Justice BAER.

Affirmed.

Castille, C.J., concurred in the result and filed opinion.

Saylor, J., dissented and filed opinion.

Todd, J., dissented and filed opinion.

William Patrick Wismer, Esq., for Shataan Adams. George Michael Green, Esq., John Francis X. Reilly, Esq., John Joseph Whelan, Esq., Delaware County District Attorney's Office, for Commonwealth of Pennsylvania.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice BAER.

We granted review to consider whether the right against self-incrimination, as protected by the United States and Pennsylvania constitutions, is implicated when a Commonwealth witness, such as an investigating detective, testifies without adverse implication that the defendant refused to answer questions prior to arrest. As previously observed in Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329, 336–337 (2005), and Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 478 (1998), we reiterate that a mere reference to pre- arrest silence does not constitute reversible error where the prosecution does not exploit the defendant's silence as a tacit admission of guilt. But cf. Commonwealth v. Molina, –––Pa. ––––, 104 A.3d 430, 2014 WL 6477607 (2014) (plurality opinion addressing the question of whether an arguably exploited reference to a defendant's pre-arrest silence violated the defendant's right against self-incrimination under the Pennsylvania Constitution). Accordingly, we affirm the decision of the Superior Court concluding that the defendant's constitutional rights were not violated by the detective's testimony in this case.

In the Highland Garden neighborhood of the City of Chester, during the evening of September 27, 2007, O'Neil Blackwood (Victim) suffered a fatal gunshot wound to his head during a burglary of his home by three assailants who intended to steal cash and drugs from Victim. The assailants also assaulted his wife, while their young children were upstairs in the home.

Mrs. Blackwood identified Shataan Adams (Defendant), who lived in the neighborhood, as one of the assailants, although his face was covered by a clear or flesh-toned mask. Moreover, at trial, one of Defendant's co-conspirators testified against him in exchange for a reduction of charges. A neighbor also testified to overhearing Defendant and the other assailants preparing for the crime.

As is relevant to the issue at bar, a detective investigating the crime testified as follows:

[Assistant District Attorney (“ADA”) ]: During your investigation, did you have the occasion to locate [Defendant]?

[Sergeant]: Yes.

[ADA]: Do you recall what date that was?

[Sergeant]: I believe it was October 19, 2007.

[ADA]: And on that date were you with anyone else?

[Sergeant]: Detective Slowik.

[ADA]: And did you attempt to interview [Defendant]?

[Sergeant]: Yes we did; however, he didn't want to speak to us at that time.

[ADA]: Did you identify yourselves as law enforcement?

[Sergeant]: Yes. We identified ourselves and told him that we'd like to interview him in reference to [Victim's] homicide and that his name came up in the matter.

[ADA]: And in response to that what did he say?

[Sergeant]: He said he had nothing to say.

[ADA]: What then—did you have a further conversation with him?

[Sergeant]: Yes. We also asked him to consent to provide us with a DNA sample with the use of a DNA collector at which time he agreed.
Notes of Testimony (N.T.), 5/7/09, at 251–252. Defense counsel requested a sidebar following this line of questioning, objecting that the exchange violated Defendant's constitutional right to remain silent. Id. at 254–258. The trial court overruled the objection.

At the conclusion of trial, during which Defendant did not testify, a jury convicted Defendant of Murder in the Second Degree, Burglary, Aggravated Indecent Assault, and Criminal Conspiracy for Robbery. 18 Pa.C.S. §§ 2502(b), 3502(a), 3125, and 908, respectively. In July 2009, the trial court sentenced Defendant to a term of life imprisonment for Murder in the Second Degree and additional terms for the other convictions to run consecutively.

Defendant appealed his judgment of sentence raising several issues, including the issue currently before this Court, in which Defendant contends that the trial court abused its discretion in allowing the prosecution to reference Defendant's pre-arrest silence during the detective's testimony. In its Pa.R.A.P. 1925(a) opinion, the trial court emphasized that admission of evidence is within the trial court's discretion and should not be overturned absent an abuse of that discretion or an error of law. In regard to Defendant's assertion that the testimony violated his right against self-incrimination, the trial court opined that “Defendant's Fifth Amendment rights had not yet attached” given that Defendant had not been charged with any crimes. Tr. Ct. Op. at 8. The court additionally observed that the detective's testimony did not constitute an impermissible comment on Defendant's silence but instead “was utilized as foundational evidence demonstrating how the police came to obtain Defendant's DNA sample.” Id. Accordingly, the court concluded that it did not abuse its discretion in overruling defense counsel's objection.

The Superior Court affirmed the trial court's determination that Defendant's right against self-incrimination had not been violated during the detective's testimony. Commonwealth v. Adams, 39 A.3d 310 (Pa.Super.2012). The court acknowledged that it had recently held in Commonwealth v. Molina, 33 A.3d 51 (Pa.Super.2011), that the right against self-incrimination prohibits the use by the prosecution of a non-testifying defendant's pre-arrest silence as substantive evidence of guilt. Adams, 39 A.3d at 318.

The Superior Court, however, distinguished the case at bar from Molina. In Molina, a detective testified regarding her investigation of what was then a missing person investigation but later evolved into a homicide investigation. She explained that she interviewed Molina by phone because the victim had been seen with him. The detective recounted that Molina answered several of her questions but then refused to come to the station for further questioning. While Molina's defense counsel did not object to this line of questioning, he did object when the prosecutor, during closing arguments, arguably relied upon Molina's refusal to come to the station as evidence of his guilt.

The Superior Court in Molina recognized that the mere reference to a defendant's silence does not violate a defendant's right against self-incrimination but held it was exploited by the prosecution's use of Molina's silence as substantive indicia of guilt. Molina, 33 A.3d at 56. The intermediate appellate court thus concluded that the detective's testimony in Molina was permissible because it was employed for the narrow purpose of describing the police investigation and not for implying the defendant's guilt but that the defendant's right against self-incrimination was violated when the prosecution used Molina's silence as substantive evidence of guilt in closing arguments.

Concomitantly, in the instant case, the Superior Court opined that the detective's testimony was “offered for a narrow purpose, namely to demonstrate the nature and focus of the investigation, and as foundational evidence demonstrating how the police came to obtain Defendant's DNA sample, which was later admitted into evidence at trial,” rather than as substantive evidence of guilt. Adams, 39 A.3d at 319. Accordingly, the court concluded that the trial court did not err in overruling the objection and allowing this testimony. Id. (citing DiNicola, 866 A.2d at 336–37 (“[T]he mere revelation of silence does not establish innate prejudice”); Whitney, 708 A.2d at 478 (“[e]ven an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt”)).

Defendant sought allowance of appeal in this Court. We granted review to consider the following issue as stated by Defendant:

Is the Fifth Amendment right against self[-]incrimination, and Article [I,] Section 9 of the Pennsylvania Constitution, implicated by testimony presented by the Commonwealth that the [sergeant] investigating a homicide stated that [Defendant] did not want to speak with the officer, followed by the [sergeant]' s testimony that he introduced himself as a police investigator, that he was investigating a homicide and [Defendant]'s name had come up?
Commonwealth v. Adams, 616 Pa. 437, 48 A.3d 1230 (2012).

Defendant rejects the Superior Court's conclusion that the detective's testimony was permissible because it was utilized only for the narrow purpose of setting forth the detective's investigation. Instead, Defendant contends that the reference to Defendant's pre-arrest refusal to speak with the detective violated his right against self-incrimination because the testimony “could be considered as substantive evidence of guilt.” Defendant's Brief at 18. Defendant asserts that the detective's testimony thus unconstitutionally burdened his right against self-incrimination.

In support, Defendant relies upon this Court's decision in Commonwealth v. Costa, 560 Pa. 95, 742 A.2d 1076, 1078 (1999), in which we granted relief to a testifying defendant claiming ineffectiveness of counsel due to counsel's failure to object when a detective referenced the defendant's post-arrest silence.

Defendant, however, fails to recognize that our decision in Costa does not indicate that the testimony had any purpose other than to highlight Costa's silence, where the detective's testimony in the case at bar was relevant to describing the progression of the detective's investigation.

Defendant also relies upon decisions of our sister courts holding that a defendant's right against self-incrimination is violated by a detective's testimony indicating that a defendant refused to speak to investigators prior to arrest. The non-binding decisions upon which he relies, however, involve distinguishable situations, including where the detective involved does not detail the course of his or her investigation, where the sole purpose of the reference is to infer guilt, or where there are repeated references to the defendant's silence. Defendant's Brief at 25–29 (citing, inter alia, United State v. Burson, 952 F.2d 1196, 1202 (10th Cir.1991) (finding error in eliciting testimony of two Internal Revenue Service agents regarding the defendant's silence but finding error harmless); State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, 339 (2004) (finding prosecution utilized defendant's silence to infer guilt); Taylor v. Commonwealth, 26 Va.App. 485, 495 S.E.2d 522, 527 (1998) (finding that the prosecution's sole objective in using silence was to prove guilt)).

Defendant, however, attempts to analogize these cases by contending that the detective's testimony in the case at bar was not necessary to describe the course of the investigation, given that the detective had already recounted interviews with Victim's wife and a neighbor, who both identified Defendant as one of the assailants. He asserts that at the time of the interview, the detective knew that he was a suspect in the murder. Moreover, Defendant emphasizes that the prosecutor did not merely ask the detective once whether he was willing to speak. Instead, he observes that the detective also stated that Defendant “had nothing to say” after they informed him that they were law enforcement officials investigating a crime in which his name had “c[o]me up.” N.T., 5/7/09, at 251–252. Defendant alleges, “This exchange was designed to insure that the jury could conclude that [Defendant] knew he was refusing to speak to an investigating detective about a homicide in which [Defendant] was at least a suspect, and not to further the jury's understanding of the nature, scope and progress of the investigation.” Defendant's Brief at 31. Defendant concludes that the questions “were deliberate and repeated, and the reference to [Defendant's] silence was clear.” Defendant's Brief at 31. Accordingly, Defendant urges this Court to reverse the decision below and find that the trial court erred in allowing the admission of the detective's testimony referencing his pre-arrest silence.

The Commonwealth urges the Court to affirm the decision of the Superior Court because the detective's brief reference to Defendant's pre-arrest silence was isolated and utilized merely to explain the extent and focus of the police investigation. Moreover, the Commonwealth contends that the testimony provided a foundation for later questions related to how the police obtained the Defendant's DNA sample. The Commonwealth emphasizes that the reference to Defendant's silence was not employed as a tacit admission of guilt. The Commonwealth observes that this Court has previously held that prosecutors can reference a defendant's pre-arrest silence to impeach a defendant's testimony at trial and as fair response to a defendant's arguments. Commonwealth Brief at 16 (citing DiNicola, 866 A.2d at 335–336). Additionally, it observes that we have previously stated that not all references to silence implicate a defendant's right against self-incrimination. Commonwealth Brief at 13 (citing DiNicola, 866 A.2d at 337). Thus, the Commonwealth argues that the brief and limited reference to Defendant's silence in this case did not burden Defendant's Fifth Amendment right against self-incrimination.

This Court has repeatedly recognized that questions concerning the admissibility of evidence are within the sound discretion of the trial court and will only be reversed upon a showing that the court abused its discretion. Commonwealth v. Johnson, 615 Pa. 354, 42 A.3d 1017, 1027 (2012). An abuse of discretion occurs where “the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record.” Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (2005). However, to the extent the question presents as “an issue involving a constitutional right, it is a question of law; thus, our standard of review is de novo, and our scope of review is plenary.” Commonwealth v. Baldwin, 619 Pa. 178, 58 A.3d 754, 762 (2012).

This Court has previously concluded that mere reference to a defendant's silence does not necessarily impinge constitutional rights when guilt is not implied. See DiNicola, 866 A.2d at 337; Whitney, 708 A.2d at 478. While we have interpreted the constitutional right against self-incrimination generally to prohibit prosecutors from referencing a defendant's silence as substantive evidence of guilt, this Court has also concluded that the right against self-incrimination is not burdened when the reference to silence is “circumspect” and does not “create an inference of an admission of guilt.”

DiNicola, 866 A.2d at 337. As noted above, “[e]ven an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt.” See Id. (quoting Whitney, 708 A.2d at 478).

Applying this precedent to the case at bar, we ultimately agree with the Commonwealth that the trial court acted within its discretion in concluding that the detective's testimony was not intended to imply a tacit admission of guilt by Defendant. Id. For all the reasons compellingly detailed by the dissent, we acknowledge, however, that this case presents a closer case than suggested by the Commonwealth, given that the prosecution's second question emphasized Defendant's refusal to speak to the detectives despite being aware that they were law enforcement personnel. We caution prosecutors to tread carefully when referencing a defendant's refusal to speak to officers, limiting such reference to the description of the investigation or other relevant purpose. Nonetheless, we affirm the trial court and Superior Court's conclusions that the testimony in this case did not unconstitutionally burden Defendant's right against self-incrimination, because the reference was contextual and brief and did not highlight Defendant's silence as evidence of guilt. As noted, it was simply utilized to recount the sequence of the investigation, in particular, how the DNA sample was obtained from Defendant. As the detective's testimony here did not violate Defendant's right against self-incrimination, the trial court did not err in allowing the testimony.

Accordingly, we affirm the Superior Court's order. Justice STEVENS did not participate in the consideration or decision of this case.
Former Justice McCAFFERY did not participate in the decision of this case.
Justice EAKIN joins the opinion.
Chief Justice CASTILLE files a concurring opinion.
Justice SAYLOR files a dissenting opinion.
Justice TODD files a dissenting opinion. Chief Justice CASTILLE, concurring.

I concur in the result reached by the Court on the basis of my Dissenting Opinion in the companion case, Commonwealth v. Molina, ––– Pa. ––––, 104 A.3d 430, 2014 WL 6477607 (2014). Because this case involves a pre-arrest scenario, in my view, the reference to appellant's pre-arrest silence during the course of the police investigation did not impinge upon his constitutional rights, irrespective of whether the prosecution later exploited the reference. In the alternative, I agree with Mr. Justice Baer's explanation of why the reference at issue did not implicate the right to silence, even if such a right could be said to obtain in the pre-arrest scenario.

Justice SAYLOR, dissenting.

Because I would conclude that the reference to Appellant's pre-arrest silence violated Article 1, Section 9 of the Pennsylvania Constitution, and that the error was not harmless, I respectfully dissent.

As explained in the companion case of Commonwealth v. Molina, ––– Pa. ––––, 104 A.3d 430, 2014 WL 6477607 (2014) (Opinion Announcing Judgment of the Court), the recent decision in Salinas v. Texas, ––– U.S. ––––, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013), established that, where the defendant does not expressly invoke his privilege against self-incrimination prior to his arrest, no Fifth–Amendment right attaches. However—and again, for reasons expressed in the Molina lead opinion—I would find that Article I, Section 9 of the Pennsylvania Constitution provides greater protection. Thus, in my view the trial court erred under that provision in permitting introduction of Appellant's refusal to speak with the police. Notably, in this respect, Appellant did not testify at his trial, and hence, his pre-arrest silence lacked any impeachment value.

I am also unconvinced by the lead opinion's reliance on an exception pertaining to evidence introduced for another purpose, such as explaining the sequence of the investigation. Indeed, I find such a proposition to be a mere pretext in the context of the present matter, as it seems readily apparent that, in the circumstances, the investigating officers would have sought to obtain Appellant's DNA even if he had affirmatively professed his innocence. Thus, I see no logical connection between Appellant's refusal to speak and the investigating officers' request for a DNA sample. As such, I disagree with the lead opinion to the extent it considers Appellant's refusal to speak as constituting “foundational evidence demonstrating how the police came to obtain [Appellant's] DNA[.]” Opinion Announcing the Judgment of the Court, op. at 514, 515. In this regard, I note that the Commonwealth could just as easily have elicited that the investigating officers went to Appellant's residence, identified themselves as a law enforcement officers, informed Appellant that his name had arisen in the investigation, and asked Appellant to provide a DNA sample. It seems unlikely the jury would have wondered why they would seek to obtain such a sample unless Appellant had first refused to speak with them.

Because I would find trial error, I would also reach the question of whether the error was harmless. As set forth in Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166 (1999), an error will be deemed harmless if: (1) the error did not prejudice the defendant or the prejudice was de minimus; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. The Commonwealth bears the burden of proving harmlessness beyond a reasonable doubt. See id. at 85, 748 A.2d at 193.

The second element of the test is not at issue in this case, as there is no contention that the evidence of Appellant's pre-arrest silence was cumulative of other proofs. As for the first prong, I believe that the prejudice was not de minimus. To the contrary, the Commonwealth argued that Appellant's guilt should be inferred from his refusal to cooperate with the police in the pre-arrest timeframe. In particular, after defense counsel suggested various reasons consistent with innocence why Appellant might not have wished to speak with the police, see Commonwealth v. Adams, 39 A.3d 310, 320 (Pa.Super.2012) (quoting N.T., May 8, 2009, at 37–39), the Commonwealth responded:

But [Appellant] takes the odd step. He wants to—police say hey, look, you've been implicated in a murder. You want to talk to us? He doesn't remain silent. He chooses to talk. And he doesn't say you are out of your mind. I was at this party. It was a month later. I'm at this party, I was having a great time all day. I remember it was Big Tome's house. He didn't say that. He says I don't have anything to say to you. He chooses not to speak and he chose to say that. He didn't choose to say, whoa, I got an alibi. No prison for me. You're not catching me on a murder rap. He says I have nothing to say to you.
Id. at 315 (quoting N.T., May 8, 2009, at 112–13).

The lead opinion discounts the relevance of this aspect of the trial on grounds that Appellant himself sought to explain such silence during his summation, see Opinion Announcing Judgment of the Court, op. at 514 n. 3; see also Adams, 39 A.3d at 320 (suggesting Appellant's counsel “made a tactical decision” to comment on Appellant's pre-arrest silence during his summation); cf. Opinion Announcing the Judgment of the Court, op. at 517–18 (indicating that the reference to Appellant's silence was “contextual and brief,” and that “guilt [was] not implied”). It seems to me, however, that Appellant was left with no real choice but to attempt such an explanation after his objection to the pre-arrest silence testimony was overruled. Thus, the trial court's error led to the need for such commentary, which in turn opened the door to the Commonwealth's responsive argument advocating that the jury infer guilt based on Appellant's silence—none of which would have occurred if the court had sustained defense counsel's objection.

As for the final prong, the question is not as straightforward as usual, since the specific question on which we granted review is whether, in applying the harmless error doctrine, the Superior Court acted contrary to prevailing law by considering evidence of guilt that had been contradicted by the defense. See Commonwealth v. Adams, 616 Pa. 437, 438, 48 A.3d 1230, 1230–31 (2012) ( per curiam ). The Commonwealth appears to agree that the intermediate court departed from precedent, as it urges this Court to alter the harmless-error standard so that an appellate court may consider proofs that have been contradicted by the defense. See Brief for Commonwealth at 10, 25–30. In this regard, Appellant points out that he presented the testimony of an alibi witness that contradicted all of the testimony from the Commonwealth's witnesses placing Appellant at the scene of the crime. Notably, the Superior Court relied exclusively on this latter testimony (as opposed to physical evidence) as constituting the overwhelming evidence of Appellant's guilt for purposes of its harmless-error inquiry. See Adams, 39 A.3d at 322–23. While the intermediate court described such testimony as “uncontradicted,” id. at 322, in fact it was logically contradicted by the alibi testimony.

I believe it would be unwise for this Court to alter the harmless-error test in the manner suggested by the Commonwealth, primarily for the reasons explained in Young. Most notably, it is not within the province of reviewing courts to determine the comparative credibility of conflicting evidence. See Young, 561 Pa. at 86, 748 A.2d at 194 (“Where such factfinding functions are implicated, appellate courts are incompetent to choose which side's evidence is more persuasive.”); accord Commonwealth v. Markman, 591 Pa. 249, 279, 916 A.2d 586, 604 (2007).

In summary, then, I would hold that it was error for the trial court to overrule Appellant's objection to the Commonwealth's reference to his pre-arrest silence, and that the error was not harmless beyond a reasonable doubt. Accordingly, since the Court concludes that there was no error and affirms the Superior Court's order, I respectfully dissent.

Justice TODD, dissenting.

I would not address whether the Fifth Amendment applies in the instant context, 521 because, as Justice Saylor explains, Article I, Section 9 of the Pennsylvania Constitution provides greater protection and precludes the prosecution's use of an accused's silence, except in certain limited circumstances not implicated herein. See Dissenting Opinion (Saylor, J.) at 519 & n. 1. In the instant case, Appellant did not testify or otherwise raise any issue upon which his silence had significant probative value, and, thus, the privilege against self-incrimination under our state charter precluded the Commonwealth from using that silence at trial. Moreover, I agree with Justice Saylor that our current harmless error jurisprudence adequately serves the interest of judicial efficiency, and that the Commonwealth's preferred course ignores this Court's limited competency in assessing the relative value of witness credibility. See id. at 520. Finally, under the instant circumstances, I further agree with Justice Saylor that the Commonwealth's use of Appellant's pre-arrest silence may well have affected the jury's verdict and, thus, warrants retrial. Id. at 519–20. Accordingly, I respectfully dissent.