Commonwealth v. Rasheed

572 A.2d 1232, 392 Pa. Super. 280, 1990 Pa. Super. LEXIS 694

• Court: Supreme Court of Pennsylvania
• Decided: March 27, 1990
• Docket: 01270
• Status: Published

Opinions

CAVANAUGH, Judge:

The sole issue for our consideration is whether the trial court committed reversible error in charging the jury in a rape case, over objection by defense counsel, that the defendant did not have to testify and that no unfavorable inference was to be drawn against the defendant for failure to testify in his own behalf.¹

In the case before us, the appellant, Abdul Rasheed, did not take the witness stand in the trial in which he was charged with rape and possession of an instrument of crime. His counsel did not want the court to charge on his client’s right not to incriminate himself, as he feared such instruction would focus the jury’s attention on the fact that the appellant did not testify.²

An accused in a criminal trial has the right not to testify under the Fifth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In Pennsylvania, a criminal defendant is also protected against testifying- against himself by statute,³ and by the provisions of Article I, Section 9 of the Pennsylvania Constitution.⁴

In the instant case, the defendant did not testify, and the prosecution made no reference to his failure to do so. Notwithstanding defense counsel’s request that he not, the court gave an instruction that is generally considered to be beneficial to the defendant that the jury could not draw any adverse inference against the appellant from his failure to testify. Trial counsel, as part of the strategy employed, requested the court not to give the instruction and the request was not complied with. Therein lies the basis of this appeal.

In Commonwealth v. Danzy, 225 Pa.Super. 234, 310 A.2d 291 (1973), the defendant did not request that the court not charge on his right to remain silent and the court charged that he had such a right, and that failure to testify could not be used against the defendant. The appellant contended that it was error to give such a charge in the absence of a request that it be given. We held that the charge could properly be given “so long as the defendant does not object.” 225 Pa.Super. 291, 310 A.2d 293. The court also noted that the charge is given for the protection of the defendant.

The Commonwealth, as appellee, argues that under Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) the charge may be properly given even where the defendant objects. Lakeside, supra, held that where the defendant objects to the. charge, and the charge is given nevertheless, this does not violate the Fifth and Fourteenth Amendments to the United States Constitution. The court noted, however, at 435 U.S. 340-341, 98 S.Ct. at 1095-1096, 55 L.Ed.2d 326:

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. We hold only that the giving of such an instruction over the defendant’s objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. (Emphasis added.)

All that Lakeside, supra, did was to remove federal constitutional barriers to the giving of the charge in question over counsel’s objection; it did not give approval to such a charge when objected to, and expressly left it to the states to decide the question.

Our decision in Danzy, supra, while not directly on point, since the procedural posture was different than in our case, by implication, stated that if the defendant objects to the charge before it is given, the court should not give the charge. This rule is reasonable, as defense counsel and his or her client should be able to decide if they want the jury to focus on the fact that the defendant has not testified. The jury will be aware of this fact, but in some cases the defendant may not want this highlighted.

We believe the rule should be that where a criminal defendant does not testify, and specifically requests the court not to charge that he has the right not to testify and that no adverse inference may be drawn from his failure to take the stand, that it is error for the court to give the instruction concerning a defendant’s right to remain silent.⁵ This is consistent with Commonwealth v. Danzy, supra, which stated that “[W]hether the charge is given is the defendant’s choice.” 225 Pa.Super. 236, 310 A.2d 293.

While it was error to give the instruction where the defendant requested that it not be given, we must look at the entire record of the trial at which the error occurred to determine if it is harmless error. In the case before us, there was evidence that the appellant knew Deborah King for a short period of time prior to the incident. Ms. King worked in the Custodian Department at Central High School and when walking to work, she passed the defendant, who at that time was employed as a construction worker, and came to know him. Ms. King lived alone. At 9:30 A.M. on the morning of June 16, 1986, the appellant appeared at her door to return a jug that she had loaned him containing a beverage. She invited him in and gave him a can of beer. The two talked in the kitchen. Finally, Ms. King told the appellant that he would have to leave, as she had to return to work. The appellant made advances toward Ms. King and when she refused to kiss him and again told him to leave, he pulled out a twelve-inch knife and instructed her to go to the bedroom. She was fearful not to comply with his demands and he told her to remove her clothing which she did. She kept asking him why he was doing this to her. She told him that she was bleeding and he said that he had seen blood before. He then had sexual intercourse with her and after he reached for his knife again, the victim submitted to a second act of intercourse. After the acts occurred, the two got dressed and the appellant walked the victim to school.

When Ms. King got to her work area at Central High School, one of her co-workers saw that she was crying and asked her what was wrong and she told her that she had been raped. She also told a non-teaching assistant what happened, who told her to report the incident to the police, which she did. She was then taken to Episcopal Hospital and examined.

A few days after the assault occurred, the appellant called Ms. King and asked her if she called the police on him.

While the court erred in giving the objected to charge, .the error was not such that a new trial is required. Where an error is committed in introducing evidence, it may be harmless error in some circumstances. The supreme court stated in Commonwealth v. Story, 476 Pa. 391, 412, 383 A.2d 155, 166 (1978):

... [EJrror may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.

In determining whether error in admitting evidence is harmless, the court must determine if the admissible evidence of guilt is overwhelming. Commonwealth v. Morris, 522 Pa. 533, 564 A.2d 1226 (1989); Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984); Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983). The reviewing court therefore focuses on whether the error contributed to the verdict, and if so, it is not harmless. By way of analogy, prosecutorial misconduct is grounds for relief only where the conduct prejudices the jury by forming in its mind fixed bias and hostility toward the defendant so that it could not weigh the evidence objectively and render a true verdict. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). Further, the prejudicial effect must be evaluated in the context in which it occurred. Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987).

Our case does not involve evidence erroneously admitted, or conduct by a prosecutor that is improper and therefore, admitted an element of error into a trial, but rather a charge by the court that it was a correct statement of the law, but should not have been given.⁶ To determine if the error is harmless, we must discern if the error in the charge, in any way, contributed to the verdict so as to render it less than a true verdict. We perceive that it did not in this case. The appellant has not challenged the sufficiency of the evidence, and indeed it was sufficient under the law to sustain the convictions. Although the charge may have called attention to the fact that the appellant did not testify, no evidence was offered on behalf of the defendant and the charge did not call the jury’s attention to anything of which it was not aware.⁷

While we decide that the court erred in charging the jury concerning the lack of an adverse inference from the defendant’s failure to testify, when the defendant requested that such charge not be given, we are unable to agree with the Supreme Court of Massachusetts that the giving of the charge is per se reversible error.⁸ The better course, in our opinion, is to determine on a case by case basis whether the error committed by the court in giving the charge when the defendant requested that it not be given, constitutes harmless error, as in the case before us.

We add the following in response to the dissenting opinion of Cirillo, President Judge: We do not find that the issue raised by appellant has been waived. The Commonwealth in its brief concedes that the appellant filed supplemental post-verdict motions raising the sole issue pursued on this appeal. Further, in our view, Judge Klein permitted the filing of the supplemental post-verdict motions when he stated that “additional grounds raised in support of such motions may be filed in writing after the transcription of the record if the transcript is necessary for these additional grounds.” In any event, the supplemental motion was filed eleven days after the verdict, and in view of the trial court’s statement, must be construed to be timely.

We must not be too quick to find waiver. In Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987) this court held that it could not consider a sufficiency of the evidence issue raised in a supplemental post-trial motion where the court did not grant permission to file such a motion, even though the trial court considered this issue on the merits. The Supreme Court in a per curiam order held that this court erred in treating the issue as waived. 518 Pa. 55, 544 A.2d 1342 (1988).

In Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) the Supreme Court determined that this court abused its discretion in finding waiver of an issue where the post-trial motions were not filed within ten days after verdict in violation of the rules of civil procedure, where the trial court overlooked the defect, and addressed the merits of the issue. See also, Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988) where we deemed an issue not waived although there was no permission granted to file supplemental post-trial motions, and the trial court nevertheless considered the issue. We were guided by the Supreme Court’s per curiam order in Commonwealth v. Sheaff, supra.

In the instant case, the court below abused its discretion in not reviewing the issue raised in the supplemental post-trial motion. In any event, even if we considered that the issue was waived, which we do not, we could nevertheless choose to consider the issue. Commonwealth v. McSherry, 371 Pa.Super. 164, 537 A.2d 871 (1988). Finally, it is significant that the issue in this case was considered of sufficient importance to be heard by the court en banc.

Judgment of sentence affirmed.

TAMILIA, J., files concurring statement. KELLY and JOHNSON, JJ., file concurring and dissenting opinions. CIRILLO, President Judge, files dissenting opinion.

1 . The relevant portion of the charge by Honorable Charles Klein, senior judge, was as follows:

Now, the defendant, Abdul Rasheed, did not take the witness stand in his own defense. Under the law, he does not have to take the stand or offer a defense. This is his absolute right and must be clearly understood by you and accepted as his right. Defendant is presumed to be innocent, and the burden remains on the Commonwealth to prove beyond a reasonable doubt all of the elements of the crimes with which the defendant is charged from the beginning of the trial till the end thereof.

Therefore, I wish to make it clear that no inference, and certainly, no unfavorable inference is to be drawn against the defendant because he did not take the stand in his own behalf.

2 . Following trial, the jury convicted appellant of rape and possession of an instrument of crime and he was sentenced to imprisonment for rape for a period of seven and one-half to fifteen years. The court did not impose sentence for his conviction of possession of an instrument of crime.

3 . 42 Pa.C.S. § 5941(a) provides:

(a) General rule. — Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him; nor may the neglect or refusal of any defendant, actually upon trial in a criminal proceeding, to offer himself as a witness, be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial.

4 . Article I, Section 9 of the Pennsylvania Constitution provides:

Sec. 9. Rights of accused in criminal prosecutions.

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land. (Emphasis added.)

5 . This rule does not necessarily extend to cases where the prosecutor erroneously refers to the fact that the defendant did not testify. A cautionary instruction may be required then to cure the error. The Subcommittee Note for Pennsylvania Suggested Standard Criminal Jury Instruction 3.10A states:

The question of whether to give this type instruction [concerning right to remain silent] generally does not come up unless the prosecutor or someone else has improperly alluded to the defendant’s silence. The instruction may be given sua sponte, and preferably immediately, whenever a flagrant impropriety occurs. However, because the instruction does remind the jury that the defendant did not elect to tell his own story, the court should ordinarily ascertain the defense counsel’s desires before giving the instruction. A defense preference for no instruction ought to be respected when the impropriety was not serious.

6 . The Concurring and Dissenting Opinion focuses on whether the evidence of guilt is overwhelming to determine if the evidence is harmless. However, as noted above, the error in the instant case did not involve an error in admitting evidence, as in Story, supra. The focal point in the matter sub judice, is whether the charge as given resulted in an improper verdict.

7 . Our case is distinguishable from Lakeside v. Oregon, where several witnesses testified on behalf of the defendant, but the thoughts expressed by the court are nevertheless applicable. The court stated at 435 U.S. 339-340, 98 S.Ct. at 1094, 1095, 55 L.Ed.2d at 325:

Specifically, the petitioner contends that in a trial such as this one, where the defense was presented through several witnesses, the defendant can reasonably hope that the jury will not notice that he himself did not testify. In such circumstances, the giving of the cautionary instruction, he says, is like "waving a red flag in front of the jury.

The petitioner’s argument would require indulgence in two very doubtful assumptions. First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own. Second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all.

8 . The Supreme Judicial Court of Massachusetts stated in Commonwealth v. Buiel, 391 Mass. 744, 463 N.E.2d 1172 (1984) held that it is reversible error to grant the instruction where the defendant requested that it not be given, but that the rule would not be applied to the instant case, but would apply in the future. The court stated at 391 Mass. 746, 463 N.E.2d 1173-1174:

We have no hesitancy in announcing for the future that it will be 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. It is difficult to determine whether such an instruction is beneficial to a particular defendant or to defendants as a group. On the one hand, it warns the jury against drawing inferences adverse to the defendant from his not testifying. On the other hand, such an instruction may focus the jury’s attention on the question why the defendant decided not to assist the jury in their fact-finding function.

See also, Hardaway v. State of Maryland, 317 Md. 160, 562 A.2d 1234 (1989) which refers to several states in which giving the instruction in question in our case, over the defendant's objection, has been held to be error.