# Petition for Writ of Certiorari — Howard v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 900

## Text

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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

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)

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0461%3A1. Public record. Not legal advice.