Commonwealth v. Edwards

BECK, Judge:

The sole issue in this appeal is whether appellant William C. Edwards is entitled to a new trial because the trial court instructed the jury, despite defense objection, that it must draw no adverse inference from appellant’s failure to testify. While it is clear that, pursuant to Commonwealth v. Rasheed, 392 Pa.Super. 280, 572 A.2d 1232 (1990) (en banc), the trial court’s instruction to the jury was error, we conclude that the error was harmless beyond a reasonable doubt. Therefore, the judgment of sentence is affirmed.

Appellant was convicted of third degree murder following a jury trial. Post-verdict motions were denied and appellant was sentenced to ten to twenty years imprisonment. The evidence which formed the basis for the conviction is as follows. The deceased, Mary Edwards, was appellant’s wife. On the day Mary Edwards was murdered, Mary Brown, the couples’ daughter, had been visiting for Thanksgiving dinner. Appellant and his wife had a variety of disagreements that night and when the deceased left to escort her daughter home, appellant allegedly threatened, “I will take care of you when you get home”. Ms. Brown did not see her mother alive again.

The next day, various family members tried unsuccessfully to contact Mary Edwards by phone. One daughter, Daisy, went to her mother’s home and looked through the mail slot. She could see appellant in a reclining chair. The family assembled and called the police. When the police broke in they found Mary Edwards dead on the kitchen floor. The police also found appellant in a reclining chair, apparently very intoxicated and unresponsive. There was blood on his socks and shoes. A .38 snub nose revolver was on the table next to appellant. The police also noted that there were no signs of a break-in and that there was a German Shepard dog in the yard. An almost-empty bottle of vodka was on the dining room table. The police could not rouse appellant and he was taken to the hospital.

Ballistics testimony indicated that at least five rounds were fired from the recovered .38 revolver. Three spent shots were removed from the deceased’s body and two spent cartridges were found near her on the kitchen floor. No fingerprints could be obtained from the gun. The blood on appellant’s socks and shoes matched the decedent’s blood type.

The defense presented no evidence. However, in closing argument to the jury, defense counsel argued that the Commonwealth failed to establish that it had been appellant who shot Mary Edwards and theorized:

You have a man found in the same house as the body. At some point after she had been shot and he was in the general vicinity and nothing more has been established.

You have a person who is in a recliner who would have been passed out for hour upon hour. A person who potentially might have been able to even stagger into the kitchen area where he hits blood on his sock before he goes back to the recliner.

He could have been in that recliner three hours or for 12 hours.

Something had happened in that 12-hour period. If something happened would William Edwards be aware of it? Most likely not. He was unaware of anything going on around him.

The jury was instructed on first degree murder, third degree murder and voluntary manslaughter. The jury was charged that voluntary intoxication could reduce murder in the first degree to third degree murder. The jury was also charged that to be voluntary manslaughter, the killing would have to be in the “heat of passion”. The jury convicted appellant of third degree murder.

It is undisputed that defense counsel requested the court not to instruct the jury on the principle that “no adverse inference” could be drawn from appellant’s failure to take the witness stand. Despite the request, the trial court instructed the jury as follows:

As he sits here with us this morning William Edwards is innocent of the charge of criminal homicide. He remains innocent unless and until you conclude that the Commonwealth has proven him guilty beyond a reasonable doubt.

He has no duty to defend himself. He does not have to prove his innocence. The Commonwealth has the burden of proving his guilt.

He has elected in this case to present no defense. And he has elected not to testify. That is his right, and you may draw no inference adverse to him from that election; for in a criminal trial under our system of justice the accused does not have to testify in a matter which he is accused.

The Commonwealth concedes that, in view of the principle enunciated in this court’s en banc opinion in Commonwealth v. Rasheed, supra, it was error for the trial court to give the no-adverse-inference charge in the face of a defense request that the charge be omitted. The Commonwealth argues, however, that in light of the circumstances of this case, the error was harmless beyond a reasonable doubt. We agree.

The same case which articulated the rule that it is error for the court to give a no-adverse-inference charge in spite of a contrary defense request, also instructs us that the inquiry does not end there. In Rasheed this court stressed that we must then “look at the entire record of the trial at which the error occurred to determine if it is harmless error.” 392 Pa.Super. at 285, 572 A.2d at 1235. With respect to the law of harmless error, this court has noted:

The harmless error doctrine reflects a fundamental principle which we think is particularly apt here, i.e., ‘that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the fundamental fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). If this court can conclude beyond a reasonable doubt that the error complained of did not contribute to the verdict, no new trial is required.

Commonwealth v. Weisman, 401 Pa.Super. 62, 71, 584 A.2d 980, 985 (1990), appeal denied, 528 Pa. 644, 600 A.2d 195 (1991).

More specifically, the standard we use to judge the impact of the error in cases where a trial court ignores a defense preference that a no-adverse-inference instruction be omitted was articulated in Rasheed. In Rasheed, we stated that, “we must discern if the error in the charge, in any way, contributed to the verdict so as to render it less than a true verdict.” 392 Pa.Super. at 287, 572 A.2d at 1236. Not only did the court in Rasheed refuse to find that in every case the giving of such an instruction over defense objection is reversible error per se, in addition it found that in that very case the error in instructing the jury was harmless. We see nothing in the instant case which distinguishes it from Rasheed. In fact, we find that the argument for a finding of harmlessness is even more persuasive.

It is the Commonwealth’s burden to persuade this court that the error in the case was harmless beyond a reasonable doubt. In fact, the mere existence of the stringent “reasonable doubt” standard for finding harmless error casts the burden on the Commonwealth and already has provided the defendant (i.e., the one allegedly harmed by the error) with the benefit of the doubt.

In order to carry its burden the Commonwealth argues that, given the circumstances of this case, there was no reasonable possibility that the error contributed to the verdict. This argument is properly based on the facts of the case, the nature of the error, the defense strategy and closing argument and the overall impact of the no-adverse-inference instruction. The Commonwealth has also, in part, sustained its burden to establish harmlessness by effectively rebutting all of appellant’s arguments that the error was reversible. The burden of the Commonwealth is to persuade the reviewing court that based on the record a true verdict was reached. In fact, one commentator, in discussing the issue of “burdens” in the harmless error context, noted:

Chief Justice Traynor of the California Supreme Court suggested that the entire issue of presumptions and burdens was largely meaningless in the harmless error context. In evaluating what effect, if any, an error had on the jury’s verdict, the appellate court may look only to the record before it. The function of a party carrying the burden is simply to suggest, in light of that record, how prejudice may or may not have occurred.

LaFave and Israel, Criminal Procedure, § 26.6, 999 (1985) (citation omitted).

The Commonwealth has fully, and in our view persuasively, fulfilled its function in aiding this court in its harmlessness determination.

As noted above, we find the argument for finding harmless error here even more compelling than it was in Rasheed. In Rasheed, the charge was rape and the offense was alleged to have occurred at knife-point at the complainant’s apartment. Rasheed and the complainant had known one another very slightly before the attack. Prior to the assault, complainant had invited Rasheed into her apartment for a beer. While corroborating physical evidence of intercourse was offered by the Commonwealth, the knife was never recovered and the use of the knife constituted the forcible compulsion aspect of the rape. Rasheed did not testify. The trial court instructed the jury that it could draw no adverse inference from the defendant’s silence even though defense counsel opposed the instruction. However, although the Rasheed court held the giving of the instruction was error, it also found it to be harmless beyond a reasonable doubt. The Rasheed court stated that “[although the charge may have called attention to the fact that the appellant did not testify, no evidence was offered on behalf of the defendant and the charge did not call the jury’s attention to anything of which it was not aware”. 392 Pa.Super. at 287, 572 A.2d at 1236.

Precisely the same conclusion must be reached in the instant case. No evidence was offered on appellant’s behalf here. We find appellant’s argument that the jury’s verdict of third degree murder “may have been a compromise” and that the Commonwealth’s case was “significantly bolstered by the court-underscored silence of Mr. Edwards” wholly unpersuasive. The third degree murder verdict completely comported with the evidence of voluntary intoxication coupled with a killing done with malice, although the record also contains evidence from which the jury could have inferred premeditation. The record does not support the conjectural suggestion that the jury “compromised” in reaching its verdict, even if we were to assume, as does appellant, that the court’s instruction did highlight appellant’s silence.

Furthermore, in our view, it is highly speculative to suggest that in the absence of the court’s instruction the jury would not have noticed or remembered that appellant did not testify. Appellant argues that the judge’s instruction “highlighted” his silence. On this point, we agree with Judge Kelly who stated in his concurring and dissenting opinion in Rasheed:

[W]e can hardly expect a jury of twelve reasonably intelligent citizens to overlook the fact that the defendant, whose fate they are to determine, sat silent throughout the proceedings.

392 Pa.Super. at 291, 572 A.2d at 1238 (Kelly, J., concurring and dissenting).

The rationale underlying the cautionary instruction is the fear that the jury will be “left free to draw negative inferences from the defendant’s decision to exercise his or her constitutional privilege” by not testifying. Commonwealth v. Lewis, 528 Pa. 440, 450, 598 A.2d 975, 980 (1991). It is the protection against this “insidious danger” which underlies the supreme court’s recent, stern admonition in Lewis that “(jjuries must be told in no uncertain terms that no adverse inference may be drawn from a defendant's failure to take the stand____”. Id.

Here, the trial court eliminated, insofar as is possible, the “insidious danger” that the jury would negatively assess appellant’s silence against him by instructing them that the law forbids them to do so. To conclude otherwise would be to assume that the jury failed to adhere to the court’s instructions. Thus, by giving the no-adverse-inference instruction, albeit in the face of defense opposition, the trial court protected against the primary danger associated with appellant’s exercise of his constitutional right to remain silent.

Having eliminated the danger that appellant’s silence would be used against him by the giving of a cautionary instruction, what harm to the integrity of the jury’s verdict remains from the trial court’s failure to honor appellant’s request? In light of the particular circumstances of this case, it is especially unlikely that the jury even awaited appellant’s “version” of the events. When the police and neighbors discovered the victim's body, appellant was comatose in the apartment apparently from intoxication. He remained in that state for quite some time. The thrust of the defense was that appellant was not the killer because he was too incapacitated to have shot his wife or even to know what had happened. Appellant’s chief argument was that appellant “was unaware of anything going on around him”, that anyone could have come in to kill the victim without appellant knowing it and that, therefore, he was incognizant of how the death actually occurred. Therefore, appellant’s silence was entirely consistent with his theory of the case and the jury would not reasonably have expected exculpatory testimony from his lips. Certainly, if this court found harmless error in Rasheed, where the defendant was the only witness capable of giving evidence challenging the complainant’s claim of forcible intercourse and in support of a consent defense, the error is harmless here, where appellant’s failure to take the stand was a natural outgrowth of his own defense strategy.

Appellant conjectures that the jury may have compromised on the verdict. We find this type of speculation unpersuasive. The jury was instructed regarding the Commonwealth’s unshifting burden of proof and told that it could draw no negative inferences from defendant’s choice not to testify. The defense was that the Commonwealth’s case was purely circumstantial and that appellant knew nothing of the crime. Nothing in the case indicates that the jury was grappling with any issues regarding intent or provocation which even arguably could have reduced its verdict to voluntary manslaughter. Other than the voluntary intoxication evidence which apparently reduced the verdict from first degree murder to third degree murder, there was not another piece of evidence which could have led the jury reasonably to conclude that appellant killed in the heat of passion or was provoked. We find it impossible to conclude that the trial court’s error in giving the cautionary instruction could have, in any way, contributed to the verdict or negatively influenced the jury’s deliberations.

Judgment of sentence affirmed.

JOHNSON, J., files a dissenting Opinion.