Commonwealth v. Davis

Opinion by

Mr. Justice Roberts,

Appellant, Curtis Davis, was arrested in December of 1968 and charged with murder, voluntary manslaughter, involuntary manslaughter and robbery. A timely filed pre-trial motion to suppress evidence was denied. Thereafter, on September 25, 1969, appellant was adjudged guilty, by a jury, of murder, voluntary manslaughter and two counts of robbery. Appellant was sentenced, by the jury, to death on the murder conviction, and from ten to twenty years imprisonment, by the court, on the robbery convictions. Post-trial motions in arrest of judgment and for a new trial were denied. This direct appeal followed. We now reverse and remand for a new trial.

Appellant contends that the assistant district attorney committed reversible error by attempting to create an impermissible adverse inference in the minds of the jurors regarding appellant’s exercise of his Fifth Amendment rights at trial. Appellant alleges that this was accomplished by the prosecutor’s persistent references in his closing argument, over objection, to the evidence against the defendant being “uncontroverted.” Review of the record supports appellant’s contention that the prosecution’s repeated use of the words “uncontroverted” and “uncontroverted fact” created an adverse inference prohibited by the Fifth Amendment to the United States Constitution, Article 1, §9 of the Pennsylvania Constitution, and the Act of May 23, 1887.

It is well settled that the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964), forbids either comment by the prosecution on the accused’s silence at trial or instructions by the court that such is evidence of guilt. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965). “Upon the present record, [we] believe that the prosecutorial comment about the ‘uncontradicted’ [or ‘uncontroverted’] nature of the Commonwealth’s case runs directly afoul of the Griffin prohibition.” Commonwealth v. Allen, 445 Pa. 156, 159, 281 A. 2d 634, 635 (1971) (Roberts, J., dissenting from an opinionless per curiam affirmance, joined by Eag-en, J., and O’Brien, J.).

Here, where appellant neither testified at trial nor offered any other defense, the “. . . prosecutor’s statement [s] implied that the . . . [defendant himself ivas] the only [one] who could and should have denied the charges against [him]. The jury might reasonably have inferred from [these] statement [s] that [his] failure to do so was evidence of [his] guilt.” Commonwealth v. Reichard, 211 Pa. Superior Ct. 55, 60, 233 A. 2d 603, 606 (1967). Such an inference is patently contrary to the mandate of Griffin, supra.

As th.e First Circuit recently stated in United States v. Flannery, 451 F. 2d 880, 881-82 (1971) : “. . . [W]e [have] held that for the government to say, in summation to the jury, that certain of its evidence was ‘uncontradicted,’ when contradiction would have required the defendant to take the stand, drew attention to his failure to do so, and hence was unconstitutional comment. Desmond v. United States, 1 Cir., 1965, 345 F. 2d 225. We do not adopt the reasoning of those courts which state, as it seems to us, ingenuously, that to say that the government’s witnesses’ testimony was uncontradicted is simply a statement of historical fact. There are many ‘facts’ which are benign in themselves. The difficulty is that such reference, when only the defendant could have contradicted, clearly calls to the jury’s mind the fact that he failed to testify.” (Emphasis added) (Footnotes omitted). Accord, United States v. Handman, 447 F. 2d 853 (7th Cir. 1971); United States ex rel. Leak v. Follette, 418 F. 2d 1266 (2d Cir. 1969), cert. denied, 397 U.S. 1050, 90 S. Ct. 1388; Rodriguez-Sandoval v. United States, 409 F. 2d 529 (1st Cir. 1969); Doty v. United States, 416 F. 2d 887 (10th Cir. 1968), vacated sub. nom., Epps v. United States, 401 U.S. 1006, 91 S. Ct. 1247 (1971); United States v. Lyon, 397 F. 2d 505 (7th Cir. 1968), cert. denied, sub. nom., Lysczyk v. United States, 393 U.S. 846, 89 S. Ct. 131; United States v. Parisi, 365 F. 2d 601, 607-09 (6th Cir. 1966), vacated sub. nom., O’Brien v. United States, 386 U.S. 345, 87 S. Ct. 1158 (1967); Peeples v. United States, 341 F. 2d 60, 64-65 (5th Cir. 1965), cert. denied, 380 U.S. 988, 85 S. Ct. 1362.

On this record, where appellant did not testify and offered no other witnesses or evidence at trial, it would be an act of sophistry to conclude that the remarks of the assistant district attorney could have been taken as anything other than a reference to the fact that appellant, and appellant alone, failed to rebut the evidence against him. The prosecutor’s attempt to have the jury equate appellant’s guilt with his silence at trial was improper. Such comments, even by implication, are violative of Griffin, supra. See also Hand-man, supra.

Not only were appellant’s rights under the United States Constitution violated, but also his rights under Article 1, §9 of the Pennsylvania Constitution, and the Act of May 23, 1887 which implements it. It is well settled that any comment by the prosecution or the court violates the Act of 1887 if it “. . . draws attention to or focuses on the fact that no one except the defendant can rebut the Commonwealth’s case. . . .” Reichard, supra at 58, 233 A. 2d at 604. It is obvious, on this record, that the prosecutor’s comments clearly did that which is prohibited by the Act. “We think the assistant district attorney went too far, both under the Act of 1887 and under the Fifth Amendment proscription as enunciated in Griffin.” Commonwealth v. Camm, 443 Pa. 253, 268, 277 A. 2d 325, 333 (1971).

We hold that the prosecutor’s comments were error, and also that they were harmful error, necessitating the grant of a new trial. On this record, the prosecution’s comments cannot be held to be “harmless beyond a reasonable doubt.”

Our analysis of the gravity and impact of the error is guided by two general precepts. First, “. . . before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). See Harrington v. California, 395 U.S. 250, 251, 89 S. Ct. 1726, 1727 (1969); Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056 (1972). This reasonable doubt standard reflects a fundamental belief that once constitutional error has been established, it is far worse to conclude incorrectly that the error was harmless than it is to conclude incorrectly that the error was reversible. Cf. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970).

The second general precept with which we approach the determination of whether a particular constitutional error was harmless is that the burden is on the Commonwealth to establish that the error was harmless. Chapman v. California, supra at 24, 26, 87 S. Ct. at 828, 829; Fontaine v. California, 390 U.S. 593, 596, 88 S. Ct. 1229, 1231 (1968). It should be noted that placing the burden on the Commonwealth is in accordance with “the original common-law harmless-error rule [that] put the burden on the beneficiary of the error either to prove that there ivas no injury or to suffer a reversal of his erroneously obtained judgment.” Chapman v. California, supra, 386 U.S. at 18,20-23, 87 S. Ct. at 828 (citing 1 Wigmore, Evidence, §21 (3d ed. 1940).

Keeping these precepts in mind, we must determine whether “there is a reasonable possibility” that the constitutional error “might have contributed to the conviction.” Chapman v. California, supra, 386 U.S. at 24, 87 S. Ct. at 828. If there is such a possibility, the constitutional error is reversible. But if there is no reasonable possibility that the constitutional error might have moved “the minds of an average jury” toward conviction, then it can be said that the error was harmless.

Cases subsequent to Chapman have established one exception to the general proposition that if there is a reasonable possibility that the constitutional error might have contributed to the conviction, the error cannot be harmless. That exception is presented by those cases where the “properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the . . . [constitutional error] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the . . . [constitutional error] was harmless error.” Schneble v. Florida, supra at 430, 92 S. Ct. at 1059; see Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726 (1969).

It should be emphasized that a conclusion that the properly admitted evidence is “so overwhelming,” and the prejudicial effect of the constitutional error is “so insignificant” by comparison, that it is clear beyond a reasonable doubt that the error is harmless, is not to be arrived at lightly. For the effect of such a conclusion is to affirm a conviction where it is conceded that an error of constitutional proportions contributed in some degree to the conviction. In addition, such a conclusion operates to undermine “the deterrent effect of such cases as Mapp v. Ohio; Griffin v. California; Miranda v. Arizona; United States v. Wade; and Bruton v. United States, on the actions of both police and prosecutors, not to speak of trial courts. . . .” Harrington v. California, supra, 395 U.S. at 255, 89 S. Ct. at 1729 (Brennan, J., dissenting) (citations omitted).

Applying these standards to the present case, we do not believe that the Commonwealth has established beyond a reasonable doubt that the constitutional error present in this case was harmless. The Commonwealth, during its closing address to the jury, thoroughly exploited appellant’s exercise of his Fifth Amendment right not to take the witness stand. The prosecutor argued that “'under the uncontroverted facts the Commonwealth has proved beyond a reasonable doubt that this defendant is guilty of murder in the first degree and robbery.” (Emphasis added.) The prosecutor also repeatedly used the term “uncontroverted” or “uncontroverted facts” at least three other times in referring to portions of the Commonwealth’s evidence. This argument was obviously calculated to move the jury toward conviction: “Indeed, the very persistence of the government in making these remarks is proof that it attached much importance to them.” Rodriguez-Bandoval, supra at 581. We must conclude that there is a reasonable possibility that the prosecutor’s unconstitutional argument “might have contributed to the conviction.”

We also do not believe that the evidence against appellant in this case can be characterized as “overwhelming.” The only witness who could definitely identify appellant at the trial had been unable to identify appellant at a pre-trial lineup. One other witness was unable to identify appellant at all. The murder weapon was linked to appellant only by showing that it was found at an apartment belonging to a woman described by one witness as appellant’s girl friend, an apartment to which appellant had a key and near which appellant’s car was observed some two and one-half hours after the shooting. Ownership of the weapon was never proved by the Commonwealth. The only other evidence against appellant was a tan hood and a dark jacket, found at the same apartment, which were by no means unique but which were similar to the hood and jacket which two eyewitnesses described the perpetrator as wearing. Although the case against appellant was reasonably strong, it nevertheless is certainly a case in which “honest, fair-minded jurors might very well have brought in not guilty verdicts.” Chapman v. California, supra, 386 U.S. at 26, 87 S. Ct. at 829.

The judgment of sentence is reversed and a new trial granted.

Mr. Justice Eagsn concurs in the result.

Mr. Chief Justice Jones dissents.

Appellant also contends that additional errors were committed by the trial court and that certain evidence, allegedly illegally seized, should have been suppressed. Appellant also challenges the legality of his arrest However, in view of our disposition, we need not decide these issues.

“No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U. S. Const Amend. V.

“[The accused] cannot be compelled to give evidence against himself . . . .” Pa. Const. Art. I, §9.

“Except defendants actually upon trial in a criminal court, any competent witness may be compelled to testify in any proceeding, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to criminate him; nor may the negleet or refusal of any defendant, actually upon trial in a criminal court, to offer himself as a witness be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial.” P. L. 158, §10, 19 P.S. §631.

“As the Supreme Court stated in Griffin, the presumption of innocence in favor of a defendant in a criminal case is seriously jeopardized by any comment concerning his silence. Realistically, the defendant’s words and actions will be viewed with a critical eye if he chooses to testify. ‘It is not everyone who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others, and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not everyone, however honest, who would, therefore, willingly be placed on the witness stand.’ Wilson v. United States, 149 U.S. 60 at 66 (1893). A defendant may refuse to testify for reasons wholly unrelated to his innocence or guilt. Consequently, permitting comment upon the defendant’s failure to testify subjects the accused to the hard choice of testifying or running the risk of a jury’s unwarranted inference of guilt from his silence.” Commonwealth v. Reichard, 211 Pa. Superior Ct. 55, 59-60, 233 A. 2d 603, 605 (1967) (footnotes omitted).

The use of the word “uncontroverted” in the prosecutor’s closing argument was error for another reason, since the defendant at trial need not affirmatively deny any allegation at all. There is always a jury question as to every issue, except those expressly conceded, on which the government has the burden. See, e.g., Minor v. United States, 445 F. 2d 637 (8th Cir. 1971) ; United States v. Alessio, 439 F. 2d 803 (1st Cir. 1971) ; DeCecco v. United States, 338 F. 2d 797 (1st Cir. 1984).

See notes 3 and 4, supra.

It should also be noted that federal standards govern what constitutional error must be considered prejudicial. Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 826-27 (1967).

Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 1728 (1969).

At one point in summation the prosecutor stated: “It is also uncontroverted that Curtis Davis received a paper bag from Mr. Darlak and said something, I can’t remember the exact word, but it is something like, I am going to give you this, or words to that effect, and then fired two shots in quick succession.

“You can find from this series of uncontroverted facts, members of the jury, that Mr. Davis, the defendant here, was in fact robbing Mr. Darlak at the time, . . .” Clearly, these statements could only have been made by the prosecutor in the hope that the jury would infer that appellant, by failing to testify, was admitting his guilt.

“In such a case we are unwilling to allow the government to act improperly and then avoid reversal by the unprovable assertion that grievous prejudice probably did not result.” Rodriguez-Sandoval v. United States, 409 F. 2d 529, 531 (1st Cir. 1969).