial on February 26, 1959 of his motions for new trial and in arrest of judgment he was sentenced to 10 to 20 years imprisonment. No appeal from the refusal of his motions was taken.

On March 6, 1967, he filed a Post Conviction Hearing Act petition, contending that he had not knowingly and intelligently waived his right to appeal. After a hearing on that petition he was granted the right to appeal nunc pro tunc to the Superior Court. The appeal was taken and the Superior Court, with two dissents, affirmed the conviction: 211 Pa. Superior Ct. 439. We granted an allocatur.

The main issue before us is whether or not Jefferson is entitled to claim a violation of his constitutional rights because of the admission into evidence at his trial of the reply he gave the police upon their reading to him the confession of one John Hughes, which confession implicated Jefferson in the robbery. The police officer testified that after hearing Hughes’s statement implicating Jefferson, Jefferson “stated that he was glad it was all over; he was glad that he was apprehended. He said he was tired of running—he was afraid every minute.”

The court below considered this statement as an admission which corroborated and adopted Hughes’ statement as it was read to him by the police. Jefferson contends that his reply was an equivocal one and therefore at most could only be regarded as a tacit admission quoting from 112 U. of Pa. Law Review 226: “. . . the tacit admission rule may also be invoked if the accused responds not with silence but with words somewhere between a denial and an express acquiescence.”, and adding that such a tacit admission was proscribed by the decision of the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436. In making this argument, Jefferson relies on Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, where this Court held that an accused’s failure to deny, or his silence in the face of accusatory statements made in his presence, could not, under the Miranda decision any longer be used against him, “previous decisions of this Court to the contrary notwithstanding.”

However, this Court also stated in that case that the proscription against the use of tacit admissions as evidence was not to be applied retroactively. To this Jefferson answers that the proscription, if applied in his case would not amount to a retroactive application because the judgment in his case was not finalized as of the date of the Miranda decision—June 13, 1966— because he still had the right to appeal since he had been unlawfully deprived of that right, as found by the lower court which had allowed him to appeal nunc pro tunc. In support of this argument, Jefferson cites Commonwealth ex rel. Staino v. Cavell, 425 Pa. 365, where this Court stated: “Hence it logically follows from Tehan that the ruling banning the evidentiary use of ‘tacit admissions,’ first explicated in Miranda, need only be applied to those cases wherein the judgment was not finalized as of the date Miranda was announced.”

The United States Supreme Court in Linkletter v. Walker, 381 U.S. 618, defined finalization of judgment: “By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed.”

Jefferson’s right to appeal depended on a nunc pro tunc deliberation. “Nunc pro tunc” is defined by Black’s Law Dictionary as “Now for then ... A phrase applied to acts allowed to be done after the time they should be done . . . with the same effect as if it were done when it should have been done.” Thus, whatever Jefferson is entitled to on appeal is what he was entitled to, had the appeal been taken at its proper time. The delay in the taking of his appeal, even though not the result of his own fault, however, cannot enlarge those rights so as to permit him to obtain an advantage which would not have been his to attain, had the appeal been taken at its proper time. Jefferson’s rights must be determined by the law that existed when appeal was open to him. This ruling cannot be regarded as a penalty because if his appeal had been properly taken in 1959 he could not have obtained the relief he now requests in 1968.

In Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, supra, the defendant was convicted on May 19, 1960 and sentenced to life imprisonment. His motions for new trial were withdrawn and no direct appeal taken. In 1965 he filed a petition for habeas corpus which the lower court dismissed. On appeal, this Court remanded the record “for a hearing solely to determine if the appellant effectively waived his right to. the assistance of counsel in the prosecution of the new trial motion and appeal from the judgment,” stating (p. 88) : “Therefore, after consideration of the purpose of the rule announced in Miranda, supra, concerning evidence of Tacit admissions,’ the reliance placed upon this Court’s rulings in regard thereto for nearly a century and the obvious effect of its retroactive application on the administration of justice, we rule that it need not and will not be applied retroactively in Pennsylvania.” It was thus clearly indicated that even if the lower court had determined Shadd had the right to appeal, the appeal could not be governed by the Miranda decision.

Jefferson argues also that, taking his reply as a tacit admission, it is to be equated with a coerced or involuntary confession, subject to collateral attack at any time, and, therefore, capable of vitiating the conviction against him, regardless as to whether there exists other evidence to sustain it. In this connection he cites Commonwealth v. Dravecz, 424 Pa. 588. However, the term “tacit admission” in that case was limit ed to an admission implied from silence in the face of an accusatory statement; the entire reasoning of the opinion demonstrates that it was based on the injustice of having a man’s silence create evidence against him. At that time this Court was not faced with the definition of “tacit admission” as including an equivocal reply. Thus, the defendant cannot ask us here to expand that meaning to include an equivocal reply and then also ask us to apply a decision, the reasoning of which was clearly based on a meaning not so enlarged.

An equivocal reply cannot be equated with a forced confession by reason of silence. In the latter case, the accused’s silence should not be permitted as evidence of a confession because by his silence he clearly does not intend a confession. However, when an accused makes an equivocal reply which is a voluntary act on his part, the reasoning is bound to be different.

As to the contention that there should have been a preliminary hearing as to voluntariness of Jefferson’s reply when Hughes’s statement was read to him, what was said in Commonwealth ex rel. Shadd v. Myers, supra, is pertinent here: “It is noted, that the record discloses that the trial court did not conduct a preliminary hearing in the absence of the jury to determine the admissibility of the testimony of the ‘tacit admission’ as may be required by Jackson v. Denno, 378 U.S. 368 (1964). Since no objection to the introduction of the testimony on the ground of voluntariness was suggested or interposed at trial, the issue may not be raised at this late date. See, Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A. 2d 810 (1965). We need not reach the question of whether or not evidence of ‘tacit admissions’ comes within the purview of Jackson, supra.”

The judgment of sentence of the Court of Oyer & Terminer of the County of Philadelphia imposed on Bill No. 866, April Sessions, 1957, is affirmed.

Mr. Justice Jones and Mr. Justice Eagen concur in the result.

He had pleaded guilty on the other charge of aggravated robbery and sentence thereon was suspended.