Petition for Writ of Certiorari — Howard v. Pennsylvania

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TABLE OF CONTENTS

Page

Bea A ed Pe rear eae eer 2

TT IN NS gh aA cucn oie a 8a kw hy ae ees 2

hake Ps ow hb eee hae es 3

Constitutional Provisions Involved .............. 4

Eg Lk ere ere 5

Reasons for Granting the Writ ................... 7

eo ris ene Wd ai ths eit x bee ek Aa eA a 13

EE fatah Cee rs eh rarer cas easy OS Se ex 14

ee at Leah clea Son vive ee eae Gare se 15

TABLE OF CITATIONS

Cases:

Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133

ry ears ye rare rerae wwe Se 11,12

Baker v. United States, 357 F.2d 11 (5th Cir. 1966)... = 7

Chapman v. State of California, 386 U.S. 18, 87 S.Ct.

ELE 1 Saltese keen dk hehe kak oe ae 8 11

Commonwealth v. Butler, 442 Pa. 30, 272 A.2d 916

|. ORR R RI rem per gg Gee arg ao Orr A )

Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d

RIO aera ar at ar Gren ita an tl ee rae ton eae ae 7

Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d

ES eo a Laka las tte kak eKits 9

Emspack v. United States, 349 U.S. 190, 75 S.Ct. 687

me es eer eee 10

Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11

Sy ee Es sk ox kina ds he eo ees 10

Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837

SESS hee ek er ees Coe OR TEAS we Ke 10, 11

TABLE OF CITATIONS— Continued)

Cases: Page

Fontaine v. Cahfornia, 390 U.S. 593, 88 S.Ct. 1229, 20

SpE HPCE cock bad tev kaw cs eeee pa 0% 10, 12

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14

BS & F: Fee eae 7

Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13

DE PID 6 og bcs kc euhn dhe ke bes 9.10.11

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.

1461, 146 A.L.R. 357 (1938) ....... 10

Kerr v. California, 374 U.S. 23, 83S.Ct. 1623, 10 L Ed.2d

PM aa terre CL caren eh aad 10

Lynumm v. Illinois, 372 U.S. 528, 83 S(t. 917, 9

ef lt er rere Py 10

Walker v. United States, 404 F.2d 900 (5th Cir. 1968) . 8

il

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

JESSE W. HOWARD, JR., Petitioner

v.

COMMONWEALTH OF PENNSYLVANIA, Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

To: The Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

The Petitioner, Jesse \W. Howard, Jr., prays that a

Writ of Certiorari issue to review the Opinion and Order

of the Supreme Court of Pennsylvania denying Petitioner's

Petition for Reconsideration of Denial of Petition for Al-

lowance of Appeal, the consequences of which upheld the

Order of the Superior Court of Pennsylvania, Philadelphia

District, affirming the Order of the Court of Common Pleas

of Lancaster County, Pennsylvania, denying Petitioner's

Motion for a New Trial following a conviction of two counts

of burglary, two counts of larceny, and one count of con-

spiracy.

2

OPINIONS BELOW

The Order of the Supreme Court of Pennsylvania deny-

ing Petitioner's Petition for Allowance of Appeal and deny-

ing Petitioner's Petition for Reconsideration of Denial of

Petition for Allowance of Appeal, the Opinion of the Su-

perior Court of Pennsylvania, Philadelphia District, affirm-

ing the judgment of sentence and Orders of the Court of

Common Pleas, Criminal Division, of Lancaster County,

Pennsylvania, are attached hereto.

JURISDICTION

The Order of the Supreme Court of Pennsylvania was

filed May 8, 1974. The jurisdiction of this Court is invoked

under 28 U.S.C. Sec. 1257(3) and Rule 22(1) of the United

States Supreme Court Rules.

QUESTIONS PRESENTED

1. Whether the introduction of testimony by the

prosecution that Petitioner was advised of his Miranda

rights when arrested but chose to remain silent, and not

to make any statements, and the judge’s comment upon

this testimony during his charge to the jury, constitutes

reversible error?

2. Whether, in the absence of an evidentiary hear-

ing, or sufficient evidence in the record, counsel's failure

to object to prosecution testimony that Petitioner was ad-

vised of his Miranda rights when arrested but chose to

remain silent, and not to make any statements, and the

judge’s comment upon this testimony, can be held to be a

waiver of Petitioner's Fifth Amendment privilege or that

said failure to object was part of trial strategy?

3. Whether the Superio: Court of Pennsylvania ap-

plied the proper standard in determining that a jury’s

awareness through Commonwealth testimony of a defen-

dant’s silence at time of arrest and constitutional warn-

ings is not, under the circumstances existing in the present

case, a defect so fundamental as to affect the merits of

justice of this case or to offend against the fundamentals

of a fair and impartial trial?

4. Whether, in a case where the evidence against the

defendant is circumstantial and there is other substantial

evidence to support acquittal, the introduction of testimony

by the prosecution that Petitioner was advised of his

Miranda rights when arrested but chose to remain silent,

and not to make any statements, and the judge’s comment

upon this testimony during his charge to the jury, is harm-

less error beyond a reasonable doubt?

me

4

CONSTITUTIONAL PROVISIONS INVOLVED

1. The United States Constitution, Amendment

XIV, Section 1: “. . . nor shall any state deprive any per-

son. of life, liberty, or property. without due process of

law...”

2. The United States Constitution, Amendment \:

“No person . . . shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law . . .”

Ad

>

STATEMENT OF THE CASE

Petitoner was arrested on July 19, 1971, in Lancaster

County, Pennsylvania, and charged with two counts of

burglary, two counts of larceny, and one count of con-

spiracy. He was indicted by the Grand Jury of Lancaster

on these charges at Nos. 1895, 1898, and 1900 of 1971. On

March 29, 1972, he was tried before Judge William G.

Johnstone, Jr., and a jury of the Court of Common Pleas of

Lancaster County and found guilty on all counts. Triai

counsel, Raymond R. Smith, Esquire, of York County,

Pennsylvania, made oral Motions for a New Trial and in

Arrest of Judgment which he reduced to writing within

seven (7) days. However, he failed to file supplemental

reasons after the Notes Of Testimony were transcribed,

and failed to file a brief or appear and argue the motions,

and they were dismissed at bar without argument or

Opinion. William A. Atlee, Jr., Esquire, was subsequently

retained to perfect an appeal to the Superior Court of

Pennsylvania, Philadelphia District, from the Judgment

of Sentence. An Order of the Superior Court, filed Novem-

ber 16, 1973, affirmed the Petitioner's conviction for two

counts of burglary, two counts of larceny, and one count

of conspiracy. The Opinion of the Superior Court was

written by Judge Jacobs, with Judges Hoffman, Cercone,

and Spaeth concurring in the result. A copy of said Opinion

is attached hereto. There was no Dissenting Opinion

filed. Subsequently, the Pennsylvania Supreme Court on

March 25, 1974, denied Petitioner's Petition for Allowance

of Appeal from the Superior Court. The Petitioner then

petitioned for the reconsideration of the denial of the

Petitio:: for Allowance of Appeal from the Superior Court.

This Petition was denied on May 8, 1974.

Petitioner's Appeal from the Judgment of Sentence

requested the Pennsylvania Superior Court to consider

two issues:

1. Whether the lower court erred in denying

Petitioner's Motion for Sequestration of Witnesses at

Ce

)

the initiation of trial, since the case was based solely

upon circumstantial evidence and Jgentative eye-wit-

ness identification by different people at different

times and places; and

2. Whether a witness’ statement that Petitioner

had remained silent upon being arrested and notified

of his constitutional rights, and the judge's reference

to this testimony in summarizing the evidence, con-

sutyged grounds for reversal.

At the trial of the case at bar, police officer, Ronald

Jones of East Donegal Township, testified that he read the

Petitioner his Miranda rights, then asked him that having

these rights in mind, did he wish to talk to them. He testi-

fied that Petitioner responded “No”, and that he did not

wish to talk to the officers or to make any statement

(N.T. 205-206). This testimony was repeated on cross-

examination in response to a question by Petitioner’s coun-

sel. Judge Johnstone, in his charge to the jury, commented

on the decision of the Petitioner to remain silent:

“They were advised of their constitutional rights

and neither of them wished to say anything, which

is their privilege, their constitutional right.” (N.T. 334)

After the failure of the Pennsylvania courts to remedy

the violation of Petitioner’s Fifth Amendment right to

remain silent, this Petition for Writ of Certiorari followed.

7

REASONS FOR GRANTING THE WRIT

1. Whether the introduction of testimony by the prosecu-

tion that Petitioner was advised of his Miranda rights

when arrested but chose to remain silent, and not

to make any statements, and t. judge’s comment

upon this testimony during his charge to the jury,

constitutes reversible error?

It is a well-settled principle of constitutional law that

a criminal defendant may not be penalized for the ex-

ercise of his Fifth Amendment privilege. Neither the prose-

cutor nor the trial judge may directly comment to the jury

concerning the defendant's failure to testify, Griffin v.

California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed. 2d 106

(1965). There can be no comment or adverse inference

drawn from refusal of a criminal defendant ‘o testify

since this would constitute the imposition of an imper-

missible penalty by the court in the exercise of a constitu-

tional privilege.

“It cuts down on the privilege by making its

assertion costly ... What the jury may infer, given no

help from the Court is one thing. What it may infer

when the Court soiemnizes the silence of the accused

into evidence against him is quite another.” Griffin

v. California, 380 U.S. 609, 614, 85 S.Ct. 564, 14 L.Ed.

2d 110 (1965).

This principle has been extended ‘1o apply to the con-

duct of the trial, prohibiting any testimony or comment by

the trial judge on the defendant's decision to remain

silent in the face of charges pressed against him. It has

been held that the testimonial reference to an accused's

silence at the time of arrest and questioning is a constitu-

tionally impermissible violation of the accused’s fifth

Amendment rights. Commonwealth v. Haideman, 449

Pa. 367, 296 A.2d 765 (1972); Baker v. United States, 357

F.2d 11 (5th Cir. 1966).

@=ore CWvaiew

8

In the trial of the case at bar, Petitioner’s exercise

of his Fifth Amendment privilege was testified to by

police officer, Ronald Jones, of East Donegal Township

(N.T. 205-206). He stated that he read the Petitioner his

Miranda rights, then asked him that having these rights

in mind, did he wish to talk to them. The Petitioner re-

sponded “No”, that he did not wish to talk to the officers

or to make any statement. Judge Johnstone, in his charge

to the jury, commented on this decision of the Petitioner

to remain silent:

“They were advised of their constitutional rights

and neither of them wished to say anything, which is

their privilege, their constitutional right.” (N.T. 334).

The introduction of this testimony and the judge's

comment upon it was an impermissible penalty for the

exercise of Petitioner's Fifth Amendment right, prejudicing

him in the eyes of the jury. Combined with the facts that

Petitioner chose not to take the stand in this particular

case, the adverse inference which would be drawn by the

jury is self-evident. The comments on Petitioner's silence

are especially damaging here, where his silence referred

to occurred at the moment of arrest. “We would be naive

if we failed to recognize that most laymei view an asser-

tion of the Fifth Amendment privilege as a badge of guilt.”

Walker v. United States, 404 }.2d 900, 903 (5th Cir. 1968).

2. Whether, in the absence of an evidentiary hearing,

or sufficient evidence in the record, counsel's failure

to object to prosecution testimony that Petitioner was

advised of his Miranda rights when arrested but chose

to remain silent, and not to make any statements,

and the judge’s comment upon this testimony, can

be held to be a waiver of Petitioner's Fifth Amendment

privilege or that said failure to object was part of

trial strategy?

The Pennsylvania procedural] rule is such that if the

admission of evidence is to be reviewed, an objection to

9

the introduction thereof, with stated reasons, should be

noted of record at trial:

“However, this general rule will not be applied

where there is basic and fundamental error which

affects the merits or justice of the case, or, as some

cases express it, offends against the fundamentals

of a fair and impartial trial or deprives the defendant

of that fundamental fairness essential to the very con-

cept of justice, and, hefice, denies him due process of

law guaranteed by the Fourteenth Amendment.”

Commonwealth v. Butler, 442 Pa. 30, 272 A.2d 916,

918 (1971).

After reiterating the general rule that objections should be

noted of record at trial, the Pennsylvania Supreme Court,

in Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765

( 1967), held:

“An insistence on compliance with this pro-

cedural regulation serves a legitimate state interest.

However, an individual foregoes the privilege of as-

serting a claim of violation of constitutional rights only

if he knowingly and intelligently decides not to insist

thereon, or if his counsel for purposes of trial strategy

decides not to raise the question.” 423 Pa. at 546, 226

A.2d at 768.

Thus, under Pennsylvania procedure, Petitioner did not

waive his constitutional right not to have his silence com-

mented upon because of his counsel's failure to object.

The Superior Court's contention that the error was

not so fundamental as to waive the requirement of a

timely objection is contrary to this Court’s holding in

Griffin—that comment on a defendant's silence was and

must ke fundamental error.

The question of when and how defaults in compliance

with state procedural rules can preclude the consideration

of a federal question by this Court is itself a federal

question. Henry v. Mississippi, 379 U.S. 443, 13 L.Ed.2d

10

408, 85 S.Ct. 564 (1965). This Court has repeatedly held

that an individual foregoes the privilege of asserting a

claim of violation of his constitutional rights only if he

knowingly and intelligently decides not to insist thereon,

or if his counsel, for purposes of trial strategy, decides

not to raise the question. Waiver of constitutional rights

is not lightly inferred. Every reasonable presumption

against waiver is indulged by the Court. Emspack v. United

States, 349 U.S. 190, 75 S.Ct. 687, 90 L.Ed. 997 (1955);

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.

1461, 146 A.L.R. 357 (1938).

Where fundamental constitutional rights are involved,

the courts will not rigidly apply procedural rules to the

derogation of constitutional rights. Fay v. Noia, 372 U.S.

391, 82 S.Ct. 822, 9 L.Ed.2d 837 (1963). The decision on

state grounds does not preclude review by this Court,

which must decide whether that decision is consistent

with due process requirements of the Fourteenth Amend-

ment. Lynumm v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9

L.Ed.2d 922 (1963); Kerr v. California, 374 U.S. 23, 83 S.Ct.

1623, 10 L.Ed.2d 726 (1963); Fahy v. Connecticut, 375 U.S.

85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

It is inconceivable that a defendant's failure to object

to the prosecution and trial judge’s comment on his

silence was part of trial strategy in a case where the

evidence wis circumstantial, for it is precisely this type

of case where such comment is most likely to be harmful.

Fontaine v. California, 390 U.S. 593, 85 S.Ct. 1229, 20

L.Ed.2d 154 (1968). There is insufficient evidence in the

record to establish that Petitioner waived his constitutional

rights not to have his silence commented upon or that

counsel's failure to object to the prosecutor's and judge's

comments were part of trial strategy. Repetition by Peti-

tioner’s counsel of a question already asked by the prose-

cutor is not, in itself, sufficient to prove waiver. In the

absence of any evidentiary hearing concerning waiver

or of sufficient evidence in the record to establish waiver,

this Court is not precluded from remedying the violation

of Petitioner's right te remain silent because of Petitioner's

1]

counsel's failure to object to the prosecutor's and judge’s

comments on his silence. Henry v. Mississippi, 379 U.S.

443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Fay v. Noia, 372

U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

3. Whether the Superior Court of Pennsulvania applied

the proper standard in determining that a jury's

awareness through Commonwealth testimony of a

defendant's silence ut time of arrest and constitu-

tional warnings is not, under the circumstances

existing in the present case, a defect so fundamental

as to affect the merits of justice of this case or to

offend against the fundamentals of a fair and impar-

tial trial? .

If one could look at the Superior Court's finding that

the error was not so fundamental as to offend justice as

meaning that the error was harmless under the circum-

stances of this case, then the Court did not apply the

proper standard in so determining. When fundamental

error has been committed, reversal is required unless the

error is harmless beyond a reasonable doubt. There is

no showing in the Record of Opinion of the Superior

Court of Pennsylv..nia that the Court applied the test that

the state has the burden of proving the error was harmless

beyond a reasonable doubt. Chapman v. State of Cali-

fornia, 386 U.S. 18, 87 S.Ct. 824 (1967).

4. Whether in a case where the evidence against the

defendant is circumstantial and there is other sub-

stantial evidence to support acquittal, the introduction

of testimony by the prosecution that Petitioner was

advised of his Miranda rights when arrested but chose

to remain silent, and not to make any statements, and

the judge's comment upon this testimony during his

charge to the jury, is harmless error beyond a reason-

able doubt?

That the error was fundamental is supported by this

Court's decisions in Anderson v. Nelson, 390 U.S. 523,

12

88 S.Ct. 1133 (1968); Fontaine v. California, 390 U.S.

593, 88 S.Ct. 1229 (1968). In these cases, this Court held

that a case in which the evidence against the defendant

is mainly circumstantial, is precisely that type of case

where commenting on a defendant's silence is most harm-

ful. When there is evidence supporting acquittal, the error

is not harmless beyond a reasonable doubt. The evidence

against Petitioner was circumstantial. There was also

ample evidence to support Petitioner's acquittal. The

Petitioner introduced an alibi defense, presenting four

(4) witnesses who placed him in York, Pennsylvania,

some 15-20 miles from the scene, at approximately the

same time the burglaries and larcenies were committed.

The Petitioner's co-defendant also introduced three (3)

alibi witnesses whose testimony was substantially the

same as those of Petitioner Howard's.

Petitioner should not be deprived of his liberty based

upon a conviction which is tainted by the violation of Peti-

tioner’s Fifth Amendment right to remain silent.

13

. CONCLUSION

The circumstances set forth in this Petition present

to the Court a case in which the Petitioner was denied the

full protection of his constitutional right to remain silent.

It is violative of the basic concepts of due process of law

that Petitioner be deprived of his liberty based upon a

conviction which may have been, at least in part, obtained

because of the violation of Petitioner’s Fifth Amendment

right. Such a result requires remedy by this Court.

The Petitioner accordingly prays that a Writ of Cer-

tiorari issue to review the judgment of the Supreme Court

of Pennsylvania in the instant case.

Respectfully submitted,

GEISENBERGER, ZIMMERMAN,

PFANNEBECKER & GIBBEL

By: : * ’ Ae ae

Robert L. Pfannebecker

Segre” I

‘ff ~F

° fo 4 /

* >< H , teen / :

a -

William A. Atlee, Jr.

Attorneys for Petitioner

14

APPENDIX A

| SUPREME COURT OF PENNSYLVANIA

| EASTERN DISTRICT

| Philadelphia 19107

| May 9, 1974

Richard P. Muffort, Esq., \

Geisenberger, Zimmerman,

Pfannebecker & Gibbel

212-12 East King Street

Lancaster, Pa. 17604

In re: Commonwealth of Pennsylvania v.

Jesse W. Howard, Jr., Petitioner

No. 1222 Allocatur Docket

Dear Mr. Muffort:

Please be advised that the Court has entered the follow-

ing Order on the Petition for Reconsideration of Denial of

Petition for Allowasice of Appeal:

“May 8, 1974

Petition Denied

Per Curiam.”

Very truly yours,

LAURA E. LITCHARD

Deputy Prothonotary

LEL:mb

CC: Robert A. Longo, Esq.

15

APPENDIX B

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Philadelphia 19107

March 25, 197-4

Richard P. Nuffert, Esq.,

Geisenberger, Zimmerman,

Pfannebecker & Gibbel

212-'2 East King Street

Lancaster, Pa. 17604

In re: Commonwealth of Pennsylvania v.

Jesse W. Howard, Jr., Petitioner

No. 1222 Allocatur Docket

(Nos. 1570/1573 October Term 1972)

Dear Mr. Nuffort:

Please be advised that the following Order has been

entered on both the Petition for Allowance of Appeal and

Peition for Supersedeas, in the above captioned matter:

“March 25, 1974

Petition Denied

Per Curiam.”

Yours very truly,

LAURA E. LITCHARD .

Deputy Prothonotary

LEL:mb

CC: Robert A. Longo, Esq.

16

APPENDIX C

IN THE SUPERIOR COURT OF PENNSYLVANIA

PHILADELPHIA DISTRICT

Nos. 1570, 1571, 1572, and 1573 October

Term, 1972.

COMMONWEALTH OF PENNSYLVANIA

v.

JESSE W. HOWARD, JR., Appellant

Appeal from the Judgment of Sentence and Orders of the

Court of Common Pleas, Criminal Division, of Lan-

caster County, at Nos. 1902, 1907, 1908, and 1911

of 1971.

Filed: November 16, 1973

OPINION BY JACOBS, J.:

This is an appeal from a judgment of sentence and

from orders imposing probation in a case in which the ap-

pellant was found guilty by a jury of two burglaries and

related larcenies and two conspiracies to commit said

burglaries.' A codefendant was found similarly guilty.

Issues presented involve the refusal of the lower court

to allow reargument of post-trial motions and to allow the

appellant to file additional post-trial motions nunc pro

tunc, the refusal of the lower court to grant a motion for

1. Docket entries indicate that for one of the burglaries and

larcenies, appellant was sentenced to pay a fine of $100, to pay costs

of prosecution, and to undergo imprisonment in a state correctional

institution for not less than 242 nor more than 5 years; for the

second, as well as for each conspiracy, he was placed on 5 years

concurrent probation, with a requirement that he pay court costs

and make restitution. As to the length of probation indicated with

respect to the conspiracies, see the text infra.

17

sequestration of witnesses, and the occurrence of testi-

monial and judicial references to appellant’s silence upon

arrest and notification of constitutional rights.

A short summary of the Commonwealth's and ap-

pellant’s cases will be useful to a disposition of the appeal.

Testimony of prosecution witnesses was to the effect that

two houses in Lancaster County, within three-quarters of

a mile of each other, were burglarized on July 19, 1971,

between 12:30 and 2:00 p.m. Certain items of personalty

were taken from each.

Two men, one relatively taller than the other and wear-

ing a yellow shirt, the other wearing a light shirt, were

placed in back of one of the houses shortly before discovery

of the burglary, by two residents of the house and their

son, who observed them from a distance. Between 3 and 4

hours later, police intercepted a truck in which the appel-

lant and his codefendant were passengers a few miles from

the crimes. The driver of the truck had previously observed

the two passengers as pedestrians, noted that their dress

matched that of the men described above, and notified

police that he would give them a ride.? Appellant was the

shorter of the two and wore a white T-shirt. Both men were

arrested.

Under the seat of the truck were found three silver

dollars. A resident of the house burglarized around the

same time as the house at which the men were sighted

testified that among other items taken from his residence

were three silver dollars; the two dates which he was able

to recall of such coins matched those of two of the dollars

taken from the truck. A ring which was said to have drop-

ped from the truck when its door was slammed and to have

been later shown to the same resident for identification

was stated by him to have been one taken from his house.

A state policeman testified as to similarities between

a heel print on a kicked-in door of the house at which the

2. The driver was a relative of the individuals mentioned in

the text as having observed the two men in back of the burglarized

house; he had been informed of the men’s dress.

ow

18

men were sighted and the heel of the right shoe of appel-—

lant’s companion and codefendant. A resident of one of the

houses stated that he thought that the ground had been

dry before the burglary, but was not certain; a resident

of the other house said that he was certain that it had been

wet at the pertinent time.

Testimony presented by the defense, through a num-

ber of witnesses, was to the effect that the appellant had

been in the city of York, York County, at the time of the

burglaries. Neither appellant nor the codefendant testi-

fied.*

Following jury verdicts in the case, the appellant's

attorney made motions in arrest of judgment and for a

new trial. The motions were subsequently denied. Prior

to sentencing, a new attorney for appellant sought leave

to file new post-trial motions nunc pro tunc and for

reargument, contending, according to appellant's brief

on appeal, that a lack of diligence in the prior counsel's

handling of the motions improperly penalized the appel-

lant. The request was denied. On appeal, appellant

requests this Court to consider two issues, neither of

which his new counsel was permitted to press upon the

lower court: whether the lower court erred in denying

appellant's motion for sequestration of witnesses at the

initiation of trial and whether a witness’ statement that

appellant had remained silent upon being arrested and

notified of his constitutional rights,4 and the judge's

3. No attempt has been made in this opinion to summarize

the evidence with the degree of completeness or detail necessary

for the disposition of issues other than those raised by the

appellant.

. 4. On direct examination, a Commonwealth witness and

police officer testified as to the constitutional rights he had read

to the appellant and his codefendant upon arrest. He added:

“And I asked them the following questions: ‘Do you

understand each of these rights as | have explained them to

you?’

“Having these rights in mind do you wish to talk to us?’

“*No.’ The answers were not ‘no’ but they did not wish to

talk to us or make any statement—

~

19

reference to this testimony in summarizing the evidence

constitute grounds for reversal.*

Even should it be assumed that the two issues were

not waived by appellant in the post-trial motion process,

we are persuaded that he can not prevail on either one.

“[T]he question of sequestration of witnesses is left

largely to the discretion of the trial judge and his decision

thereon will be reversed only for a clear abuse of discre-

tion.” Commonwealth v. Kravitz, 400 Pa. 198, 218, 161

A.2d 861, 870 (1960), cert. denied, 365 U.S. 846 (1961). See

Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 91511952);

Commonwealth v. Sloat, 298 Pa. 10, 147 A. 834 (1929).

Witness sequestration is normally impractical’ or inad-

visable, except in unusual circumstances. Commonwealth

v. Kravitz, supra. The fact that evidence in a case is

circumstantial does not in itself mandate sequestration,"

nor do the identifications in the present case based upon

clothing, or the conclusion of one witness that another

was mistaken as to the dampness of the ground at the

time of the burglaries, constitute sufficiently unusual

circumstances to permit the finding of a clear abuse of

discretion in the lower court's sequestration ruling.

The officer testified that the appellant and his codefendant

indicated that they understood the rights as read to them.

5. They {appellant and his codefendant] were advised of

their constitutional rights and neither of them wished to say

anything, which is their privilege, their constitutional right.”

6. In view of our determination tnat the appellant's arguments

on the two issues lack merit, it 1s unnecessary to determine the

propriety of the lower court's refusal to permit post-trial motions

nunc pro tunc and reargument. No harm has resulted to the appel-

lant from the refusal.

7. The lower court, in disposing of appellant's motion, stated

that he had no “place to put [the witnesses|.” The attorney for

appellant's codefendant suggested that perhaps the hall could be

utilized, but the judge concluded chat there was insufficient room

there.

8. See Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861

(1960), cert. denied, 365 U.S. 846 (1961) (refusal to sequester wit-

nesses in murder case in which evidence was circumstantial

upheld).

20

With regard to the second issue raised, it may be true

that a policeman’s statement on direct examination that

appellant had remained silent when arrested and advised

of his rights, and the judge's recitation of that testimony

in his charge, were objectionable.’ But the record

reveals that not only was no objection to the testimony

made at the time of occurrence, but the appellant's

attorney intentionally elicited the same testimony on

cross-examination;'® and the record contains no specific

objection to the judge’s reference as now complained’ of.

“As a general rule, if the admission of evidence is to be

reviewed, an objection to the introduction thereof, with

stated reasons, should be noted of record at trial.”

Commonwealth v. Jefferson, 423 Pa. 541, 546, 226 A.2d

765, 768 (1967). And under Pa. R. Crim. P. 1119(b),

effective August 1, 1968,'! “[nJo portions of the charge

nor omissions therefrom may be assigned as error, unless

specific objections are made thereto before ‘the jury

retires to deliberate.” See Commonwealth v. Fell, — Pa.

—, — A.2d — (1973).

Aithough it has been held that the failure to object

to admission of evidence and to specific errors in the

court’s charge will be overlooked in the case of funda-

mental error,'? a jury's awareness through Common-

9. See Commonwealth v. Haideman, 499 Pa. 367, 296 A.2d

765 (1972) (testimonial reference to accused's silence and request

for lawyer at time of arrest held violation of accused's Fifth Amend-

ment right).

10. “Q. Now, you testified here that you read Mr. Howard

his rights and you advised him that any thing he was going to

Say you were going to use against him?

“A. Yes, sir.

“Q. And he didn’t say anything?

“A. No, sir, he didn't.”

11. The trial in the present case occurred in March of 1972.

12. Commonwealth v. Johnson, 402 Pa. 479, 167 A.2d 511

(1961) (failure of counsel to object to admission of certain inadmis-

sible Commonwealth psychiatric evidence held unimportant in

view of basic nature of defect); Commonwealth v. Zapata, 447 Pa.

Sd 21

wealth testimony of a defendant's silence at time of arrest

and constitutional warnings is not, under the circum-

stances existing in the present case and without more,

a defect so fundamental! as to affect the merits or justice

of the case or to offend against the fundamentals of a fair

and impartial trial. See Commonwealth v. Williams, 224

Pa. Superior Ct. 298, 307 A.2d 289 (1973). Nor do we

believe that the judge’s recapitulation of this testimony,

which the appellant had succeeded in repeating on cross-

examination, was so unfair as to require invalidation of

the trial.

It does not aid the appellant that a constitutional

issue will not be deemed waived at trial if it is founded

upon legal principles announced subsequent to trial'*

and if the failure to raise it did not result from trial

strategy.'* Even if it is assumed that the legal principles

upon which the issue under discussion is premised were

announced subsequent to trial,'> the fact that appellant's

trial counsel intentionally elicited the testimony now

being objected to indicates that he felt it was beneficial

to his client. It appears to us that the failure of appellant

to say anything which would aid the prosecution when

arrested may have been considered exculpatory by his

322, 290 A.2d 114 (1972) (Pennsylvania said to employ rule that

appellate review will be afforded claims of error in court's charge

despite absence of objection at trial if error is basic and funda-

mental).

13. See Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d

765 (1967), interpreted in Commonwealth v. Simon, 446 Pa. 215,

285 A.2d 861 (1971).

14. Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765

(1967).

15. Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765

(1972), summarized in note 9, supra, which is relied upon by the

appellant was decided subsequent to trial in this case; an earlier

contrary decision in Haideman, followed by reargument, was

handed down prior to the trial in the present case. 284 A.2d 757

(Pa. 1971). The principles upon which the final decision in Haide-

man was based arose in Griffin v. California, 380 U.S. 609 (1965),

and Miranda v. Arizona, 384 U.S. 436 (1966).

22

counsel in view of the concurrent absence of any items

of evidence on his person and the circumstantial nature

of the case against him.

Although the appellant is not therefore entitled to a

reversal, an examination of the docket entries in the

present case indicates that for each act of conspiracy ap-

pellant was placed on 5 years’ probation, the probations

to be concurrent with a sentence imposed on one of the

burglaries and larcenies. If the entries are correct, an

error has occurred. Since the maximum period of

imprisonment for each conspiracy, under the Act of June

24, 1939, P.L. 872, §302, 18 P.S” §4302, repealed, Act of

December 6, 1972, P. L. —, No. 334, §5, was 2 years, the

period of probation indicated for each conspiracy would

be excessive by 3 years and should be accordingly

reduced. See Act of August 6, 1941, P.L. 861, §25, 61 P.S.

§331.25; Act of June 19, 1911, P.L. 1055, §1 et seq., as

amended, 19 P.S. §1051 et seq.; Commonwealth v. Duff,

414 Pa. 471, 200 A.2d 773 (1964).

The judgment of sentence at No. 1902 (burglary and

larceny) and the order at No. 1907 of 1971 (burglary and

larceny) are affirmed. To the extent that either or both of

the orders at Nos. 1908 of 1971 (conspiracy) and 1911 of

1971 (conspiracy) provide for periods of probation in

excess of 2 years, they are modified by the substitution

of 2 years’ probation for the incorrect period(s), and as

modified are affirmed.

HOFFMAN, CERCONE, and SPAETH, JJ., concur in

the result.

‘i