Opinion
November 14, 1963.
November 27, 1963.
Criminal Law — Evidence — Admission by silence or tacit admission — Failure to deny incriminating statements of confederates — Petition to suppress evidence — Alleged illegal arrest — Waiver of irregularities by entry of bail.
1. Where it appeared that, at the trial of defendant on charges of burglary and larceny, the prosecution introduced in evidence against defendant, over her objection, incriminating statements made by two of her alleged confederates in the crime, to which she had made no denial when they were read to her by police officers after they had taken her into custody; that before retrial defendant filed a petition to suppress the evidence of the tacit admissions, on the ground that they were the fruits of an unlawful arrest; and that the court below entered an order dismissing the petition without prejudice; it was Held that (a) the evidence objected to was admissible; and (b) the part of the order of the court below denying the petition to suppress the evidence should be affirmed, but the remainder of the order reversed.
2. Even though the warrant and arrest may have been irregular, a defendant by his acts waives such irregularities by entering bail or recognizance.
3. 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.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 400, Oct. T., 1963, from order of Court of Quarter Sessions of Schuylkill County, May T., 1960, No. 419, in case of Commonwealth of Pennsylvania v. Lillian Mildred Reis. Order affirmed in part and reversed in part.
Proceeding upon petition of defendant to suppress evidence prior to retrial on charges of burglary and larceny.
Order entered dismissing petition without prejudice, opinion by STAUDENMEIER, J. Commonwealth appealed.
Harry W. Lightstone, District Attorney, for appellant.
Robert F. Simone, for appellee.
Argued November 14, 1963.
This is an appeal taken by the district attorney from an order entered by the Court of Quarter Sessions of Schuylkill County which dismissed, without prejudice, a petition filed by the defendant to suppress evidence. The court below invited the defendant to raise her objection again at trial of the case.
On August 25, 1960, defendant was indicted by the grand jury on charges of burglary and larceny. The case was attached for trial on September 19, 1961. The jury could not reach a verdict, and on October 18, 1961, it was discharged and a mistrial was declared. At the trial the prosecution introduced in evidence against the defendant, over her objection, incriminatory statements made by two of her alleged confederates in the crime. They were introduced under the doctrine of "admission by silence" or "tacit admissions." Both statements were read to defendant by police officers after they had taken her into custody. The Commonwealth witnesses testified she made no denial to the incriminatory material in these statements but remained silent.
On December 31, 1962, before the case attached for retrial, defendant filed a petition to suppress the evidence. The evidence sought to be suppressed was the tacit admissions. A motion to dismiss defendant's petition was filed by the district attorney. A hearing was held on the petition and answer on February 25, 1963. On September 4, 1963, the court below filed an opinion denying the prayer of the petitioner that the evidence be suppressed. Even though the warrant and arrest may have been irregular, a defendant by his acts waives such irregularities by entering bail or recognizance. Com. v. Hill, 166 Pa. Super. 388, 393, 71 A.2d 812. However, because of the long delay in this case, we have reviewed the principal issue raised in the petition to suppress the evidence and found it without merit. The evidence objected to is admissible. Com. v. Vallone, 347 Pa. 419, 421, 32 A.2d 889; Com. v. Bolish, 381 Pa. 500, 522, 523, 113 A.2d 464; Com. ex rel. Stevens v. Myers, 398 Pa. 23, 25, 156 A.2d 527; Com. v. Johnson, 365 Pa. 303, 318, 74 A.2d 144.
There being no basis for the suppression of evidence, a retrial should be had without further delay.
The part of the order of the court below denying the petition to suppress the evidence is affirmed. The remainder of the order is reversed.