Commonwealth v. Williams

381 A.2d 1285, 252 Pa. Super. 435, 1977 Pa. Super. LEXIS 2970

Opinions

HOFFMAN, Judge:

Appellant contends that the Commonwealth failed to produce sufficient evidence to convict him of attempted murder,¹ felonious restraint,² kidnapping,³ aggravated assault,⁴ robbery,⁵ recklessly endangering another person,⁶ theft of movable property,⁷ possession of an instrument of crime,⁸ use of a prohibited offensive weapon,⁹ and criminal conspiracy.¹⁰ Appellant also contends that the lower court erred in admitting certain unfairly prejudicial physical evidence and in allowing a Commonwealth witness to testify that appellant elected to remain silent after his arrest. We believe that the Commonwealth produced sufficient evidence to convict appellant on the above charges. However, we grant appellant a new trial because the lower court permitted a Commonwealth witness to testify that appellant elected to remain silent after his arrest.¹¹

From October 28-31, 1975, appellant was tried before a jury in the Montgomery County Court of Common Pleas on the aforementioned charges. The Commonwealth adduced the following facts at trial. Mr. Rigney, a 78 year old man, testified that on May 15, 1975, he drove his 1974 Plymouth Duster into a parking lot at 69th and Walnut Streets in Upper Darby, Delaware County. After parking his car, Mr. Rigney began to read his newspaper. Suddenly, a gun protruded through the window on his left, and another gun appeared through the front passenger window on his right. Two men jumped into the car from both sides, thus sandwiching the victim in between. The two men instructed the victim to remain motionless and to look straight ahead. One of the men said: “You white MF, you’re going to die, man.” After driving for about 30-45 minutes, they arrived at an isolated spot in the Strawberry Mansion section of Fair- mount Park in Philadelphia where they stopped the car, ordered the victim to get out, and then locked him into the trunk of the car. The kidnappers resumed their journey. After driving for an additional 30-45 minutes, they arrived at a very remote, wooded area of Upper Merion Township in Montgomery County. At this point, the abductors freed Mr. Rigney from the trunk. A third man, who had joined the two kidnappers sometime during their trip, told Mr. Rigney to put his hands behind his back. As the victim attempted to back away, one of the attackers knocked him to the ground and tied his hands behind his back with white adhesive tape. The assailants then pulled Mr. Rigney to his feet, slipped a noose, made out of a necktie, around his head, and pulled tight. They then led Mr. Rigney to a nearby ravine and pushed him over the edge. As he fell, the victim lost consciousness.

When he regained his senses, the victim discovered that he had fallen only 5 or 6 feet and had come to rest in a plateau area of the ravine. His hands were now free, and the white tape hung from his wrists. He removed the noose and attempted to move. However, nausea overcame him, and he lost consciousness again. Several hours later, he regained consciousness and crawled out of a ravine onto an adjacent road. A passerby found Mr. Rigney and called the police and an ambulance.

The passerby and the attending police officers testified that Mr. Rigney had been severely beaten; his face was swollen, deformed and black and blue. His forehead had a deep gash, and blood covered his face and neck. His hands were similarly cut, bloody, and discolored. Ticks infested exposed areas of his skin. The victim gasped and had extreme difficulty breathing. According to Mr. Rigney, he suffered permanent loss of hearing in one ear. Moreover, he testified that the assailants removed his 16 year old Timex wristwatch, his car, his keys, and his wallet with his vehicle registration card.

A police officer testified that on May 17, 1975, two days after the sordid attack, he spotted the victim’s car in an area near the scene of the abduction. Appellant entered the car and drove off. The police officer stopped appellant and questioned him. Appellant told the police officer that he did not have a driver's license and that he had borrowed the car from a friend. When appellant could not produce a registration card, the police officer arrested him. At the police station another police officer questioned appellant about his possession of the victim’s car. Appellant changed his account and asserted that on May 16, 1975, he found the car parked along the street with the keys in it and decided to take it for a ride. Appellant then elected to remain silent. Police officers also testified to a search of appellant’s person and the victim’s car. On his wrist, appellant wore the victim’s 16 year old Timex watch. When questioned as to how he came into possession of this watch, appellant responded that he had purchased the watch, brand new, six months earlier. The police also found the victim’s automobile registration card in appellant’s wallet. The search of the victim’s car disclosed the following items: several rolls of white adhesive tape of the same nature used in the attack, a gun, a letter addressed to appellant, several books marked with appellant’s name, and many pieces of appellant’s personal clothing.

On October 31, 1975, the jury returned guilty verdicts on all charges. At appellant’s behest, his counsel made and argued oral post-verdict motions on the record at the conclusion of trial. See Pa.R.Crim.P. 1123(b); 19 P.S. Appendix. After denying the post-verdict motions, the lower court sentenced appellant to two consecutive 10-20 year terms of imprisonment on the kidnapping and attempted murder charges and one concurrent 10-20 year term of imprisonment on the robbery charge. This appeal followed.

Appellant first contends that the Commonwealth did not adduce sufficient evidence to prove beyond a reasonable doubt that he committed the crimes charged. In particular, appellant asserts that the only evidence linking him to the May 15,1975 events was his possession of property stolen from the victim. “In determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt, of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence, upon which the trier of facts could properly have based the verdict. Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971); Commonwealth v. Petrisko, 442 Pa. 575, 275 A.2d 46 (1971).” Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974). We must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Newkirk, 455 Pa. 559, 317 A.2d 216 (1974). Moreover, a conviction may be based solely upon circumstantial evidence sufficient to prove a defendant’s participation in the crime charged beyond a reasonable doubt. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973).

In the instant case, the Commonwealth presented sufficient circumstantial evidence to support the jury’s guilty verdicts. The police found appellant driving the victim’s car near the scene of the abduction within 48 hours of the crimes. When questioned, appellant proffered two false and contradictory accounts of his possession of the car. The police found the victim’s 16 year old Timex watch on appellant’s wrist; when questioned as to his possession of this item, appellant responded with a patent falsehood. The police also found the victim’s registration card in appellant’s wallet. A search of Mr. Rigney’s car disclosed several rolls of white adhesive tape of the same type used to bind Mr. Rigney’s hands and a gun. The police also found several of appellant’s personal possessions in the car. We believe that this evidence, when considered in its totality, sufficiently links appellant to the commission of the reprehensible crimes of May 15, 1975.

Appellant next alleges that the Commonwealth did not produce sufficient evidence of possession of an instru ment of crime in Montgomery County.¹² The lower court summarized the pertinent evidence on this issue and refuted appellant’s contention: “There was direct testimony that [a gun] was there at the scene of the abduction, and later, that the outline of it was observed in the pocket of one of the abductors. A gun was found in the victim’s car when defendant was picked up. It would be folly to imagine that the gun had not gone along with the men to Montgomery County on this entire nefarious venture, and that it did so was not an unreasonable inference for the jury to have drawn. The Commonwealth is entitled to all reasonable inferences arising from the evidence.” Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971). We concur with the lower court’s analysis and likewise reject appellant’s claim.

Appellant next contends that the trial court committed reversible error in allowing a Commonwealth witness to testify that appellant elected to remain silent after his arrest. We agree and, therefore, grant appellant a new trial.

At trial, the Commonwealth called William P. O’Brien, an Upper Merion Township police officer who interrogated appellant on the night of his arrest and incarceration. Officer O’Brien testified that he advised appellant of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The prosecutor and Officer O’Brien then engaged in the following interchange.

“Q. What did you do having met Mr. Williams?

“A. I asked him for his personal identification, name, address, date of birth, inquired as to how he came into possession of a vehicle that he was operating, that of Mr. Rigney’s.

“Q. Did he tell you how he came in possession of it?

“A. He said that on the date prior to that, the 16th, he had found the car parked along a street with the keys in it and took it for a ride.

“Q. Then what happened?

“A. After that he elected to remain silent.”

The trial court denied defense counsel’s motion for a mistrial and also stated that: “I don’t think that anything would be served even by a cautionary instruction the way it was elicited.”

In Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826, 828 (1976), the following dialogue occurred at trial:

“[Q.] Did Greco ever say anything to you?

“[A.] We had several conversations. I advised him to— that he had the right to remain silent, and he didn’t actually make any statements other than general conversation.”

The lower court denied defendant’s request for a mistrial and did not give a cautionary instruction. The Supreme Court found this testimony an impermissible encroachment upon the defendant’s right not to incriminate himself and granted a new trial. The Court stated:

“The law is clear. It is reversible error to admit evidence of a defendant’s silence at the time of his arrest. Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). The prohibition of any reference to an accused’s silence reflects the court’s desire that an accused not be penalized for exercising his constitutional rights. Commonwealth v. Stafford, supra; Commonwealth v. Haideman, supra; Miranda v. Arizona, [supra ]. It is a recognition that most lay persons would view an assertion of the constitutional privilege as an admission of guilt. Commonwealth v. Haideman, 449 Pa. at 371, 296 A.2d at 767, citing Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968).” 465 Pa. at 403, 350 A.2d at 828. (Emphasis supplied). The Court concluded that: “An admission of guilt constitutes highly prejudicial evidence and cannot be considered harmless error.” 465 Pa. at 404, 350 A.2d at 828.¹³

In Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976), our Supreme Court, in a plurality opinion per EAG-EN, J., held that reference to an accused’s silence at the time of his arrest could be harmless error provided that the trial court gave adequate cautionary instructions. In particular, the Court concluded that a cautionary instruction could cure an error abridging the defendant’s right to remain silent if, for example, the nature of the reference was indirect and was not exploited by the District Attorney.

In Commonwealth v. Hinds, 244 Pa.Super. 182, 366 A.2d 1252 (1976), our Court concluded that the trial court committed reversible error by admitting the testimony of a police officer that the defendant, charged with involuntary manslaughter, failure to stop at the scene of an accident, and failure to stop and render assistance, proffered the following statement after being warned of his Miranda rights: “ ‘I don’t want to say anything until I talk to my attorney, but I will say this: I passed a car, and, when I did, the car splashed my windshield. I didn’t see anything. I didn’t see the girl. I didn’t know that I hit her. I did stop and look.’ ” Id. 244 Pa.Super. at 190, 366 A.2d at 1256. Our Court reiterated that Commonwealth v. Greco, supra, prohibited any reference to the accused’s invocation of his constitutional right to remain silent and stated that “. . . the fact that a defendant had made a voluntary statement to the police would not change our holding that testimonial reference to an accused’s assertion of his rights, whether made at the time of his arrest or at some later time, is prejudicial and requires that a new trial be granted.” 244 Pa.Super. 191, 366 A.2d at 1257.¹⁴

Finally, in Commonwealth v. Mitchell, 246 Pa.Super. 132, 369 A.2d 846 (1977), our Court granted a new trial because the arresting police officer gave the following testimony:

“I then asked him about the burglary at Doctors Brady, Kegel and France Offices, and he denied any knowledge of the burglary.

“I then confronted him with the lug wrench [found at the scene of the burglary] and told him that this is how I broke the case, and he immediately made recognition of the lug wrench. He said, oh, that was ripped off, stolen from my apartment sometime in April or May, along with a stereo set. He said, I have a lot of Toyota tools in my apartment.

“I then advised him that I had contradictory information regarding his possession of the lug wrench, and then he said he had no more to say and would commit suicide.”

We stated that “[t]he right not to have one’s silence used against one does not depend upon whether the right is asserted at the beginning of interrogation or later on.” 246 Pa.Super 137, 369 A.2d at 848. We concluded that the testimony, in the absence of a cautionary instruction, could not be considered harmless error.

Reading Greco, Maloney, Hinds, and Mitchell together, we believe that our appellate courts have found any reference to an accused’s silence after arrest to be reversible error unless the trial court gives a prompt and adequate cautionary instruction. The Dissenting Opinion contends that these prior decisions are distinguishable because “ . . . the references to the defendant’s remaining silent [were] more than one in number and [left] no doubt, by deduction or inference, that the accused during questioning would not discuss the crime.” (at 450). To the contrary, Greco, Hinds and Mitchell each involve only one testimonial reference to the accused’s exercise of his right to remain silent after arrest, and Hinds and Mitchell involve attempts by the defendant to discuss the crime by offering exculpatory statements. The Dissenting Opinion also asserts that the Commonwealth’s questioning only referred to the charge of theft of movable property; however, appellant’s possession of the victim’s car was the most damaging evidence adduced against appellant because it linked appellant to the commission of all offenses charged. Testimony that the appellant “elected to remain silent” after stating that he found the car parked on the street and took it for a ride impermissibly allowed the jury to infer that if appellant’s initial exculpatory statements contained a grain of truth, he would have offered further explanatory details. Because the Commonwealth fails to distinguish adequately prior Pennsylvania appellate court decisions holding that any reference to a defendant’s silence after arrest constitutes reversible error in the absence of an adequate cautionary instruction, we grant appellant a new trial.¹⁵

Judgment of sentence vacated and case remanded for a new trial.

VAN der VOORT, J., files a dissenting opinion in which WATKINS, President Judge, and PRICE, J., join.

Footnotes

1

. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334; 18 Pa.C.S. §§ 901, 2501.

2

. The Crimes Code, supra; 18 Pa.C.S. § 2902.

3

. The Crimes Code, supra; 18 Pa.C.S. § 2901.

4

. The Crimes Code, supra; 18 Pa.C.S. § 2702.

5

. The Crimes Code, supra; 18 Pa.C.S. § 3701.

6

. The Crimes Code, supra; 18 Pa.C.S. § 2705.

7

. The Crimes Code, supra; 18 Pa.C.S. § 3921.

8

. The Crimes Code, supra; 18 Pa.C.S. § 907.

9

. The Crimes Code, supra; 18 Pa.C.S. § 908.

10

. The Crimes Code, supra; 18 Pa.C.S. § 903.

11

. Because of this disposition, we do not decide appellant’s challenge to the admissibility of the allegedly prejudicial physical evidence.

12

. Appellant does not contend that a gun is not a “prohibited offensive weapon” under 18 Pa.C.S. § 908. Nor does appellant argue that a gun is not an “instrument of crime” under 18 Pa.C.S. § 907. Appellant only asserts that he did not possess a gun in Montgomery County on May 15, 1975. Accordingly, we only decide this narrow issue.

13

. In the instant case, the Dissenting Opinion asserts that “[t]he public is not unaware of the accused’s right to remain silent and the duty of the Commonwealth to prove guilt beyond reasonable doubt. With this recently increased awareness, I find it more and more unlikely to suspect that prejudice arises when the exercise of the constitutional right is mentioned, particularly in an off-hand manner. I believe that the awareness of this right has been most generally disseminated through the media until we have now reached the juncture where slight, unrepeated mention of the accused’s remaining silent without contextual direct or inferential potential for prejudice, is no more harmful to the accused in the eyes of jurors than prosecution statements as to allegations of guilt.” At 451. However, by stating that most lay persons would view testimonial reference to a defendant’s silence after arrest as an admission of guilt, Commonwealth v. Greco, supra, directly refutes this analysis. Moreover, the Dissenting Opinion’s argument would completely eviscerate the constitutional protection afforded by the right to remain silent after arrest. Finally, even if we were to conclude that testimonial reference to a defendant’s silence would have minimal impact upon a jury cognizant of a defendant’s right to remain silent, the absence of affirmative justification for the testimony would warrant its prohibition. See Field, Assessing the Harmlessness of Federal Constitutional Error—A Process in Search of a Rationale, 125 U.Pa.L.Rev. 15, 20 (1976). (Discussing prosecutorial comment on a defendant’s failure to testify.)

14

. Hinds reaffirms our statement in Commonwealth v. Greco, 227 Pa.Super. 19, 23 (n. 4), 323 A.2d 132, 134 (n. 4), (1974), affirmed Commonwealth v. Greco, supra, that “[any] reference by the prosecution at trial to a defendants resumption of silence [after making a voluntary statement] would also be prejudicial.”

15

. Even assuming that a reference to an accused’s silence after arrest could be harmless error despite a trial court’s failure to give a cautionary instruction, we believe that the Dissenting Opinion palpably applies the wrong standard in assessing harmlessness in the instant case. The' Dissenting Opinion states: “Because it is very difficult for an appellate court from the printed record to have the same feeling for the events at trial as did the lower court judge, I should find error only when it is clear that the trial judge abused his discretion in denying the motion for a mistrial.” (at 451) (Emphasis supplied). However, in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court held that before a federal constitutional error can be held harmless, the beneficiary of the constitutional error, here the Commonwealth, must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. See also M. Field, Assessing the Harmlessness of Federal Constitutional Error—A Process in Need of Rationale, supra. We believe that the Dissenting Opinion fails to apply this demanding test. We note that the Commonwealth did not produce either eyewitness identification of appellant or a confession; indeed, the Dissenting Opinion concedes that the evidence against appellant was mainly circumstantial (at 453). Even if we apply a harmless error test in the instant case, despite the absence of cautionary instructions, we cannot say beyond a reasonable doubt that the federal constitutional error did not contribute to appellant’s conviction.