Commonwealth v. Holden
390 Pa. 221, 134 A.2d 868 (1957)

MUSMANNO, Justice (dissenting).

The Majority Opinion fails to discuss a very important matter raised by the defendant Charles Holden in his appeal to this Court for a new trial.

On December 31, 1955, between 5:15 and 6:40 a.m., Cora Smith was killed in her home as the result of being struck over the head. The defendant, Charles Holden, was accused, tried, and convicted of her murder. He maintained in his defense that he was innocent since he was not in the victim's home at the time of the brutal attack.

At the time of Holden's arrest, he was taken by the police to the home of a Ralph Jones who had been with Holden for several hours prior to the killing. In Holden's presence, Jones was questioned by the police. The matter of this questioning became a subject for inquiry at the later trial. The assistant district attorney representing the Commonwealth asked Jones if, at the time he was being quizzed by the police in Holden's presence, Holden did anything that was unusual. Jones replied:

"Well, during the period of time that the detectives were questioning me in his presence, I believe one of them noticed him to sort of wink or something."

The assistant district attorney then asked Jones what Holden meant, and Jones replied:

"I didn't rightfully know whether it was a wink or something that was in his eye."

The prosecuting attorney's question was a flagrant violation of the rules of evidence and should not have been permitted. What Jones may have thought that Holden meant by the wink, if it was a wink, was entirely speculative. The prosecuting attorney might just as well have asked: "What was Holden thinking of at the time?" In fact, the question imported that very type of query because obviously the eye, no matter how eloquent it is supposed to be in the minds of poets, novelists, and dreamers, is still not capable, by a blink, to telegraph complicated messages, unless, of course, the blinker and the blinkee have previously agreed upon a code.

When Jones replied that he did not know whether Holden had actually winked or had been troubled by a foreign substance in his eye, the Commonwealth's attorney asked him about a statement he had made to the police some time following the winking incident. On January 11th, a few days after the blinking affair, Captain Flynn of the City Detective Bureau asked Jones: "What did you take this wink to be?" and Jones replied:

"I think he was trying to get me to make an alibi for him to cover up some of his actions and I don't know nothing about any of his actions."

Commonwealth's counsel sought to introduce this statement at the trial and defense counsel properly objected, explaining:

"We object to that. Whatever it was, it wasn't made in the presence of the defendant, Charles Holden."

The objection was overruled and the jury was thus informed that the defendant endeavored to have Jones frame an alibi for him. On what evidence was this information based? On a wink.

And what did the wink say? I repeat:

"I think he was trying to get me to make an alibi for him to cover up some of his actions and I don't know nothing about any of his actions."

It will be noted that the stupendous and compendious wink not only solicited the fabrication of a spurious alibi but specified that it was "to cover up some of his actions." One movement of the eyelid conveyed a message of 21 words. Not even the most abbreviated Morse code could say so much with such little expenditure of muscular and mechanical power.

Although the statement of the interpretation of the wink is preposterous on its face, I can see how it could be made to seem very informative and convincing to the jury, since it was given to the jury with the Court's approval. If Holden had actually spoken to Jones the words which Jones related in his interpretation of the wink, no more effective admission of guilty knowledge could be imagined. Jones and Holden had been together prior to the killing. Holden tells Jones to make up an alibi so that Jones can extend their companionship of the evening to an hour including and beyond the time of the killing. And then Jones not only refuses to do what Holden asks him to do, but relates the criminal attempt on the part of Holden to suborn perjury.

But the fact of the matter is that Holden did not ask Jones to fabricate an alibi. He did not ask him to "cover up some of his actions." All that Holden did was to wink. No one knows whether he was trying to convey a message, whether he was attempting to shut out a strong ray of light, or whether a bit of dust troubled him at the moment. The Court, however, allowed the jury to believe that the wink was a semaphoric signal to Jones to commit perjury.

Was ever more ridiculous evidence presented in a murder trial? What is to happen to our rules of evidence in criminal trials if they can be breached so glaringly, without reproof or criticism by this Court? Holden was convicted and sentenced to life imprisonment. He might have been sentenced to death. On a wink.

And the Majority does not consider the matter of sufficient importance even to mention it.

If a witness is to be allowed to state what he believes a wink said, why should he not be allowed to interpret a cough? Or a sneeze? Or a grunt? Or a hiccough? Why should he indeed not be empowered to testify as to what is passing through an accused's brain? Why not permit mind readers to read a defendant's mind, and thus eliminate the jury system completely because who knows better than the defendant himself whether or not he committed the crime of which he stands accused?

The refusal of this Court to grant a new trial, with so momentous a violation of the defendant's rights, duly noted and excepted to on the record, would suggest that here the law has not only winked but closed both eyes.


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