
    Commonwealth v. Williams, Appellant.
    
      June 14, 1973:
    
      John J. Scott, Anne F. Johnson and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
    
      James T. Banney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
   Opinion by

Jacobs, J.,

Appellant, Amos Williams, was arrested and indicted on a charge of forcible rape. He was found guilty by a jury and sentence was imposed. In this appeal he claims that his privilege against self-incrimination was violated when a Commonwealth witness referred to his refusal to take a polygraph test and make a formal statement in support of an oral statement. However, appellant’s counsel failed to object to such testimony at trial. We find that the admission of such testimony, under the circumstances of this case, was not fundamental error and affirm the judgment of sentence.

At trial, after the Commonwealth presented its evidence, the appellant testified that he was acquainted with the prosecutrix and that Ms sexual intercourse v/itli her was consensual and not rape. To rebut this testimony the Commonwealth called a police detective who testified that after appellant was arrested and informed of his constitutional rights, he voluntarily made a verbal statement. Tbe detective testified that appellant indicated that be was not previously acquainted with tbe prosecutrix and at tbe time of tbe incident bad given ber $4, in return for wbicb sbe agreed to engage in sexual intercourse. Appellant’s statement as recited by tbe detective was also inconsistent with bis testimony in several other respects. At tbe end of bis testimony, tbe detective added: “I then did ask tbe defendant if be would be willing to give me a formal statement tbe same as tbe complainant bad and also requested that tbe defendant take a polygraph test, wbicb is procedure. To both of these requests be refused. He didn’t make any more statements.” Appellant’s trial counsel failed to object. Furthermore, be failed to mention tbe alleged error in bis post-trial motions or argue tbe same before tbe court below. Now, on appeal, counsel argues that tbe admission of this testimony deprived appellant of bis right to a fair trial and bis privilege against self-incrimination.

Had proper objection to this statement been made below, such objection should have been sustained. Reference to a refusal to take a polygraph test is inadmissible. See Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956). Furthermore, appellant bad a constitutional right to resume bis silence, after waiving tbe same to give an oral statement, and reference to bis refusal to make a formal statement might well be construed as a reference to tbe exercise of that right. We now turn to tbe question of whether this unob-jected to error warrants a new trial.

As a general rule, an appellate court will not reverse on a point as to wbicb no exception was taken or on a ground not raised in tbe court below, but . tbe general rule will not be applied where there is “ ‘basic and fundamental error wbicb affects tbe merits or justice of tbe case, or, as some cases express it, offends against the fundamentals of a fair and impartial trial ....’” Commonwealth v. Jennings, 442 Pa. 18, 25, 274 A.2d 767, 770 (1971), quoting Commonwealth v. Williams, 432 Pa. 557, 563-64, 248 A.2d 301, 304 (1968). Objection has been made to this rule on the basis that the test used is too vague and lends itself to inconsistent results. See the dissent of Justice Roberts in Commonwealth v. Williams, supra, and his concurring opinion joined in by Justice, now Chief Justice, Jones in Commonwealth v. Jennings, supra. However, the rule is still the law of Pennsylvania and we must apply it to the best of our ability.

An examination of the cases discussing the fundamental error rule amply demonstrates the difficulty in applying the rule. In Commonwealth v. Williams, supra, a charge construed as permitting a jury to bring in a conviction even though the Commonwealth had not proved defendant guilty beyond a reasonable doubt was said to be fundamental error. In Commonwealth v. Jennings, supra, where defendant was convicted of murder, an erroneous charge that voluntary manslaughter cannot be found by the jury if there was a direct intent to kill was held not to be fundamental error. A charge which in effect said that a person must retreat when assaulted in his own house was held to be fundamental error in Commonwealth v. Miller, 448 Pa. 114, 290 A.2d 62 (1972).

The case most similar to the present case which we have been able to find is Commonwealth v. O’Toole, 159 Pa. Superior Ct. 592, 49 A.2d 267 (1946). The defendant did not take the stand and in his charge the judge said, “Now, O’Toole did not take the witness stand. You may make something out of that . . . [.]” Id. at 595, 49 A.2d at 268. The Court held that to be an element of basic and fundamental error under the circumstances of the case justifying a new trial even though no exception was taken. The judge’s statement was in direct violation of §10 of the Act of May 23, 1887, P.L. 158, 19 P.S. §631, prohibiting adverse reference by court or counsel to the failure of a defendant to offer himself as a witness in his trial. The case lacks precedential value because of the absence of comment by court or counsel in the matter now under consideration.

We agree with the appellant that the prosecution may not at trial present testimony showing that defendant remained silent at the time of his arrest. Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). Nor may the Commonwealth comment at trial on the defendant’s election to remain silent at any stage of the interrogation. Commonwealth v. Dulaney, 449 Pa. 45, 295 A.2d 328 (1972). However, neither case compels us to find that fundamental error was committed in this case. In Commonwealth v. RaÁde-man, supra, proper objection was made at trial and in Commonwealth v. Dulaney, supra, the district attorney commented extensively and adversely on the defendant’s silence in his closing argument. In another recent case cited by appellant for the same general proposition, Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973), the district attorney in closing commented adversely on the defendant’s silence.

It is our conclusion that the offending testimony in this case lacks the elements necessary to make its presence fundamental and basic error. Neither the Commonwealth nor the court commented on this testimony or made further use of it, thus minimizing any adverse effect of the testimony. As was said by Justice Douglas, writing for the majority in Griffin v. California, 380 U.S. 609, 614 (1965) : “What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” The testimony was not offered in chief by the Commonwealth but only in rebuttal after the appellant had testified. Since it cast doubt on the statement given to the police at the time of arrest, rather than on appellant’s testimony at trial, it might conceivably have been helpful to appellant. Such thought may have motivated counsel’s failure to object.

This testimony did not affect the merits of the case, as would an incorrect charge on an important element of the crime, and in our opinion the possible, but un-emphasized, prejudicial effect was not sufficient to prevent appellant from receiving a fair trial.

Judgment affirmed.

Ceecond, J., concurs in the result. 
      
       Appellant is now represented by other counsel.
     
      
      
         See Commonwealth v. Miller, 448 Pa. 114, 290 A.2d 62 (1972).
     