Commonwealth v. Vallone

We allowed an appeal by the Commonwealth in this case because there is involved the proper interpretation and application of a rule of evidence which is of extreme importance, especially in its effect upon methods of criminal investigation by law enforcement officers.

Defendant was indicted under the Act of June 24, 1939, P. L. 872, section 517, for knowingly transporting a female for the purpose of prostitution. At the trial the court admitted testimony given by a member of the Pennsylvania Motor Police to the effect that defendant, after his arrest, was brought from jail to the district attorney's office where there were present, in addition to the witness and the girl, the district attorney's secretary and a detective; that the young woman, under questioning, told in detail of her transportation by defendant from one place to another and of having given him money received by her as the wages of prostitution; that defendant said nothing and did not deny any of the statements made by the girl in his presence.

Defendant was convicted and sentenced. A reading of the record leads irresistibly to the conclusion that he was guilty of the repulsive crime with which he was charged.¹ Because, however, of the testimony given by the motor policeman the Superior Court (Commonwealth v. Vallone, 151 Pa. Super. 431, 30 A.2d 229) granted a new trial.²

The rule of evidence is well established that, when a statement made in the presence and hearing of a person is incriminating in character and naturally calls for a denial but is not challenged or contradicted by the accused although he has opportunity and liberty to speak, the statement and the fact of his failure to deny it are admissible in evidence as an implied admission of the truth of the charges thus made. The justification of this rule is to be sought in the age-long experience of mankind that ordinarily an innocent person will spontaneously repel false accusations against him, and that a failure to do so is therefore some indication of guilt. Of course, it is far from conclusive; it is analogous to the rule which permits evidence of the flight of the accused, his demeanor and conduct when charged with crime or taken into custody, and other acts and circumstances indicating his reaction to the situation in which he is involved. The accusatory statement, being hearsay, is not admissible as evidence in itself of the facts which it asserts, but merely to show what the charges were to which defendant offered no denial; its probative force is derived, not from the credibility of the accuser, but from the silence of the accused in response to it.

The Superior Court, while fully recognizing the general rule, deemed it inapplicable because of the circumstances which prevailed when the girl's statement was made and which it enumerated as follows: (1) the meeting was "deliberately staged" for the purpose of procuring evidence; (2) it was a relatively formal proceeding; (3) defendant was under arrest at the time; (4) he was there under compulsion; (5) the others present were "hostile" to him; (6) he was not asked any questions until after the meeting had been concluded. In our opinion these circumstances were important factors for the consideration of the jury in determining the weight to be given to the defendant's silence under accusation, but they do not, either singly or collectively, impair the admissibility of the evidence.

The view taken by the Superior Court is not justified by precedent. The cases are abundant in which such evidence was received where the incriminating statement had been made in the presence of the accused after his arrest and while in custody;³ for example: Commonwealth v. Aston, 227 Pa. 112, 75 A. 1019;Commonwealth v. Ballon, 229 Pa. 323, 78 A. 831; Commonwealth v.DePalma, 268 Pa. 25, 110 A. 756; Commonwealth v. Carelli,281 Pa. 602, 127 A. 305; Commonwealth v. Rose, 327 Pa. 220,193 A. 17; Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401;Commonwealth v. Murphy, 92 Pa. Super. 139. In none of these cases, nor in Commonwealth v. Weigand, 134 Pa. Super. 603, 5 A.2d 385, was the accused present voluntarily at the interview in which the accusatory statement was made, the meetings were quite as formal as in the present instance, and the persons who did the interrogating were law enforcement officers. If those who here participated can be said to have been "hostile" there is no reason for assuming they were more so than the chief of police in Commonwealth v. Aston, 227 Pa. 112, 75 A. 1019, or the district attorney in Commonwealth v. Rose, 327 Pa. 220, 223, 193 A. 17,18, and Commonwealth v. Karmendi, 328 Pa. 321, 335, 195 A. 62,67, 68, or the chief of county detectives in Commonwealth v.Petrillo, 341 Pa. 209, 227, 228, 19 A.2d 288, 297, or the police in Commonwealth v. Beati and Burrell, 86 Pa. Super. 567, and Commonwealth v. Murphy, 92 Pa. Super. 139, or the detectives in Commonwealth v. Weigand, 134 Pa. Super. 603, 5 A.2d 385. Only where the incriminating statement is made in the course of a judicial hearing has it been held that the silence of the accused is not admissible in evidence against him: Commonwealth v. Zorambo, 205 Pa. 109, 54 A. 716. As to the "staging" of the meeting, a planned attempt to obtain evidence concerning a crime already committed has never been held in this jurisdiction to render the evidence inadmissible. Nor is it of controlling importance whether the accused is expressly invited to admit or deny the charges made in his presence.

Our conclusion, as already indicated, is that the view adopted by the Superior Court errs in its failure to distinguish between the competency of the evidence and the weight that should be attributed to it by the jury. Undoubtedly it is evidence of such a nature as to require that it be appraised with caution, and if it be referred to at all by the trial judge in his charge he should so instruct the jury. Persons do not all react the same way in identical situations; where one is emotional, impulsive and quick to assert his rights, another may be timid and easily cowed, especially in the presence of officers of the law; the rule reflects only in the manner in which the average man is apt to conduct himself in such a situation. Similarly in regard to flight, although generally "the wicked flee when no man pursueth, but the righteous are bold as a lion," there are some people who, though guiltless of wrong-doing, have a deep-seated fear of policemen and the processes of the law. While not a bar to the admissibility of the evidence, the fact that the person accused was under arrest and that the charges against him were made by or in the presence of officials is to be taken into consideration by the jury in determining whether his standing mute should give rise to an inference of guilt. The only questions for the court in passing upon the admissibility of the evidence are whether the statements made in the presence and hearing of the accused were such as would naturally call for a denial and whether it was reasonably apparent to him that he had the opportunity and the liberty to speak; any reasons advanced by him to explain his failure to do so are then for the jury. "The probative weight to be attached to evidence of this character is peculiarly a question for the jury to decide in the light of the provocative character of the statements, the character of the surrounding circumstances . . ., and any other matters explanatory of the failure of the accused to speak": 20 Am. Jur. § 1197, pp. 1049, 1050. "It is clear that no particular conduct or acquiescence can be classed as constituting a proper or improper admission, and hence it is practically impossible for a court to charge, as a matter of law, what conduct or acquiescence constitutes, or does not constitute, an admission. It is equally clear that the jury must pass upon the question, as a matter of fact, to determine its credibility, as in all other cases of circumstantial evidence": Wharton's Criminal Evidence (11th ed.) sec. 665, p. 1107.

The order of the Superior Court granting defendant a new trial is reversed, and the judgment and sentence of the Courts of Oyer and Terminer and Quarter Sessions of Northampton County are affirmed.

¹ The girl testified at the trial to the same facts as those stated by her in the presence of defendant in the district attorney's office.

² The Superior Court referred in its opinion to the fact that during the trial one of defendant's witnesses was arrested and kept in confinement overnight. It properly condemned this action, which, however, had not been presented in the trial court as a reason for a new trial nor assigned as error in the Superior Court.

³ In fairness it should be noted that several jurisdictions refuse to apply the rule after arrest has taken place. Pennsylvania, however, has consistently stood with those which do not recognize any distinction in that regard.