462 Pa. 244 - Commonwealth v. Triplett

EAGEN, Justice

¶1(dissenting).

¶2The trial in this case was nonjury. The evidence of guilt was overwhelming. Even assuming the trial court erred in permitting the appellant to be cross-examined concerning prior inconsistent statements which had been suppressed pretrial, I am convinced the error was harmless under the circumstances.

JONES, Chief Justice

¶3(dissenting).

¶4I agree with the dissenting view of my colleague, Mr. Justice Eagen, that there was no reversible error in this case in which a jury trial was waived. I would go further, however, and apply fully in this Commonwealth the doctrine of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) ,1Miranda warnings serve a deterrent function by virtue of the attached exclusionary remedy. “ [S] ufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” Harris, 401 U.S. at 225, 91 S.Ct. at 645. It can hardly be assumed that impermissible police activity will be encouraged by allow*255ing the prosecution to impeach the credibility of the defendant by use of suppressed tangible evidence and statements. The waiver by the defendant of his right against self-incrimination at trial is clearly one which is unforeseeable by the police during their investigation.

¶5The majority’s holding will only lead to the perpetration of obvious lies in court. The prosecution has already been penalized in its case in chief, and there is no reason that our exclusionary rules should be used as a tool to defraud the fact-finder at trial. I fear that the majority opinion puts the Court’s imprimatur upon perjury.2

¶6 *256Furthermore, in response to Mr. Justice Pomeroy’s concurring opinion, I am compelled to state that the Harrisrationale is applicable to a case not only where the inadmissible statement is a product of defective Miranda warnings but also where the confession is involuntary. If the Commonwealth utilizes a confession for impeachment purposes, it is open to the defendant on re-direct examination to rehabilitate himself by demonstrating the circumstances which allegedly resulted in the involuntary statement. Any statement to the contrary in Harrisand Oregon v. Hass, supra, note 2, was merely dicta. The admission of any statement under the Harrisrule is to effect credibility only and is not admitted to show the truth of such statement.

¶7. Harriswas a logical extension of the Walderrationale, which held that suppressed tangible evidence could be used to impeach the credibility of the accused. This Court approved the Walderdoctrine in Commonwealth v. Wright, 415 Pa. 55, 202 A.2d 79 (1964). Although Wrightstood for the proposition that the Waldercollateral use exception would not be extended to cover suppressed statements, in light of the United States Supreme Court’s more recent enunciations in Harris, this Court’s inconsistency seriously jeopardizes the continued vitality of Walderin this Commonwealth.

¶8. The New York rule adopted by the United States Supreme Court in Harrishas been adopted or cited with approval in the following jurisdictions: State v. Johnson, 109 Ariz. 70, 505 P.2d 241 (1973); Rooks v. State, 250 Ark. 561, 466 S.W.2d 478 (1971); People v. Acosta, 18 Cal.App.3d 895, 96 Cal.Rptr. 234 (1971); Jorgenson v. People, 174 Colo. 144, 482 P.2d 962 (1971); State v. Darwin, 29 Conn.Sup. 423, 290 A.2d 593 (Conn.Super.1972); Williams v. State, Del.Supr., 301 A.2d 88 (1973); State v. Retherford, 270 So.2d 363 (Fla.1972); Campbell v. State, 231 Ga. 69, 200 S.E. 2d 690 (1973); People v. Moore, 54 Ill.2d 33, 294 N.E.2d 297 (1973); Johnson v. State, Ind., 284 N.E.2d 517 (1972); State v. Martin, Iowa, 217 N.W.2d 536 (1974); State v. Osbey, 213 Kan. 564, 517 P.2d 141 (1974); State v. Williams, La., 271 So.2d 857 (1973); State v. Gervais, Me., 317 A.2d 796 (1974); Sabatini v. State, 14 Md.App. 431, 287 A.2d 511 (1972); Commonwealth v. Harris, Mass.App., 295 N.E.2d 687 (1973); People v. Graham, 386 Mich. 452, 192 N.W.2d 255 (1971); State v. Gabler, 294 Minn. 457, 199 N.W.2d 439 (1972); Sanders v. State, Miss., 260 So.2d 466 (1972); State v. Yowell, 513 S.W.2d 397 (Mo.1974); State v. Bazis, 190 Neb. 586, 210 N.W.2d 919 (1973); Stone v. Shea, 113 N.H. 174, 304 A.2d 647 (1973); State v. Davis, 127 N.J.Super. 55, 316 A.2d 61 (1974); State v. Evans, 17 N.C.App. 561, 195 S.E.2d 102 (1973); State v. Iverson, 187 N.W.2d 1 (N.D.1971); State v. Kassow, 28 Ohio St.2d 141, 277 N.E.2d 435 (1971); Criss v. State, 507 P.2d 935 (Okl.Cr.1973); Brewer v. State, Tenn., 501 S.W.2d 280 (1973); State v. Kish, 28 Utah 2d 430, 503 P.2d 1208 (1972); Riddell v. Rhay, 79 Wash.2d 248, 484 P.2d 907 (1971); Ameen v. State, 51 Wis.2d 175, 186 N.W.2d 206 (1971). Contra, State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971). Texas has rejected Harris on the basis of a statutory rule. Butler v. State, 493 S.W. 2d 190 (Tex.Cr.App.1973). Oregon retains a pre-Harris rule which is contraposed to Harris. State v. Brewton, 247 Or. 241, 422 P.2d 581, cert. denied, 387 U.S. 943, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967). A recent case decided by the Oregon courts on federal constitutional grounds which distinguished Brewton, supra,*256and Harris was overruled by the United States Supreme Court, which reaffirmed the Harris doctrine. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).

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