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explaining that constitutional rights are stripped of their force and meaning if a person is punished for exercising them
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No. 22 MAP 2022
06-21-2023
COMMONWEALTH of Pennsylvania, Appellee v. Jonathan RIVERA, Appellant
Lisa Ann Mathewson, Esq., Mathewson Law LLC, Christopher T. Powell Jr., Esq., Powell Law PC, for Appellant. Albert Charles Ondrey, Esq., Bradford County District Attorney's Office, for Appellee.
Lisa Ann Mathewson, Esq., Mathewson Law LLC, Christopher T. Powell Jr., Esq., Powell Law PC, for Appellant.
Albert Charles Ondrey, Esq., Bradford County District Attorney's Office, for Appellee.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE BROBSON This discretionary appeal allows us to consider harmless error in the context of post-arrest silence. At trial, the prosecutor in this case asked the arresting officer a series of questions about the defendant's post-arrest behavior, particularly whether the defendant denied the charges against him. Over a defense objection, the officer told the jury, four separate times, that the defendant, upon his arrest, stood mute and denied none of the charges. The Superior Court ruled that this testimony was admitted in error but, relying on authorities discussing pre-arrest silence, found it harmless. We accepted review to reiterate that different harmless error standards apply when evaluating testimonial references to a defendant's post-arrest versus pre-arrest silence. Oriented correctly, we conclude that the testimony in this case was not harmless beyond a reasonable doubt. Therefore, we must award the defendant a new trial.
I.
In April 2018, Florencia Mainetto (Florencia) recorded cellphone videos of her daughter (G.R.) and her niece (C.P.), both minors at the time, accusing Appellant Jonathan Rivera (Rivera) of sexual abuse. After sharing these videos with Trooper Higdon of the Pennsylvania State Police, Florencia and her sister, Katherin Mainetto (Katherin), who is C.P.'s mother, brought G.R. and C.P. to the Children's Advocacy Center of Towanda (Advocacy Center) for formal forensic interviews. Trooper Higdon observed these interviews through a window. A nurse at the Advocacy Center then examined G.R. and C.P. but did not find any physical evidence of abuse. Later, two more minors, S.C. and S.M., made similar allegations against Rivera. Combined, the victims alleged that Rivera abused them between the years of 2009 and 2018.
On June 26, 2018, Trooper Higdon filed a criminal complaint and affidavit of probable cause against Rivera, alleging, inter alia , rape of a child. That day, with an arrest warrant in hand and other officers in tow, Trooper Higdon went to Rivera's house, apprised him of the charges against him, read the Miranda warnings, and placed him under arrest. Upon his arrest, Rivera did not deny the charges; rather, he remained silent—as was his right under the state and national constitutions. See Pa. Const. art. 1, § 9 ("In all criminal prosecutions the accused ... cannot be compelled to give evidence against himself[.]"); U.S. Const. amend. V ("No person ... shall be compelled in any criminal case to be a witness against himself."). See generally Watts v. Indiana , 338 U.S. 49, 54, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949) ("Under our system society carries the burden of proving its charge against the accused not out of his own mouth[.]").
Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
After the Commonwealth filed a 26-count information against Rivera, the matter proceeded to a jury trial. The Commonwealth's case-in-chief, as the transcripts reflect, was testimony-heavy. The Commonwealth called 11 witnesses over two days, starting with the employee at the Advocacy Center who conducted the forensic interviews. She explained the general method of such interviews but expressed no opinion about the veracity of the allegations. (See Notes of Testimony (N.T.), 8/6/2019, at 28-43.) G.R. testified next. She recounted several instances of abuse, including times where Rivera would play "truth-or-dare" with her and C.P., which, she stated, often ended with him "put[ting] his private in our butt;" an instance of abuse in a vehicle; a time where Rivera showed her and C.P. pornographic videos in a barn; and a situation when she had to be medevacked to a hospital because, she said, Rivera choked her with a lollipop (the lollipop incident). (Id. at 60, 61, 65-66, 67, 70.) The paramedic who responded to the lollipop incident then briefly testified to the incident from his perspective.
As they appear in the original information, the charges, in order, were: one count of aggravated assault, 18 Pa. C.S. § 2702(a)(1) (felony 1); four counts of rape of a child, 18 Pa. C.S. § 3121(c) (felony 1); four counts of involuntary deviant sexual intercourse with a child, 18 Pa. C.S. § 3123(b) (felony 1); five counts of attempted aggravated indecent assault, 18 Pa. C.S. § 901(a) (felony 2); one count of endangering welfare of children, 18 Pa. C.S. § 4304(a)(1) (felony 3); four counts of corruption of minors; 18 Pa. C.S. § 6301(a)(1)(ii) (felony 3); one count of simple assault, 18 Pa. C.S. § 2701(a)(1) (misdemeanor 1); four counts of indecent assault, 18 Pa. C.S. § 3126(a)(7) (misdemeanor 1); and one count of indecent exposure, 18 Pa. C.S. § 3127(a) (misdemeanor 1). Prior to trial, the trial court dismissed one count of indecent exposure as duplicative.
Florencia testified next. She said she originally chalked up the lollipop incident to "a kid's mistake" but became suspicious after G.R. told her she had a dream of Rivera "playing with [her and C.P.] with [a] lollipop." (Id. at 130.) Florencia admitted she had an affair with Rivera (who was in a relationship with Katherin at the time) and conceded that she was formerly an undocumented immigrant and did not become a permanent resident until late 2017. Florencia then noted that, after Rivera told her that C.P. and G.R. saw "him naked or whatever" several times, she decided to record the cellphone videos of G.R. and C.P. because she thought "it will help with ... if I, you know[,] to have evidence." (Id. at 139, 143.) Florencia denied having "coach[ed]" G.R. or C.P. and denied having told either of them "what to say." (Id. at 145, 147.)
Part of defense counsel's strategy on cross-examination involved trying to undermine Florencia's credibility. (See id. at 151 ("[Y]ou were worried that if an affair came out your husband would leave you, or [he] wouldn't sign [the] papers to allow you to be a legal resident of the United States[?]"); id. at 159-60 ("[Y]ou knew that if you accused somebody of ... some sexual offense you would be permitted to remain in the United States. Correct?").) Florencia also conceded that she "falsely" told Katherin she did not have the video of C.P. because Trooper Higdon told her to delete it. (Id. at 168.) C.P. testified to close out the first day of trial; her testimony more or less tracked G.R.'s.
The second day of trial kicked off with testimony from C.P.'s father. He said he noticed C.P. began "acting weird" around the time she was living with Rivera and Katherin but otherwise testified in generalities. (N.T., 8/7/2019, at 6.) After S.C. and S.M. briefly recounted incidents of abuse, S.M.'s mother (Rivera's ex-wife) testified. She discussed the first time S.M. told her Rivera touched her inappropriately and explained how she became involved in the case. Trooper Higdon testified next, and it was during his testimony that the exchange precipitating this appeal occurred.
To provide context for the exchange at issue, during cross-examination of Trooper Higdon, defense counsel focused on the absence of physical evidence indicated by the findings in the reports:
Q. But anyway, [the physical examination reports] end up in your file?
A. Correct.
....
Q. And you reviewed the file, didn't you?
A. Yes.
Q. And there [were] negative findings on both [G.R.] and [C.P.], am I correct?
A. Can you explain what you mean by negative findings[?]
Q. There [were] no tears, am I correct?
A. Correct.
....
Q. There was no, ... their hymens were still intact, correct?
A. Correct.
....
Q. There was nothing found ... by the physician or by the nurse of the anus, am I correct?
A. Correct.
Q. There [were] smooth edges [that] were indeterminate for sexual abuse?
A. Correct.
Q. And you still arrested my client[?]
A. Correct.
Q. So[,] therefore[,] you arrested my client based upon the forensic interview[s]?
A. Well not solely, but correct.
Q. Well you never talked to my client, did you?
A. No, I attempted to.
Q. So we have a lying Florencia, who lied to Katherin ... that you told her to destroy [the cellphone recordings of C.P.] But most of your information you received [from] Florencia, am I correct?
A. Most of my information I received from the victims.
A. From Florencia telling you who the victims were, am I correct?
Q. Florencia told me of two of the victims, her daughter and her niece.
(Id. at 99-100.) The following exchange, which gives rise to the issue now before this Court, occurred immediately on re-direct:
Q. [Commonwealth Attorney]: I'd like to direct your attention to June 26, 2018, at about 1400 hours, did you ... go to the home of [Rivera]?
A. [Trooper Higdon]: Yes.
Q. And was he arrested based on the arrest warrant?
A. I had an arrest warrant in hand, correct.
Q. At approximately 1430 hours, did you read [Rivera] his Miranda [w]arnings?
A. Yes.
Q. So what, what are the Miranda [w]arnings?
A. Miranda [w]arnings are, I'll say in easy terms of their right to remain silent.
Q. Okay. After you read him his Miranda warnings, he never told you that he didn't do anything to any of these kids?
A. No.
Q. He never denied doing anything to –
Defense Counsel : Objection to that. A person doesn't have to deny.
The Court : You're correct, I think he's just asking if he did. You may answer.
A. He did not deny.
Q. He never said[,] I didn't do this?
A. No.
Q. What did he say?
A. Nothing, he said he wished not to talk.
Q. No more questions.
(Id. at 101-02 (emphasis added).) The trial court then addressed the jury: "Okay[,] and just to [defense counsel's] point, that is his right as a defendant, okay, [c]onstitutional [r]ight." (Id. at 102.) Notably, after the prosecutor asked these four questions about Rivera's post-arrest, post- Miranda silence, defense counsel did not request a sidebar, ask for a curative instruction, or move for a mistrial. The trial pressed on with the Commonwealth's final witness, the nurse who physically examined the victims. She noted that she did not "see any physical injuries" on any of the victims but stressed that this does not necessarily rule out abuse. (Id. at 114.) The Commonwealth rested.
To begin his case-in-chief, Rivera called Florencia's husband and his own mother; both testified briefly and generally. (See id. at 124-35.) The next day, before hearing any more testimony, the trial court dismissed three counts for insufficient evidence, downgraded one count, and allowed the Commonwealth to amend the information and upgrade two counts from the misdemeanor to the felony level.
When the jury returned, Rivera called two more witnesses: First, his sister, who said she never observed any concerning behavior (see N.T., 8/8/2019, at 13-19), and, second, Katherin. Katherin explained why she chose to be a defense witness, noting she first became suspicious about the allegations after the forensic interviews because Florencia "kept saying ... I'm going to sue [Rivera] for everything" and "kept constantly talking about money." (Id. at 46-47.) On one occasion, Katherin said Florencia told her "I'll be able to get my citizenship quicker" if Rivera was convicted of a crime. (Id. at 48.) She also noted that she regularly bathed both C.P. and G.R. and never saw signs of abuse and said neither C.P. nor G.R. complained to her about being abused. During cross-examination, Katherin admitted she was pregnant with Rivera's son at the time of the lollipop incident and reiterated that her doubts about the allegations really solidified after she learned of Florencia's affair with Rivera.
Lastly, Rivera took the stand. Among other things, he denied abusing the victims, offered a partial alibi defense for some of the accusations, and explained why he believed that the mothers of G.R. and S.M. were not credible witnesses. For example, he speculated that Florencia was upset that he ended the affair with her and noted that he had a divorce action pending with S.M.'s mother with "a lot of money" at stake. (Id. at 72.) After the Commonwealth called a rebuttal witness who briefly recounted one incident of abuse, the parties made their respective closing arguments. The prosecutor, notably, did not bring up Rivera's post-arrest, post- Miranda silence in his summation. Ultimately, the jury returned a split verdict—it acquitted on the most serious charges, i.e. , Count 1 (related to the lollipop incident) and Counts 2-9 (including rape of a child) and found Rivera guilty of all the remaining 11 counts.
On appeal, and relevant here, Rivera argued that the trial court erred by permitting the testimony regarding his post-arrest silence. Stressing the lack of physical evidence and the absence of a promptly filed report, moreover, he characterized the case as having turned on credibility, particularly his own. The disputed testimony, he claimed, irreparably undermined his credibility in the eyes of the jury before his case-in-chief even began. Pointing also to the split verdict and the fact that, in his view, the trial court's brief comment to the jury at the conclusion of the prosecutor's re-direct could not be classified as a curative instruction, Rivera asserted that the allowance of the disputed testimony was not harmless. As such, he argued he was entitled to a new trial.
The trial court rejected this argument. "It was not unfairly prejudicial to [Rivera]," the trial court first noted, "for the Commonwealth to simply point out, in telling the narrative of the investigation and arrest, that [Rivera] exercised his constitutional right to remain silent," as "[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." (Trial Ct. Op. at 6 (quoting Commonwealth v. Whitney , 550 Pa. 618, 708 A.2d 471, 478 (1998), and Commonwealth v. DiNicola , 581 Pa. 550, 866 A.2d 329, 337-38 (2005) ("[T]he mere revelation of silence does not establish innate prejudice.")).) In addition, the trial court noted that it informed the jury about Rivera's "right to remain silent, and the rule of law establishing that said silence cannot be held against him nor used to infer he is guilty" during both "preliminary and concluding instructions." (Id. ) Besides, the trial court stated, "[i]n the end, [Rivera] took the stand anyway, telling the jury his side of the story." (Id. ) Therefore, "even if the brief inquiry into [Rivera's] post- Miranda silence was potentially problematic, the [trial court's] immediate curative instruction, the relevant preliminary and concluding instructions, [Rivera's] own testimony, and the failure of the prosecuting attorney to ever again mention [his] post- Miranda silence" rendered, in the trial court's view, any potential error related to the disputed testimony harmless. (Id .)
After granting Rivera's motion for reconsideration and withdrawing its prior panel decision, a three-judge panel of the Superior Court then affirmed in part, reversed in part, and remanded for resentencing. See Commonwealth v. Rivera , 255 A.3d 497 (Pa. Super. 2021). As to the testimony issue, the Superior Court first rejected the Commonwealth's argument that the prosecutor's questions were a "fair response" to defense counsel's questions. Id. at 505. Prior to the disputed testimony, the Superior Court noted, defense counsel had briefly inquired into Rivera's pre-arrest silence. Questions about pre-arrest silence, the Superior Court reasoned, do not open the door to questions about post-arrest silence, because they do not create a "factual inconsistency with regard to whether [Rivera] denied the allegations against him ‘at the time of [his] arrest ,’ " which is required for the fair response doctrine to apply. Id. at 506 (emphasis in original) (quoting Commonwealth v. Turner , 499 Pa. 579, 454 A.2d 537, 539-40 (1982) ). Thus, the Superior Court ruled that the disputed testimony was admitted in error.
As noted, the trial court permitted the Commonwealth on the last day of trial to amend the information and upgrade two counts from the misdemeanor to the felony level. The jury found Rivera guilty of both counts. Relying on Commonwealth v. Sinclair , 897 A.2d 1218 (Pa. Super. 2006), the Superior Court vacated these convictions and remanded for resentencing given that the absence of these charges upset Rivera's overall sentence. The Commonwealth does not presently challenge this aspect of the holding.
Nevertheless, the Superior Court found that "the trial court's error was harmless because the prejudice to Rivera, if any, was de minimis," citing the three-prong test for harmlessness:
[H]armless error exists [if] ... (1) the error did not prejudice the defendant or the prejudice was de minimis; 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.
Id. at 506-07 (quoting Commonwealth v. Hairston , 624 Pa. 143, 84 A.3d 657, 671-72 (2014) (quoting Commonwealth v. Hawkins , 549 Pa. 352, 701 A.2d 492, 507 (1997), cert. denied , 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998) )), cert. denied , 574 U.S. 863, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014).
Despite having dispatched the fair response argument by distinguishing pre- and post-arrest silence, the Superior Court then cited a batch of pre-arrest silence authorities in its harmless error analysis. Chiefly, it relied on Commonwealth v. Adams , 628 Pa. 600, 104 A.3d 511 (2014) (plurality), which, it surmised, "found harmless error where the prosecutor elicited testimony that referenced the defendant's post-arrest silence because the reference was ‘contextual and brief and did not highlight [d]efendant's silence as evidence of guilt’ " but only "recount[ed] the sequence of the [Commonwealth's] investigation." Rivera , 255 A.3d at 507 (quoting Adams , 104 A.3d at 518 ). The court then referenced DiNicola and Whitney without discussion. In a parenthetical, it summarized DiNicola as reflecting a scenario "where defense counsel first created [an] inference that [the] Commonwealth's investigative efforts were minimal" and then an officer, in a brief and "circumspect" fashion, testified that the defendant "declined [a] police interview." Id. (quoting DiNicola , 866 A.2d at 337 ). Additionally, the court quoted Whitney for the same sentence the trial court did—"[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." Id. (quoting Whitney , 708 A.2d at 478 ).
Applying these cases, the Superior Court opined that, "in recounting the sequence of the Commonwealth's investigation into Rivera's case, Trooper Higdon's reference to [his] post-arrest silence—that [he] failed to deny the allegations against him and wished not to talk after receiving his Miranda warnings—resulted in de minimis, if any, prejudice." Id. at 507 (internal quotation marks omitted). Like in Adams , the Superior Court concluded in this case that the reference to Rivera's silence was "contextual and brief" and simply "rebutted the inference that police officers had failed to interview Rivera at all as a part of their investigation into his case, rather than highlight[ing his] silence at the time of his arrest as evidence of his guilt." Id. (emphasis in original) (internal citation omitted). Further, the Superior Court stressed that "the Commonwealth did not mention Rivera's post- Miranda silence again or reference it during closing argument." Id. Thus, as "the trial court's error in admitting Trooper Higdon's brief and contextual testimonial reference to Rivera's post- Miranda silence—where such reference was not relied upon as substantive evidence of Rivera's guilt—did not deprive Rivera ... of a fair trial," the Superior Court concluded that the error was harmless and declined to award a new trial. Id. at 508.
This Court accepted review to consider the following issue:
Whether prejudice is presumed from the improper use at trial of post-arrest, post- Miranda silence, requiring the Commonwealth to show beyond a reasonable doubt that the error did not affect the verdict—or whether, as the Superior Court held, the standard that governs the use of pre-arrest silence, from which prejudice is not presumed, also governs constitutional harmless error from the improper use of post-arrest, post- Miranda silence?
Commonwealth v. Rivera , 273 A.3d 510 (2022) (per curiam).
Readying for a harmless error review, Rivera opens his brief by summarizing the trial. "As the parties' opening statements reflect," he contends, "it was a credibility contest from the start" given that "[n]o prompt complaint had addressed any of the accusations" and "no physical evidence corroborated any of them." (Appellant's Br. at 7-8.) The jury weighed five defense witnesses against, he suggests, "a prosecution narrative built on statements by the young complainants and some of their mothers," whose credibility he "vigorously" challenged during cross-examination. (Id. at 8.) His own testimony, he argues, was the "centerpiece of the defense," insofar as he denied, for the first time, the allegations, offered a partial alibi defense, and "developed the mothers' motives to lie." (Id. at 10-11.) But the unconstitutional testimony, he avers, fatally undermined his credibility before his case-in-chief began. (Id. at 11.)
Turning to the heart of the argument, Rivera asserts that the Superior Court's primary error in this case was that court's reliance on pre-arrest silence cases. Keeping pre-arrest silence authorities distinct from post-arrest silence authorities is essential, he claims, for as this case illustrates different harmless error standards pertain for each. Reading our cases, he suggests that, in pre-arrest cases, prejudice is not innate, and a defendant must show that prejudice has been created as a result of the admission of pre-arrest silence. This is in contrast, he asserts, to post-arrest cases, where prejudice is innate, and the prosecution must prove beyond a reasonable doubt that prejudice was cured. (See id. at 21-22.) Oriented properly as a post-arrest case, he claims it becomes "impossible" here "to say beyond a reasonable doubt that the error did not affect the [jury's] deliberations." (Id. at 24.)
"[M]ost laymen," Rivera observes, "view an assertion of the Fifth Amendment privilege as a badge of guilt." (Id. at 26 (quoting Commonwealth v. Haideman , 449 Pa. 367, 296 A.2d 765, 767 (1972) ).) For this and other reasons, he maintains that "an unbroken line of state and federal precedent" protects post-arrest silence and that the "Pennsylvania Constitution provides greater protection tha[n] the [United States] Constitution," as our constitution protects post-arrest silence regardless of when Miranda warnings are read. (Id. at 26 & n.14.) As this Court has "time and again" described a reference to post-arrest silence as "innately prejudicial," such a reference, he continues, requires reversal "unless the prosecution demonstrates beyond a reasonable doubt that something in the record cured the prejudice." (Id . at 27 (emphasis omitted).) Rivera contends that using Adams and DiNicola to say that a reference to post-arrest silence yielded "de minimis, if any, prejudice," as the Superior Court did here, is incorrect because, again, a reference to post-arrest silence is in his view presumptively prejudicial. (Id. at 29-30.)
To illustrate this, he points to Commonwealth v. Costa , 560 Pa. 95, 742 A.2d 1076 (1999), which he claims roughly mirrors the facts of this case. Costa was a sexual abuse case, without physical evidence, and the defendant testified in his own defense. There, he notes, we deduced that credibility was "pivotal" to the outcome of the trial and ultimately found that a single comment regarding post-arrest silence constituted reversible error, stressing in particular that it "undermined [the defendant's] credibility" and gave the "[j]urors ... the opportunity to have concluded that[,] if the [defendant] were not guilty, he would not have waited until trial to assert his innocence." (Id. at 32 (emphasis omitted) (quoting Costa , 742 A.2d at 1078 ).) He then cites several other of our cases on the subject of credibility, noting we "recently" reaffirmed that when " ‘the jury [is] faced with a question of credibility,’ it is impossible to say that the admission of evidence that should have been excluded was harmless." (Id. at 33 (quoting Commonwealth v. Fulton , 645 Pa. 296, 179 A.3d 475, 495 (2018) ).)
Another important lesson to draw from these cases, Rivera continues, is the fact of a split verdict. In Turner , for example, he notes that we characterized a split verdict as a "compromise verdict" and reasoned that "[t]he jury may have decided that the Commonwealth's case was significantly bolstered by the reference to ... post-arrest silence." (Id. at 35 (quoting Turner , 454 A.2d at 540 ).) He also points out that we granted a new trial in Turner despite the fact that case involved a single question about post-arrest silence—a question that was unanswered, withdrawn, and followed by a detailed cautionary instruction. (See id. at 36.) In all then, Rivera renews his claim that the four questions here were not harmless beyond a reasonable doubt and asserts that he is entitled to a new trial.
The Commonwealth first requests we dismiss this appeal as improvidently granted. Conceding the Superior Court wrongly "cit[ed] a pre-arrest case, ... Adams ," it suggests the court "did in fact conduct a post[-]arrest analysis." (Commonwealth's Br. at 11 (quoting Rivera , 255 A.3d at 506 ("Where a trial court has erroneously admitted evidence of post-arrest silence , we may find that no new trial is warranted if we are convinced the error was harmless beyond a reasonable doubt." (emphasis added))).) The Commonwealth also asks us to dismiss the appeal because, in its view, defense counsel's lone and brief objection did not preserve the matter for appeal.
The Commonwealth notes that, in Turner , this Court "found that the prejudice to a defendant resulting from reference to [the defendant's] post-arrest silence [was] substantial," yet it still "applied a harmless error analysis." (Id. at 14.) Further, the Commonwealth notes that in Commonwealth v. Spotz , 582 Pa. 207, 870 A.2d 822, cert. denied , 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 474 (2005), we "rejected" the idea that such references are "innately prejudicial," the same as we did in DiNicola . (Id. at 15 (quoting Spotz , 870 A.2d at 833-34 ).) Lastly, the Commonwealth cites Commonwealth v. Mitchell , 576 Pa. 258, 839 A.2d 202 (2003), for the notion that "an improper reference to" post-arrest silence "may be deemed harmless if it did not contribute to the verdict." (Id. ) On the merits, the Commonwealth argues that the error was harmless for the same reasons the Superior Court cited—i.e. , because the reference was contextual and brief and rebutted the inference that police "failed to interview" Rivera, the prosecutor did not reference Rivera's silence ever again during the trial, and Rivera's silence was not used "as substantive evidence of guilt." (Id. at 16.)
II.
Undeniably, the four questions the prosecutor asked here related to Rivera's post-arrest, post- Miranda silence. The inquiry was not a one-off, unfocused, slip-of-the-tongue affair; the prosecutor hammered the point four times in four ways. If there was any doubt that these questions focused on the post-arrest period, the prosecutor removed such doubt at the outset of re-direct. Thus, the parties agree, and we with them, that the inaugural error below was the use of pre-arrest silence cases like Adams to judge a post-silence case like the one at bar. References to pre-arrest silence, on the one hand, seem to raise difficult and somewhat unresolved questions of law. Our decision in Adams is representative of some of these dilemmas. In Adams , as the Superior Court noted, the prosecutor asked a detective if he tried to speak to the defendant during the pre-arrest investigation. The detective said, "Yes[,] we did; however, he didn't want to speak to us." Adams , 104 A.3d at 513. After stating he identified himself as law enforcement, the prosecutor followed up: "[I]n response ... what did [the defendant] say?" and the detective replied, "He said he had nothing to say." Id. Defense counsel objected, contending these questions violated the defendant's right to remain silent—a deceptively simple objection that fractured this Court.
(See N.T., 8/7/2019, at 101 ("[1] After you read him his Miranda [w]arnings, he never told you that he didn't do anything to any of these kids? ... [2] He never denied doing anything to— ... [3] He never said[,] I didn't do this? ... [4] What did he say?").)
(See N.T., 8/7/2019, at 101 ("And was [Rivera] arrested based on the arrest warrant?").)
The opinion announcing the judgment of the Court, authored by Justice Baer, relied on a mix of state and federal law and concluded 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." Id. at 512-13. The prosecutor's questions, the opinion reasoned, did not violate this rule because they only contextualized the detective's pre-trial investigation for the jury; in particular, they helped to explain why law enforcement sought the defendant's DNA. But it was a "close[ ] case," the opinion admitted, especially because the second question brought up the defendant's "refusal to speak to the detectives despite being aware that they were law enforcement personnel." Id. at 517-18. Thus, the opinion "caution[ed] 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." Id. at 518. Finding no error, the opinion did not reach the question of harmlessness. See id. at 515 n.5. This Court's decision in Commonwealth v. Molina , 628 Pa. 465, 104 A.3d 430 (2014) (plurality), issued the same day as Adams , likewise involved pre-arrest silence, and likewise divided this Court. Acting on a lead that the defendant was holding a victim against her will, the detective traveled to the defendant's house, spoke with a resident who said the defendant was not there, and left his contact information. The detective and the defendant later spoke briefly over the phone, and the detective recounted this conversation at trial: "I asked him if he could come into our office and sit down and talk with me about the case, and he refused. He said he refused to come in." Id. at 433. Defense counsel did not object to this testimony, but when the prosecutor "accentuated [the] [d]efendant's refusal to go to the police station" during closings, defense counsel objected. Id. The prosecutor responded, "there's a sharp line drawn between pre-arrest silence and post-arrest silence." Id. at 434. The trial court judge agreed and overruled the objection. Again, this Court splintered.
The responsive opinions show the variety of not unreasonable views this subject tends to elicit. Chief Justice Castille concurred in the result but would have reached it on the grounds that the case "involve[d] a pre-arrest scenario" and so, in his view, the questions "did not impinge upon [the defendant's] constitutional rights, irrespective of whether the prosecution later exploited the reference." Adams , 104 A.3d at 518 (Castille, C.J., concurring). Justice Saylor dissented. He critiqued the opinion announcing the judgment of the Court's partial reliance on federal law, because he reasoned that Article I, Section 9 of the Pennsylvania Constitution "provides greater protection" than the Fifth Amendment to the United States Constitution. Id. at 518 (Saylor, J., dissenting). Nor was he persuaded by the "opinion's reliance on an exception pertaining to evidence introduced for another purpose, such as explaining the sequence of the investigation." Id. Indeed, he opined, "I find such a proposition to be a mere pretext," as the police would have sought to obtain the defendant's DNA "even if he had affirmatively professed his innocence," thereby rendering the pre-arrest silence questions irrelevant and unnecessary. Id. at 518-19. Finding the testimony violated Article I, Section 9, Justice Saylor would not have found it harmless, as the prejudice was not minor and he was not convinced there was overwhelming, uncontradicted evidence of guilt—i.e. , the defendant's alibi defense contradicted "all of the testimony from the Commonwealth's witnesses placing [him] at the scene of the crime." Id. at 520. Justice Todd likewise dissented. She stated: "I would not address whether the Fifth Amendment applies in the instant context, 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." Id. at 520-21 (Todd, J., dissenting). In addition, Justice Todd stressed that the defendant "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 charter precluded the Commonwealth from using that silence at trial." Id. at 521. Like Justice Saylor, Justice Todd would have found that "the Commonwealth's use of [the defendant's] pre-arrest silence may well have affected the jury's verdict and, thus, warrants retrial." Id.
The opinion announcing the judgment of the Court, also authored by Justice Baer, began by discussing Salinas v. Texas , 570 U.S. 178, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013), a then-recent pre-arrest silence case which fractured the United States Supreme Court. The opinion observed that "the constitutionality of the use of pre-arrest silence as substantive evidence has [also] split the federal circuit courts and state courts," so the opinion looked to our state constitution for an answer. Molina , 104 A.3d at 441. After a thorough analysis of state constitutional principles and Pennsylvania history, the opinion found that Article I, Section 9 of the Pennsylvania Constitution provides more protection than the Fifth Amendment to the United States Constitution on this issue and prohibits the use of pre-arrest silence as substantive evidence of guilt. Nonetheless, the opinion noted that pre-arrest silence may be admissible in certain circumstances to "impeach [a] testifying defendant with his prior statements, actions, or silence," as well as for purposes of the "fair response" doctrine. Id. at 447, 451. Ultimately, the opinion reasoned that the prosecutor in Molina used the questions above to exploit the defendant's pre-arrest silence as substantive evidence of guilt; that the testimony was, therefore, admitted in error; and that it was not harmless. Accordingly, the opinion announcing the judgment of the Court awarded a new trial. Another case cited by the Superior Court, DiNicola , also involved pre-arrest silence, but, unlike Adams and Molina , arose on collateral review. Defense counsel asked a detective "a series of leading questions implying [the detective's] investigative efforts were minimal and/or one-sided," which led to the detective explaining on cross-examination that the defendant refused to speak to him during his pre-arrest investigation. DiNicola , 866 A.2d at 331-32. Upon review, this Court concluded that defense counsel did not provide ineffective assistance for failing to object to such testimony, noting that "the Commonwealth's elicitation of the [detective's] testimony regarding this fact constituted fair response." Id. at 336. The next question was whether defense counsel provided ineffective assistance by opening the door to the testimony. See id. ("[T]his claim of ineffectiveness can be definitively resolved by going directly to a consideration of prejudice."). It was in this context, clearly linked to the resolution of this collateral claim, that we stated: "[T]he mere revelation of silence does not establish innate prejudice." Id. at 336-37. Ultimately, we reasoned: "Taken at face value, the revelation of silence in this case was limited to its context. ... [T]he reference to silence ... was circumspect; it was not used in any fashion that was likely to burden [the defendant's] Fifth Amendment right [under the United States Constitution] or to create an inference of an admission of guilt." Id. at 337. Thus, as we were not convinced that the absence of defense counsel's questions regarding the detective's pre-arrest investigation would have changed the outcome of the trial, we denied collateral relief. See id.
Summarizing Salinas , the opinion announcing the judgment of the Court noted:
Three justices in the lead opinion did not speak to the use of pre-arrest silence as substantive evidence and instead dismissed [the defendant's] claims because he did not expressly invoke the privilege against self-incrimination. ... Two concurring justices did not address the issue of express invocation but opined that [the defendant's] claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony. Finally, four dissenting justices determined that no ritualistic language was needed to invoke the right against self-incrimination.
Molina , 104 A.3d at 438 (citations omitted) (internal quotation marks omitted).
Justice Saylor, joined by Justice Todd, concurred, joining the lead opinion "subject to a few modest departures." Molina , 104 A.3d at 455 (Saylor, J., concurring). For one, Justice Saylor wrote to reiterate that our constitution forbids any reference to a defendant's "pre-arrest silence as substantive evidence of guilt regardless of whether an invocation may be discerned." Id. at 456. In addition, Justice Saylor was not sure, if it was a question of first impression, that he would "support the notion" that Pennsylvania recognizes an impeachment exception to the use of pre-arrest silence. Id. Chief Justice Castille and Justice Eakin dissented; the former viewed the question not as constitutional but evidentiary in nature, see id. at 460 (Castille, C.J., dissenting), while the latter stressed "this was not just a pre-arrest scenario—this was a pre-discovery-there-was-even-a-crime scenario." Id. at 464 (Eakin, J., dissenting).
The Commonwealth cites this sentence in its brief, and both courts below cited it in their opinions. This sentence has little, if any, relevance here. As its context shows, it arose in a pre-arrest silence case couched in the posture of collateral review. It should stay confined to that context and not extended to direct appeal, post-arrest cases like this one.
This Court, it seems, has struggled to create a uniform rule to govern references to pre-arrest silence (as have many other courts). We need not square the circle here. We discuss Adams , Molina , and DiNicola only to show all three unmistakably involved facts relating to pre-arrest silence and to say the Superior Court erred in bringing this batch of cases to bear here. As the prosecutor in Molina aptly put it, there is a "sharp line" bisecting harmless error review of testimonial references to pre- and post-arrest silence.
We appreciate the defendant's well-researched attempt to set forth a tidy harmless error rule to solve the pre-arrest silence conundrum. But as pre-arrest silence is not before the Court, this is not the occasion to opine, but in dicta , any more on such a rule.
Although not cited by the parties, Commonwealth v. Bolus , 545 Pa. 103, 680 A.2d 839 (1996), was the first decision from this Court to address pre-arrest silence and contains an interesting discussion on the matter. See Bolus , 680 A.2d at 842-845 (finding rationale in Jenkins v. Anderson , 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) "both instructive and persuasive" and determining that in certain circumstances Commonwealth may use pre-arrest silence to impeach testifying defendant).
The comparative age and the volume of state and federal precedent dealing with both types of references attests to this bisection. This Court, for instance, addressed post-arrest silence twenty-four years before we first addressed pre-arrest silence. As the post-arrest silence case law has developed, courts over the years have set forth a variety of rationales to explain the proscription. Some verge on the psychological. We need not recount them all here. For now, it seems sufficient to say, as this Court repeatedly has, that most jurors, most lay people, probably suppose that a truly innocent man would deny the charges upon his arrest. Hearing a defendant did not so deny, but instead stayed silent, the logic goes, may lead the jury to conclude or infer the defendant must be guilty. The problem with this, as this Court has historically viewed it, is that it effectively penalizes a defendant for exercising a right that the drafters of the Pennsylvania and United States Constitutions alike "deemed worthy of enshrinement." Grunewald v. United States , 353 U.S. 391, 426, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957) (Black, J., concurring). In total then, while the law concerning pre-arrest silence may be in some flux, we reaffirm the penalty rationale, as developed by the common law, as a sound (though not exclusive) basis to explain why references to post-arrest silence are proscribed. Accord, e.g. , Commonwealth v. Easley , 483 Pa. 337, 396 A.2d 1198, 1202 (1979) ("To approve the prosecutor's comment ... would penalize [the defendant] for exercising his constitutional privilege against self-incrimination.").
Admittedly, the idea that an innocent person would deny the charges against them at the first opportunity to do so has not been uniformly embraced by the courts, at least not in all contexts. Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), for instance, used the phrase "insolubly ambiguous" to describe the nature of an accused's silence in the face of the Miranda warnings. Doyle , 426 U.S. at 617, 96 S.Ct. 2240. Another jurist was wary of generalizations one way or the other. See United States v. Hale , 422 U.S. 171, 181, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (Burger, C.J., concurring) ("It is no more accurate than to say, for example, that the innocent rather than the guilty are the first to protest their innocence."). The late Justice Musmanno, in rejecting the "tacit admission rule" in Pennsylvania, likewise seemed to view silence as a quandary:
Who determines whether a statement is one which ‘naturally’ calls for a denial? What is natural for one person may not be natural for another. There are persons possessed of such dignity and pride that they would treat with silent contempt a dishonest accusation. Are they to be punished for refusing to dignify with a denial what they regard as wholly false and reprehensible?
....
It may be desirable and dramatic for the wrongly accused person to shout: ‘I am innocent!’ but not everybody responds spontaneously to stimuli. The accusation may be so startling that the accused is benumbed into speechlessness. There are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.
Commonwealth v. Dravecz , 424 Pa. 582, 227 A.2d 904, 906-07 (1967) (plurality). The late Justice Musmanno further observed:
In his funeral oration on Roscoe Conkling, Robert G. Ingersoll said: ‘He was maligned, misrepresented, and misunderstood, but he would not answer. He was as silent then as he is now—and his silence, better than any form of speech, refuted every charge.’ George Bernard Shaw said: ‘Silence is the most perfect expression of scorn.’ The immortal Abraham Lincoln summed up his philosophy on this subject in characteristic fashion: If I [were to try to] read[,] much less answer, all the attacks made upon me this shop might as well be closed for any other business.
Id. at 906 n.1.
We note that the rationale that failing to protect post-arrest silence penalizes individuals exercising their right to remain silent seems to be more a creature of common law than something so stringently derived from the text of the self-incrimination clause. Some jurists have asked, for instance, how a defendant is "compelled ... to be a witness against himself" via a reference to silence; it seems the same could be asked with respect to Article I, Section 9 of the Pennsylvania Constitution. See generally Salinas , 570 U.S. at 191-93, 133 S.Ct. 2174 (Thomas, J., concurring). Others have emphasized the right against self-incrimination was derived from the common law principle (embraced by William Penn, see Milton Cantor, Origins of the Fifth Amendment [ ], 117 Penn. L. Rev. 498, 505 (1969) ) of nemo tenetur seipsum accusare (loosely "no man is bound to accuse himself") and was included in the founding documents to forbid physical torture and compulsory testimony not for psychological theories about what a jury may make of a reference to at-trial or post-arrest silence. See Mark A. Godsey, Rethinking the Involuntary Confession Rule: Toward a Workable Test for Identifying Compelled Self-Incrimination , 93 Cal. L. Rev. 465, 480 (2005) ("[T]he doctrine of [n]emo tenetur and its abhorrence of the government use of torture and coercive interrogation techniques drove the self-incrimination clause's ultimate inclusion in the Bill of Rights."). Nevertheless, this Court and the United States Supreme Court have long embraced the "penalty" rationale (originally to bar comments on a defendant's decision not to testify and then in many other contexts, including the one here) to the point where it seems to have become a touchstone of American law. See Griffin v. California , 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (stating comment on defendant's decision not to testify is "a penalty imposed by courts for exercising a constitutional privilege"); Gillison v. United States , 399 F.2d 586, 588 (D.C. Cir. 1968) (extending Griffin to post-arrest silence); Haideman , 296 A.2d at 766-67 (endorsing that extension in Pennsylvania); In re Silverberg , 459 Pa. 107, 327 A.2d 106, 111 (1974) (explaining how basic gist of Justice Black's concurrence in Grunewald motivated full Court in Griffin ); Molina , 104 A.3d at 446 ("Since Griffin , the protection of a defendant's silence has become imbedded in our jurisprudence."). Indeed, not even those who hold a more textualist position would seem to propose that the idea be overruled. See, e.g. , Mitchell v. United States , 526 U.S. 314, 330, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) ("Principles once unsettled can find general and wide acceptance in the legal culture, and there can be little doubt that the rule prohibiting an inference of guilt from a defendant's rightful silence has become an essential feature of our legal tradition."); id. at 332, 119 S.Ct. 1307 (Scalia, J., dissenting) ("Although the latter assertion strikes me as hyperbolic, the former may be true—which is adequate reason not to overrule these cases, a course I in no way propose.").
For more than half a century, relying in part on the train of thought sketched in rough outline above, this Court has repeatedly signaled to the Commonwealth that referencing a defendant's post-arrest silence may imperil an entire case. In fact, as Rivera correctly notes, we have often deemed a single such reference—answered or not, curative instruction or not—offensive enough to the constitution and the principles it embodies as to call for a new trial.
This line of post-arrest silence cases begins fifty-one years ago with Haideman . There, the prosecutor asked the arresting officer, "When the constitutional rights [i.e., Miranda rights] were read to the defendant, did [he] say anything?" and the officer replied: "He didn't say nothing; he calmed down[,] and he shut up." Haideman , 296 A.2d at 766. The trial court judge overruled a defense objection and denied a motion for a mistrial. Later, another officer took the stand and mentioned the defendant's post-arrest silence. Initially, we stated: "Testimonial reference to an accused's silence ... at [the] time of arrest is ... constitutionally impermissible." Id. Being the first Pennsylvania case on the subject, we quoted various federal court decisions noting, for example, that such references "reduce[ ] to a hollow mockery" the right to remain silent, lead a jury "to infer guilt," present a defendant with a Catch-22 of "[y]ou have the constitutional right to remain silent, but if you exercise it, that fact may be used against you," and "penalize" a defendant for exercising his constitutional rights. Id. at 767-68 (citations omitted). Indeed, we noted Miranda itself forbids the prosecution from "introduc[ing] at trial the fact that the accused ‘stood mute or claimed his privilege.’ " Id. at 768 (quoting Miranda , 384 U.S. at 468 n.37, 86 S.Ct. 1602 ). It "must" be held, we concluded, that prosecutorial reference to a defendant's post-arrest silence is "reversible error," for to hold otherwise "would certainly impair and burden [a defendant's] constitutional privilege." Id. Thus, we granted the defendant a new trial.
Next, in Commonwealth v. Greco , 465 Pa. 400, 350 A.2d 826 (1976), the prosecutor asked an officer, "[d]id [the defendant] ever say anything to you?" and the officer replied, "[w]e had several conversations. I advised him ... that he had the right to remain silent, and he didn't actually make any statements other than general conversation." Id . at 827-28. We reiterated: "The law is clear. It is reversible error to admit evidence of a defendant's silence at the time of his arrest." Id. at 828. This rule, we explained, "reflects the [C]ourt's desire that an accused not be penalized for exercising his constitutional right[ ]" to remain silent. Id. Rejecting an argument that the prosecutor did not intend to cause prejudice, we noted prejudice in these settings does not depend on prosecutorial intent but is rooted in the idea that "[l]ay persons might conclude that the natural reaction of an innocent person would be a denial of any involvement in the crime charged." Id. The "failure to deny," we noted, "might thus be considered an unnatural reaction unless the accused was in fact guilty." Id. Testimony regarding post-arrest silence also "implies an admission of guilt." Id. "An admission of guilt," we continued, "constitutes highly prejudicial evidence and cannot be considered harmless error." Id . Again, we awarded the defendant a new trial.
In Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978), and like Greco , at issue was a single question—one the prosecutor asked a testifying defendant: "And on advice of counsel, you made no statement concerning the case[?]" Singletary , 387 A.2d at 656. We began by stressing "[i]t is a violation of the accused's constitutional privilege against self-incrimination to make reference to his silence while in police custody" because, as we noted in Haideman and Greco , such references "penalize" a defendant for exercising his constitutional right to remain silent. Id. at 656-57. Although not conducting a formal harmless error analysis, we did at least consider in Singletary whether a curative instruction from the trial court could stave off a mistrial. We ultimately found it could not; emphasizing, again as we did in Haideman and Greco , that "a lay person could and probably would consider this silence to be an unnatural reaction unless the accused was in fact guilty." Id. at 657. As such, and once more, we granted a new trial.
Next in this line is our seminal Turner decision. There was conflicting evidence in Turner as to whether "the gun was fired during the course of a struggle" or whether the defendant "stood over" the victim and shot him with intent. Turner , 454 A.2d at 538. The defendant testified in his own defense and maintained the shooting was in self-defense. During cross-examination, the defendant said he saw the victim shooting at him, prompting the prosecutor to ask: "Did you ever tell the police that somebody was shooting at you?" Id. Defense counsel objected before the defendant answered and, at a subsequent sidebar, moved for a mistrial. The trial court judge denied the motion, opting instead, after a sidebar, to give a lengthy curative instruction. Ultimately, the jury delivered a split verdict—it acquitted on murder but found the defendant guilty of manslaughter.
The instruction was as follows:
Ladies and gentlemen of the jury, I told you at the beginning of this trial, when I gave preliminary instructions, the only evidence you are to consider when you deliberate as to your verdict is what you hear from this witness stand. I told you specifically, as I recall, and I reiterate it now, that questions asked by either of the lawyers or even the court are not evidence. A question was just asked before we went to sidebar by the Assistant District Attorney for this witness, the defendant. It has not been answered. It was objected to, I sustained the objection, and that means you are to disregard that question, or I say to you now you are to disregard that question entirely, as though it had never been asked.
Turner , 454 A.2d at 538 n.2.
As in Haideman , Greco , and Singletary , we awarded the defendant in Turner a new trial. "It is clear," we began, "that ‘the privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury,’ " and we stressed that "[t]he prejudice to the defendant resulting from reference to his silence is substantial." Id . at 539 (quoting Haideman , 296 A.2d at 767 ). While it may be "efficacious" trial work for the Commonwealth to "uncover a fabricated version of events" from the defendant to later impeach him at trial, given what Doyle called the " ‘insolubly ambiguous’ nature of silence," we stated that the Commonwealth "must seek to impeach a defendant's relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial." Id. (quoting Doyle , 426 U.S. at 617, 96 S.Ct. 2240 ). In theory, we noted, post-arrest silence could be used if the defendant says at trial that he spoke to police when he did not, but otherwise, we repeated that a defendant may not be penalized "for exercising the right to remain silent." Id. at 540. We also held that for purposes of Pennsylvania law the timing of the Miranda warnings is not dispositive. See id. Finally, we declined to find the error harmless, stressing in particular the fact of a split verdict:
In order to draw conclusions from the verdict about what the jury believed, the Commonwealth's hypothesis about the jury's state of mind would have to be a necessary and sufficient explanation of the verdict. But the most obvious of alternative explanations presents itself: the jury may have delivered a compromise verdict. The jury may have decided that the Commonwealth's case was significantly bolstered by the reference to [the defendant's] post-arrest silence and that it would be appropriate to impose a verdict more severe than acquittal but less severe than murder. Verdicts are arrived at after many objective and subjective considerations and do not always conform perfectly to the instructions given by the court. Thus, no sound conclusions can be drawn from the verdict about what the jury believed concerning [the defendant's] credibility. To attempt to draw such conclusions is to speculate. As we cannot be sure that the jury would have resolved the issue in the same manner absent the improper reference, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict. Far from being harmless error, the reference may well have impermissibly contributed to the verdict.
Id. (citation and internal quotation marks omitted).
The most recent post-arrest silence, direct appeal case is Mitchell . There, the prosecutor asked the testifying defendant questions concerning both his pre-arrest and post-arrest silence. See Mitchell , 839 A.2d at 211-12. Noting that "[f]ollowing Turner , this [C]ourt has been consistent in prohibiting the post-arrest silence of an accused to be used to his detriment," we reasoned that one of the questions—"[I]sn't it correct that this is the first time ... that you ever told anybody publicly who killed your two cousins?"—violated Turner because it "anticipated an answer that would embrace [his] actions from the moment of the shooting through the time of his arrest and up until the day of trial." Id. at 213-14. Still, and even without advocacy from the Commonwealth, see id . at 215 n.11, we found the error harmless because "uncontradicted" evidence established, inter alia , that the defendant was at the scene of the crime at the time of the shooting. Id . at 215.
In finding harmlessness based on "uncontradicted" evidence, the Mitchell Court did not use the second modifier always attached to this test: "overwhelming," which prompted a strong dissent from Justice Saylor. See Mitchell , 839 A.2d at 217 (Saylor, J., dissenting). He also assailed the majority's "single-sentence comparative assessment concerning the impact of the prosecutor's reference" which, in his view, ignored "this Court's past recognition of the substantial potential for prejudice associated with silence in the face of confrontation with alleged criminal conduct." Id. at 218. He then made several points Rivera makes in his brief about how too easily finding constitutional violations harmless can erode substantive rights. Compare id. (pointing to Harry Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated? , 70 N.Y.U. L. Rev. 1167 (1995) for the idea that too willy-nilly a harmless error analysis may have "substantial consequences ... in terms of the erosion of constitutional rights"), with (Appellant's Br. at 39-44 (discussing how "undermining the harmless error rule undermines substantive protections").) Although three cases from this Court in the 1990's found that a mention to post-arrest silence did not warrant a new trial, none of them, like Mitchell , expressly found a Turner violation. See Commonwealth v. Crews , 536 Pa. 508, 640 A.2d 395, 404-05 (1994) (noting reference to post-arrest silence arose in extradition context—context "not familiar to most citizens" and "not one in which jurors would equate invocation of Fifth Amendment rights with an implicit admission of guilt"); Commonwealth v. Ragan , 538 Pa. 2, 645 A.2d 811, 827 (1994) (finding questions distinct from Turner because did not "specifically mention" whether defendant had spoken to police, word "dawn" hinted not "to speech at all, but rather, deals with [the defendant's] cognitive process," question was "ambiguous" as to pre- versus post-arrest period, and trial court gave "thorough" cautionary instruction); Commonwealth v. Nolen , 535 Pa. 77, 634 A.2d 192, 197 (1993) (determining that question—"[p]rior to your testimony here in this courtroom today, however, you have not testified yourself, have you?"—was permissible as "significance of this line of questioning was clear; it was an attempt on the part of the Commonwealth to establish the opportunity of [the defendant] to tailor his testimony in accord with what had already been testified in a manner that would benefit him" and, thus, did not violate Turner ). Whatever problems there may be with Mitchell , we need not overrule it at this juncture because, as discussed below, we find it distinguishable from the instant case in terms of the harmless error analysis.
All said, testimonial reference to a defendant's post-arrest silence is constitutionally off-limits; even a single reference, as reflected, risks reducing to rubble an entire prosecution. Here, the four questions-and-answers about Rivera's post-arrest, post- Miranda silence violated this fundamental rule; as we have said before, they reduced his right to remain silent to a "hollow mockery," Haideman , 296 A.2d at 767, "implie[d] an admission of guilt," Greco , 350 A.2d at 828, and created an illusion that he "was in fact guilty." Singletary , 387 A.2d at 657. By telling the jury that he "stood mute or claimed his privilege" after his arrest, the Commonwealth ultimately caught him in that disallowed Catch-22—"[y]ou have the constitutional right to remain silent, but if you exercise it, that fact may be used against you." Miranda , 384 U.S. at 468 n.37, 86 S.Ct. 1602 ; Haideman , 296 A.2d at 768 (citation omitted). In short, these references penalized Rivera for exercising his right to remain silent and were, therefore, a "constitutionally impermissible" infringement on that right. Turner , 454 A.2d at 540 ; Haideman , 296 A.2d at 766.
Nor can these questions-and-answers be saved by the "fair response" doctrine. As the Superior Court correctly and ably explained, questions about pre-arrest silence (such as those defense counsel asked on cross-examination) do not open the door for the Commonwealth to ask questions about post-arrest silence (which the prosecutor's questions on re-direct here clearly were). Furthermore, because Rivera did not testify that he spoke to police after he was arrested when he in fact did not, these questions cannot meet the (theoretical) Doyle exception. See Doyle , 426 U.S. at 619 n.11, 96 S.Ct. 2240 ; Turner 454 A.2d at 539-40. Lastly, as this is a direct appeal, Pierce and the added layers that attend to collateral appeals are immaterial.
In their briefs, both parties rely on post-arrest silence cases that arose in the context of collateral claims—i.e. , ineffective assistance of counsel. (See Appellant's Br. at 27, 31 (citing Commonwealth v. Clark , 533 Pa. 579, 626 A.2d 154, 155 (1993), and Costa , 742 A.2d 1076 ); Commonwealth's Br. at 15 (citing Spotz , 870 A.2d 822 ).) The courts below fell victim to the same imprecise reliance. See Rivera , 255 A.3d at 507 (citing Whitney , 708 A.2d at 478 ). It seems that there may be some disharmony across these cases. The "innately prejudicial" language in Clark , for example, seems hard to square with the "more exacting" language in Spotz and the "explicit reference" language in Whitney . Compare Clark , 626 A.2d at 157-58 n.7 ("[A]n impermissible reference to an accused's post-arrest silence constitutes reversible error unless shown to be harmless. Restated, we have concluded that because of its nature, an impermissible reference to the accused's post-arrest silence is innately prejudicial" and specifically declin[ed] to conduct a harmless error or prejudice analysis because "there is no question that the impermissible reference to a criminal defendant's post-arrest silence is prejudicial"), with Spotz , 870 A.2d at 834 ("[T]he test for prejudice in the ineffectiveness context is more exacting than the test for harmless error."), and Whitney , 708 A.2d at 478 ("Even 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."). In any event, when read in the context of each case, it is clear these sentences are referring to "prejudice" in the context of a collateral claim of ineffective assistance of counsel. Notably, as to such claims, the defendant bears the burden and must prove that, "but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." Spotz , 870 A.2d at 830. This case, in contrast, comes to us on direct appeal, where the burden is on the Commonwealth to prove beyond a reasonable doubt that the error was harmless. Mitchell , 839 A.2d at 214-15. At this juncture, then, we note this procedural distinction; caution that Costa , Clark , Spotz , and Whitney should stay cabined to the context of collateral claims; and leave resolution of whatever tension there may be in these cases addressing collateral claims for a post-arrest silence case which arises in the context of such a claim.
Although the Superior Court rightly found that the disputed testimony here was admitted in error, it then incorrectly relied on pre-arrest silence cases to conclude that the error was harmless because Rivera suffered, at most, minor prejudice. Mischaracterizing Adams as a post-arrest silence case, as Rivera accurately pinpoints, seems to have irrevocably poisoned this conclusion. We, therefore, turn to the question of harmless error ourselves. , III.
We recognize the question accepted for review hints at both state and federal law. As this Court has often interpreted Article I, Section 9 of the Pennsylvania Constitution to supply weightier armor than the Fifth Amendment to the United States Constitution in this area, it seems unnecessary to discuss whether the comments also violated the Fifth Amendment. See Molina , 104 A.3d at 443 ("[W]e have previously found [Article I,] Section 9 to provide greater protection than the Fifth Amendment."); Adams , 104 A.3d at 520-21 (Todd, J., dissenting). Indeed, the extent of these protections is even more pronounced in the post-arrest silence context. Compare, e.g. , Fletcher v. Weir , 455 U.S. 603, 605-07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (declining to extend Doyle due process rationale to post-arrest but preMiranda period) with Turner , 454 A.2d at 540 (rejecting Fletcher in favor of a "more restrictive" position). Furthermore, while the defendant discusses the federal regime, the majority of his brief relates to our law, as does the entirety of the Commonwealth's brief.
We do not necessarily disagree with the Commonwealth that defense counsel could have done more here. He could have, as counsel did in Turner , called for a sidebar, requested a curative instruction, or moved for a mistrial. Nevertheless, it would be an odd posture to require a litigant, having lost an objection, to then demand a curative instruction or move for a mistrial in order to stave off waiver. More significantly, it would be in tension with the Rules of Evidence. See, e.g. , Pa.R.E. 103(b) ("Once the court rules definitively on the record—either before or at trial—a party need not renew an objection ... to preserve a claim of error for appeal."). (See also Appellant's Reply Br. at 2-5 (discussing waiver).) Here, defense counsel timely objected to the prosecutor's question regarding Rivera's post-arrest, postMiranda silence, and the trial court overruled that objection. For this reason, and given that the grounds for the objection are evident from defense counsel's explanation and the context surrounding the objection as described previously, we are satisfied that the issue before this Court has been properly preserved in accordance with Pa.R.E. 103(a) (providing that claim of error in ruling to admit evidence is preserved if "a party, on the record[,] ... makes a timely objection[ ] ... and ... states the specific ground, unless it was apparent from the context"), and Pa.R.E. 103(b).
Initially, we agree with Rivera that the violation here cannot be set aside by the first prong of Hairston . See Hairston , 84 A.3d at 671 (allowing harmlessness finding where "the error did not prejudice the defendant or the prejudice was de minimis" (quoting Hawkins , 701 A.2d at 507 )). None of the factors that the Superior Court used in this case to support this conclusion are germane, as they were all derived from inapplicable authorities. It is true, as the Commonwealth notes, that the Superior Court at times appeared to correctly frame the case as one involving "post-arrest" and "post- Miranda " silence, see Rivera , 255 A.3d at 507-08, but it is apparent from the language the opinion uses (e.g. , "contextual and brief") and the cases it cites (e.g. , Adams and DiNicola ) that the heart of the analysis rested on pre-arrest silence cases. There is no, for instance, citation to Haideman , Greco , Singletary , Turner , or Mitchell , further illustrating the misframing; for none of these cases contain language like "contextual and brief," "rebutted the inference" or "used as substantive evidence of guilt," all of which pertain to pre-arrest silence. For its part, the Commonwealth cites, point-for-point, the same elements on which the Superior Court relied. (See Commonwealth's Br. at 16 (reference was contextual and brief, rebutted idea police "failed to interview" defendant, prosecutor did not bring up issue during closings or otherwise, and reference not used "as substantive evidence of guilt").) Again, all of this relates to pre-arrest silence, so none of it supports the conclusion that the disputed testimony here worked but minor prejudice. We do not attach a descriptor like "innate" or "presumptive" to quantify the prejudice a reference to post-arrest silence yields—many phrases have been used and several could work: "constitutionally impermissible," Haideman , 296 A.2d at 766 ; "highly prejudicial," Greco , 350 A.2d at 828 ; "substantial," Turner , 454 A.2d at 539 ; "substantial potential" for prejudice, Mitchell , 839 A.2d at 218 (Saylor, J., dissenting). We do, however, agree with Rivera that the phrase "de minimis" should not be used; at least for purposes of the Hairston harmless error test and in situations where, as here, a defendant does not testify that he spoke to police after he was arrested.
With the first prong of Hairston out, so is the second, as the Commonwealth makes no argument that the error was "merely cumulative" of other evidence introduced at trial. Hairston , 84 A.3d at 671 ("[T]he erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence." (quoting Hawkins , 701 A.2d at 507 )). As such, the only way that the Commonwealth can carry its burden of proving harmlessness is if it shows, beyond a reasonable doubt, that the third prong of Hairston —which requires that "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"—has been met. Id. at 671-72 (quoting Hawkins , 701 A.2d at 507 ). We are not persuaded that the Commonwealth has carried this burden.
The Commonwealth's case rested almost entirely on the testimony of the four victims, Florencia, and to a lesser degree S.M.'s mother. Its remaining five witnesses either testified in generalities—such as Ms. Vandewark (the forensic interviewer), Ms. O'Connor (the nurse who examined the victims), and Trooper Higdon (who detailed his investigation)—or to information not necessarily essential to the allegations, including E.P. (C.P.'s father who stated in general terms that C.P. acted "weird") and Jared Smith (the paramedic who responded to the lollipop incident). Rivera's case-in-chief, as well, relied substantially on testimony—primarily from Katherin, who explained why she chose to testify for the defense, and from Rivera himself, who denied the allegations, developed the mother's possible motives to lie, and provided a partial alibi for some of the accusations. Viewing the record as a whole, we tend to agree with Rivera that the trial was a "credibility contest from the start" and that the jury "was faced with a question of credibility"—i.e., whether to believe the victims and Florencia or Rivera and Katherin. (Appellant's Br. at 7); Fulton , 179 A.3d at 495.
Further, our review of the record reveals, as Rivera argues, that the defense "vigorously" challenged the credibility of several of the Commonwealth's witnesses, especially Florencia. (Appellant's Br. at 8.) In general, then, most of the relevant testimony from the Commonwealth's witnesses appears to have been "contradicted," if not on cross-examination, then by Rivera's own case-in-chief. Hairston , 84 A.3d at 672. Under one of the central premises of the penalty rationale explained above, namely, that an innocent man would not remain silent upon his arrest but would assert his innocence, see Greco , 350 A.2d at 828, when the jury heard, four times, that Rivera did not deny his guilt, we cannot say, for sure, that this did not undermine his credibility. Particularly in view of the centrality of credibility to this case, it is not improbable that the admission of this testimony "might have contributed to the conviction." Commonwealth v. Story , 476 Pa. 391, 383 A.2d 155, 164 (1978) (quoting Commonwealth v. Davis , 452 Pa. 171, 305 A.2d 715, 719 (1973) ). Moreover, setting aside the contested testimonial evidence, it is difficult to see "overwhelming" and uncontradicted evidence of Rivera's guilt here. Hairston , 84 A.3d at 672 (quoting Hawkins , 701 A.2d at 507 ); contra Mitchell , 839 A.2d at 214-15. In the context of this case, then, we cannot say beyond a reasonable doubt that "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." Hairston , 84 A.3d at 671-72 (quoting Hawkins , 701 A.2d at 507 ). Because none of the three Hairston prongs are met, we conclude that the allowance of the constitutionally impermissible testimony here was not harmless.
Two other factors support our conclusion. The first factor being the absence of a sufficient curative instruction. See Story , 383 A.2d at 165 n.18 ("One factor to be considered by an appellate court assessing the impact of an error is whether the trial court instructed the jury to disregard the information which was improperly brought to its attention. Adequate cautionary instructions may minimize the impact of an error so as to render it harmless."). Here, the only thing the trial court judge told the jury after allowing the disputed testimony was "[o]kay[,] and just to [defense counsel's] point, that is his right as a defendant, okay, [c]onstitutional [r]ight." (N.T., 8/7/2019, at 102.) It is hard to classify this brief remark as "[a]dequate," Story , 383 A.2d at 165 n.18, especially when compared to the more thorough instruction this Court found inadequate in Turner , see Turner , 454 A.2d at 538 n.2. The second factor supporting our conclusion is the split verdict. We discussed what may be gleaned from a split verdict at some length in Turner , and we reaffirm that discussion here. See id . at 540.
The trial court gave "preliminary" and "concluding" instructions to the jury and suggested that both of these also allayed any potential prejudice. (See N.T., 8/6/2019, at 6, and N.T., 8/8/2019, at 166.) As to the preliminary instructions, we cannot locate a case endorsing the idea that an instruction given prior to unconstitutional testimony can be said to cure the prejudice of later-in-time testimony. Further, our review of the concluding instructions cited above reveals phraseology in generalities that is not specifically tailored to address the error at issue.
As a final matter, the second conjunctive part of prong three of the harmless error test provides that "the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict." Hairston , 84 A.3d at 672 (emphasis added) (quoting Hawkins , 701 A.2d at 507 ). Having found a constitutional violation, one of a not petty magnitude, it is difficult to understand how the same might ever be classified as "so insignificant." Id. Indeed, we do not take lightly Rivera's suggestion that too free a use of the harmless error doctrine in the constitutional setting can be a slippery slope. In a broader sense, we recognize that the concept of harmless error is, as former Chief Justice Robert Traynor of the California Supreme Court famously described it, a "riddle." See, e.g. , Story , 383 A.2d at 168 ("What clues are there in cold print to indicate where the truth lies? What clues are there to indicate where the half-truth lies?") (quoting Robert Traynor, The Riddle of Harmless Error , 20-21 (1970)). As we succinctly said in Story :
The harmless error rule derives from the notion that although an accused is entitled to a fair trial, he is not entitled to a perfect one. The harmless error rule can save the time, effort, and expense of unnecessary retrials where the defendant has not been prejudiced by an error. But courts must be careful in applying the harmless error rule, for if the violation of a rule is too readily held harmless, the importance and effectiveness of the rule is denigrated.
Story , 383 A.2d at 164 (citations omitted). Few rules seem more important than constitutional ones.
In all, while the Commonwealth rightly notes the prosecutor did not bring the issue up at closings or otherwise, considering the constitutional right at stake; our case law; the repeated, intentional, and court-sanctioned nature of the inquiry; the centrality of credibility in this case; the extent to which these questions probably undermined Rivera's credibility; the lack of physical evidence; the absence of an adequate curative instruction and the split verdict, we reverse the judgment of the Superior Court in part and, as we did in Haideman , Greco , Singletary , and Turner , award Rivera a new trial.
The Superior Court's judgment is reversed insomuch as it affirmed Rivera's convictions on the ground that Rivera was not entitled to a new trial based on the erroneous admission of evidence of Rivera's post-arrest, postcer silence. To the extent that the Superior Court rendered holdings on issues not before this Court, this Opinion does not disturb those holdings, though it does render moot that court's award of relief insofar as it granted a new trial and resentencing on grounds not addressed herein.
Chief Justice Todd and Justices Donohue, Dougherty and Wecht join the opinion.
Justice Wecht files a concurring opinion.
Justice Mundy files a concurring and dissenting opinion.
JUSTICE WECHT, concurring In a typical criminal investigation, there comes a point in time when the investigating police officer seeks to question the person believed to be the perpetrator. Sometimes, that questioning proceeds informally and early in the investigation, before the suspect is arrested or read his Miranda warnings. At other times, the suspect is formally interrogated at a police station, as the investigation culminates. Regardless of when the interaction occurs, and regardless of what it looks like, in that moment, the suspect is put to a decision. He must choose whether or not to invoke his constitutional right against self-incrimination. The decision that he makes will play a major role in both the course of investigation and the subsequent prosecution of the criminal case.
See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself , nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Const. amend V (emphasis added). The Pennsylvania Constitution similarly provides that a person "cannot be compelled to give evidence against himself." Pa. Const. art. 1, § 9.
Either decision—to speak or to remain silent—can in turn generate challenging legal issues. For instance, a suspect who chooses to talk to the police might later contest the adequacy of Miranda warnings (if given to him) or the voluntariness of his decision to waive his right to remain silent. Even more complicated problems arise when a suspect elects to remain silent, such as whether a prosecutor can then reference that silence in an effort to obtain a conviction. This is the ultimate question at the center of today's appeal. The answer to that question depends upon whether the suspect invoked the Fifth Amendment before or after being administered Miranda warnings, whether the prosecutor seeks to use the silence as substantive evidence or for purposes of impeachment, and whether the silence is offered as a fair response to a defendant's trial tactics. Further complicating the matter, each of these scenarios implicates different governing legal standards. What results is a complex web of legal precepts that trial courts must navigate—often on the fly during the heat of a tense criminal trial—with potentially severe and prejudicial consequences.
See, e.g. , Commonwealth v. Johnson , 484 Pa. 349, 399 A.2d 111, 112-13 (1979) (outlining the appellant's contention that the Miranda warnings administered to him by police officers constitutionally were inadequate).
See, e.g. , Commonwealth v. Barry , 500 Pa. 109, 454 A.2d 985, 987 (1982) (summarizing a juvenile appellant's argument that the waiver of his Miranda rights was not voluntary).
It is easy to become entangled in the complexities of this area of the law and to apply an incorrect standard. Here, by applying pre- Miranda standards to a post- Miranda case, the Superior Court did exactly that. The Majority successfully and accurately untangles the knot woven by the Superior Court's conflation of two separate legal standards. I join the Majority Opinion in full. I write here to suggest how prosecutors can better avoid introducing prejudice into trials that implicate this area of law.
In our legal system, the privilege against self-incrimination is no mere technicality. To the contrary, it stands among only a few other rights as truly fundamental to the "American concept of ordered liberty." The "right of the accused to resist any effort to force him to assist in his own prosecution" is an " ‘essential mainstay’ of our constitutional system of criminal justice." "The privilege constitutes an essential restraint upon the power of the government, and stands as an indispensable rampart between that government and the governed." As the Supreme Court of the United States explained in Murphy v. Waterfront Commission of New York Harbor :
Commonwealth v. Cosby , ––– Pa. ––––, 252 A.3d 1092, 1139 (2021) (citing Commonwealth v. Taylor , 659 Pa. 88, 230 A.3d 1050 (2020) ).
Michael Hor, The Privilege Against Self Incrimination and Fairness to the Accused , Sing. J. Legal Stud. 35 (1993). The author offers the following with regard to the privilege against self-incrimination:
Perhaps there is no area in which the discrepancy between theory and practice is greater than in the privilege against self-incrimination. Conceptually, it would seem that if there is any single organizing principle in the criminal process, it is the right of the accused to resist any effort to force him to assist in his own prosecution. It provides substance to the common law ideal of a fair trial through an adversarial or accusatorial process. The parties to a criminal prosecution are seen as competitors and the trial the competition. The prosecution is to use its own resources to gather and marshal the evidence without the unwilling assistance of the accused, and the accused is left to defend himself if the prosecution succeeds in making out a case against him. It is thought to be behind key principles of criminal justice like the voluntariness rule for confessions, the discretion to exclude improperly obtained evidence and the presumption of innocence.
Id. (footnote omitted).
Cosby , 252 A.3d at 1138 (quoting Malloy v. Hogan , 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) ).
Id. at 1138-39.
378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).
The privilege against self-incrimination "registers an important advance in the development of our liberty—‘one of the great landmarks in man's struggle to make himself civilized.’ " Ullmann v. United States , 350 U.S. 422, 426 [76 S.Ct. 497, 100 L.Ed. 511] (1956) [(quoting ERWIN N. GRISWOLD, THE FIFTH AMENDMENT TODAY 7 (1955))]. It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load," 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life," United States v. Grunewald , 233 F.2d 556, 581-582 [(1956)] (Frank J., dissenting), rev'd 353 U.S. 391 [77 S.Ct. 963, 1 L.Ed.2d 931] (1957) ; our distrust of self-deprecatory statements;
and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent." Quinn v. United States , 349 U.S. 155, 162 [75 S.Ct. 668, 99 L.Ed. 964] (1955).
Id. (quotation marks, punctuation, and citations modified; footnote omitted).
"Most, if not all, of these policies and purposes are defeated when a witness ‘can be whipsawed into incriminating himself[.]’ " The right against self-incrimination cannot serve these policies and purposes if a person can be punished for his decision to invoke the right. Such punishment occurs when that decision is used against that defendant later at trial.
Id. (quoting Knapp v. Schweitzer , 357 U.S. 371, 385, 78 S.Ct. 1302, 2 L.Ed.2d 1393 (1958) (Black, J., dissenting)).
Griffin v. California is illustrative. There, a capital defendant elected not to testify in the guilt phase of his trial. The prosecutor seized upon the decision, emphasizing to the jury that, while the murder victim could not explain what had happened on the night in question, the defendant could, but refused to do so. The trial court instructed the jury that, while the defendant had a constitutional right not to testify, if he chooses to exercise that right, or if he chooses to take the stand but fails to explain the evidence against him, then the jury could consider any uncontested or unexplained evidence (and reasonable inferences) to be true. The court cautioned the jury that the decision not to testify did not create a presumption of guilt nor did it relieve the prosecution of its burden. Nonetheless, the trial court permitted the jury to consider the invocation of the Fifth Amendment against the defendant. The defendant was convicted and sentenced to death.
380 U.S. 609, 610, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
Id. at 610-11, 85 S.Ct. 1229.
Id. at 610, 85 S.Ct. 1229.
Id. at 611, 85 S.Ct. 1229.
The Supreme Court of the United States reversed. The Court noted that any "comment on the refusal to testify" harkened back to the long-abandoned "inquisitorial system of criminal justice," a system forbidden by the Fifth Amendment. The prosecution's exploitation of the decision to remain silent at trial imposes a "penalty ... for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." In both federal and state trial, the Court held, the Fifth Amendment "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is [substantive] evidence of guilt."
Id. at 614, 85 S.Ct. 1229 (citing Murphy , 378 U.S. at 55, 84 S.Ct. 1594 ).
Id. at 614, 85 S.Ct. 1229.
Id. at 615, 85 S.Ct. 1229.
Although a defendant's silence can never be used as substantive evidence, the same cannot be said for its use as impeachment evidence. One year after Griffin , the Court decided Miranda , which permanently altered the way in which police officers can interview suspects and in which prosecutors can use confessions at trial. To safeguard the right against self-incrimination, the Miranda Court developed a set of "prophylactic rules." Those rules aim to ensure that the decision whether to speak to the police is a knowledgeable and voluntary one. Once a police officer takes a person into custody, the officer must advise the person immediately "that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to an interrogation." Silence in the wake of these warnings is "insolubly ambiguous." The decision may be the product of fear, confusion, or lack of trust. It may be a calculated decision that one makes in an effort to protect oneself. Or, it "may be nothing more than the arrestee's exercise of these Miranda rights."
Michigan v. Tucker , 417 U.S. 433, 439, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).
Doyle v. Ohio , 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
Id.
Id.
Although the warnings expressly inform suspects that anything said may be used against them at trial, the warnings offer "no express assurance that silence will carry no penalty." Nonetheless, "such assurance is implicit to any person who receives the warnings," and it would be "fundamentally unfair" to punish someone for his or her silence. For these reasons, in Doyle v. Ohio , the Supreme Court held that the Due Process Clause of the Fourteenth Amendment prohibits prosecutors from using a defendant's post- Miranda silence to impeach that defendant when he or she later testifies at trial.
Id. at 618, 96 S.Ct. 2240 (emphasis added).
Id.
Id. at 619, 96 S.Ct. 2240.
The same is not true when the invocation of silence precedes the administration of Miranda warnings. When there are no warnings, there is no implicit assurance that the suspect's silence will not be punished. Thus, pre- and post- Miranda silence are not the same for purposes of the Due Process Clause. In Jenkins v. Anderson , the Supreme Court held that, because there can be no breach of Miranda 's implicit promise in pre- Miranda invocations of silence, a defendant can be impeached with that silence without violating either the Fifth or Fourteenth Amendments. Similarly, in Fletcher v. Weir , the Supreme Court held that a defendant can be impeached with a post-arrest invocation of silence without violating due process when no Miranda warnings are given.
Jenkins v. Anderson , 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (explaining that, because the decision to remain silent occurred before arrest and before Miranda warnings were given, "the fundamental unfairness present in Doyle is not present").
Id. at 238, 240, 100 S.Ct. 2124. The Supreme Court also noted that the use of a defendant's decision to invoke his right to remain silent as impeachment evidence differs significantly from the use of the same as substantive evidence. The latter is offered by the prosecutor as evidence of guilt during the prosecution's case-in-chief, without regard to whether the defendant elects to testify in his own defense. The former, on the other hand, can only be raised by a prosecutor when the defendant takes the stand, and "follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial." Id. at 238, 100 S.Ct. 2124. The reasons that these two types of evidence are treated differently in this area of law are self-evident.
455 U.S. 603, 605-07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam ).
Thus, the use of silence as impeachment evidence depends largely upon if, and when, Miranda warnings are provided to the suspect. However, Doyle 's rule against the use of post-arrest, post- Miranda invocations of silence as impeachment evidence is not an ironclad prohibition against any use of the evidence. In United States v. Robinson , defense counsel told the jury during closing arguments that the prosecutor "had not allowed [the defendant] to explain his side of the story." The prosecutor responded during his own closing argument, emphasizing to the jury that the defendant "could have taken the stand and explained it to you[.]" The Supreme Court characterized the prosecutor's comment as a "fair response" to the defense's argument, and found no violation of the Fifth Amendment when the prosecution utilized the defendant's post- Miranda silence in this manner. The Robinson Court acknowledged that, in Griffin , the Court had proscribed the use of silence when it was done without legal prompt, i.e. , when the prosecutor did it upon his own initiative. The "fair response" doctrine is something entirely different:
485 U.S. 25, 26, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988).
Id. (citation to the record omitted).
Id. at 32, 108 S.Ct. 864.
It is one thing to hold, as we did in Griffin , that the prosecutor may not treat a defendant's exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence. There may be some "cost" to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one.
Id. at 33-34, 108 S.Ct. 864.
This Court has recognized the "fair response" doctrine as a necessary device because "the protective shield of the Fifth Amendment may not be converted into a sword that cuts back on an area of legitimate inquiry and comment by the prosecutor on the relevant aspects of the defense case."
Commonwealth v. Copenhefer , 553 Pa. 285, 719 A.2d 242, 251 (1998) (citations omitted).
Commentary upon a defendant's earlier silence is more restricted under the Pennsylvania Constitution than under the United States Constitution. In Commonwealth v. Turner , the defendant testified that he shot and killed the victim in self-defense. On cross-examination, the prosecutor asked the defendant if he had explained his version of events to the police. In fact, the defendant had never spoken to the police, and the police had never provided the defendant with Miranda warnings. The trial court sustained a defense objection to the question, and provided a cautionary instruction to the jury. The defendant was convicted of voluntary manslaughter.
499 Pa. 579, 454 A.2d 537, 538 (1982).
Id.
On appeal to this Court, we first noted that, pursuant to Fletcher , under the United States Constitution, a defendant's pre- Miranda silence may be used to impeach the defendant's testimony at trial. However, that principle is inconsistent with how Pennsylvania has "traditionally viewed" references to a defendant's choice to remain silent. The problem, we explained, is that there is a "strong disposition" for jurors to interpret invocations of silence as implicit admissions of guilt:
Id. at 539.
Id. (citing Commonwealth v. Singletary , 478 Pa. 610, 387 A.2d 656, 657 (1978) ; Commonwealth v. Greco , 465 Pa. 400, 350 A.2d 826, 828 (1976) ; Commonwealth v. Haideman , 449 Pa. 367, 296 A.2d 765, 767 (1972) ).
"We would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt." Walker v. United States [404 F.2d 900 (5th Cir. 1968)], ... It is
clear that "[t]he privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury." Slochower v. Board of Higher Ed. of N.Y. [350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956)].
Id.
Because the resultant prejudice from such a reference was "substantial," this Court was concerned that allowing prosecutors to use silence to impeach the particulars of the defendant's in-court testimony generated too high a risk of injecting that prejudice into the trial. The value of such impeachment was not "sufficiently probative" to "warrant allowance of any reference at trial to the silence." This Court instead approved a much more limited use:
Id.
the Commonwealth must seek to impeach a defendant's relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial. Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when in fact he remained silent. Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.
Id. at 539-40 (citation omitted).
In other words, in Pennsylvania, a prosecutor may only impeach a testifying defendant if that defendant alleges that his in-trial testimony is consistent with what he told the police earlier. If, in fact, he never spoke to the police, and never provided the police the version he conveyed to the jury, then the prosecutor may reveal to the jury through cross-examination that the defendant had maintained his silence prior to trial.
The Turner Court deviated from the United States Supreme Court's ruling in one other substantive way. While the United States Supreme Court's jurisprudence in this area of law hinges largely upon when the invocation of silence occurs in relation to the provision of Miranda warnings, this Court took a much more expansive view of the right to remain silent, and found that the provision of Miranda warnings largely is irrelevant to whether the defendant can be asked about his silence at trial. Noting that Article I, Section 9 of the Pennsylvania Constitution explicitly guarantees that an accused "cannot be compelled to give evidence against himself," our Court refused to limit that protection only to circumstances where there is governmental inducement of the exercise of the right." Miranda warnings (or their absence) do not affect "a person's legitimate expectation not to be penalized for exercising the right to remain silent."
Pa. Const. art. I, § 9.
Turner , 454 A.2d at 540.
Id.
To summarize, whether in federal court or state court, a prosecutor can never introduce a defendant's invocation of silence as substantive evidence. There are two exceptions to this rule: use of silence as impeachment, and use of silence as a "fair response" to an argument or assertion of the defense. Under federal law, a prosecutor is free to impeach the defendant's in-court testimony with the mere fact of the defendant's earlier silence. Under Pennsylvania law, the prosecutor can impeach the defendant's testimony with his prior silence only if the defendant states that his in-court version of events is consistent with what he told the police, and if this, in fact, is false because the defendant never spoke to the police.
See Griffin , 380 U.S. at 615, 85 S.Ct. 1229 ; Commonwealth v. Molina , 628 Pa. 465, 104 A.3d 430, 451 (2014) (plurality) (holding that admission of a defendant's pre-arrest silence as substantive evidence violates the constitutional privilege against self-incrimination).
Those are the rules. And there are consequences for violating them. As the Turner Court emphasized, the overwhelming concern with erroneous references to a person's silence is the inherent inclination of lay jurors to interpret the decision to remain silent as a tacit admission of guilt. It is natural for a person to expect an innocent person to proclaim such innocence at the first, and every, opportunity to do so. It is all too easy to conclude that a person who declines to do so must be guilty. This line of thinking is difficult, if not impossible, to erase from a juror's mind. Furthermore, the prejudice that results from this assumption effectively imposes a penalty upon a defendant for exercising the rights guaranteed to him by our Constitutions.
See also Singletary , 387 A.2d at 657 (explaining that "a lay person could and probably would consider this silence to be an unnatural reaction unless the accused was in fact guilty").
See Haideman , 296 A.2d at 767-78.
References to this "highly prejudicial evidence" do not, however, warrant automatic reversal. Notwithstanding this Court's concern that the privilege against self-incrimination would be reduced to a "hollow mockery" if courts permitted its invocation to be treated as a tacit confession of guilt or as a presumption of perjury, courts still must examine whether an errant reference was harmless or was made in a way unlikely to provoke such concerns. Courts must be careful to avoid making the same mistake that the Superior Court made in this case. Like so many aspects of the law governing invocations of silence, the applicable rules and concerns differ based upon the juncture at which the invocation of silence occurred. For instance, in Commonwealth v. Whitney , we held that, "[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." Similarly, in Commonwealth v. DiNicola , we cautioned that "the mere revelation of silence does not establish innate prejudice." But, as the Majority correctly highlights, these cases involve pre-arrest silence, not post-arrest silence. Whether a pre-arrest reference amounts to reversible error depends upon whether the jury is likely to construe the silence as a tacit admission of guilt, or whether the reference was "limited to its context" or "circumspect." Importantly, the Majority reminds that references to post-arrest silence engender much more than de minimis prejudice. As the Majority notes, when reviewing the impact of such errors, courts cannot lose sight of the fact that we previously have deemed them to be "constitutionally impermissible," "highly prejudicial," and "substantial." I agree that, while such errors do not amount to structural error, it is hard to fathom how an error of such magnitude—one that all but guarantees substantial prejudice—can at the same time be characterized as causing "insignificant" prejudice for harmless error purposes. Any harmless error analysis must recognize that this type of error is substantial, and must appreciate the magnitude of the prejudice that is conveyed to the jurors' minds when such evidence is introduced. Mindful of these concerns, this Court in Molina wisely reminded trial judges that "it is far worse to conclude incorrectly that the error was harmless than it is to conclude incorrectly that the error was reversible." For all the reasons outlined by today's Majority, the error in this case was not harmless, and a new trial is warranted.
Greco , 350 A.2d at 828.
Turner , 454 A.2d at 539 (citations omitted).
550 Pa. 618, 708 A.2d 471, 478 (1998) (citation omitted).
581 Pa. 550, 866 A.2d 329, 336-37 (2005). It is nearly impossible to remove from jurors' mind the prejudice that the United States Supreme Court and this Court have consistently acknowledged accompanies references to a person's silence. The risk is too great that jurors will misinterpret the decision to remain silent as an implicit admission of guilt. DiNicola 's pronouncement that prejudice does not inevitably follow references to a defendant's silence is inconsistent with this fundamental concern. This Court should revisit DiNicola and reconsider that conclusion in an appropriate case.
Maj. Op. at 1159-60; see also Commonwealth v. Adams , 628 Pa. 600, 104 A.3d 511 (2014) (plurality), another pre-arrest silence case relied upon by the Commonwealth in this appeal and by the Superior Court below.
DiNicola , 866 A.2d at 337. The appeal before us today arises from a post-arrest case, not a pre-arrest case. Thus, the "contextual" and "circumspect" measuring sticks are not at issue, and are not ripe for reconsideration here. However, this Court should avail itself of some future opportunity to reconsider these amorphous and boundless standards. With the substantial risk of prejudice attending errors in this area of law, trial courts should be given a clear, workable standard to use when deciding whether to allow prosecutors to reference a defendant's pre-arrest silence. "Contextual" and "circumspect" are neither clear nor workable benchmarks. They are vague terms that make it harder, not easier, for trial courts to render accurate decisions. "This is no rule. It is only muddle and confusion." Commonwealth v. Bishop , 655 Pa. 270, 217 A.3d 833, 850 (2019) (Wecht, J., dissenting). Today is not the day to re-examine this standard. But the day should come sooner rather than later.
Maj. Op. at 1159-60.
Id. (citations omitted).
See id . at 1161 n.20 (noting that, for purposes of a harmless error analysis, a court must contemplate whether the prejudicial effect of the error was "insignificant by comparison" to the balance of the trial evidence) (citations omitted).
Molina , 104 A.3d at 455 (quoting Commonwealth v. Davis , 452 Pa. 171, 305 A.2d 715, 719 (1973) ).
At trial, defense counsel asked the arresting Pennsylvania State Police trooper whether he had spoken to Rivera prior to arresting him. The trooper conceded that he had not done so. In response to this probe of the trooper's pre-arrest actions, the Commonwealth asked a series of questions that permitted the jury to hear that Rivera had invoked his right to remain silent after being arrested.
When the trooper testified that, after being arrested and after receiving his Miranda warnings, Rivera "never denied doing anything," defense counsel objected. The basis for the objection was the fact that the question would violate the privilege against self-incrimination. In a confounding ruling, the trial court stated that, while defense counsel was "correct," the Commonwealth was "just asking if he did." The trial court appeared to agree that a person is not required to make any statements to the police, nor to deny the allegations against him. At the same time, however, the trial court believed that the prosecution still may have its witness tell the jury that the arrestee did not make that denial. In the face of the governing law, the trial court told the trooper that "[he] may answer." The trooper stated at least four times that, after his arrest, Rivera did not deny the allegations, and that Rivera elected not to talk to law enforcement at all. Whether the trial court was confused or simply mistaken, the result of its ruling reduced Rivera's right against self-incrimination to a "hollow mockery." The ruling—as explained in front of the jury—was a violation of the privilege and broke the solemn promise of the Fifth-Amendment, that a person can remain silent and will not be punished for it.
Notes of Testimony ("N.T."), 8/7/2019, at 101-02.
Id. (defense counsel asserting that "[a] person doesn't have to deny.")
Id.
Id.
Id.
Turner , 454 A.2d at 539.
The Commonwealth's arguments in this appeal notwithstanding, the trial court did not state at the time that the trooper's testimony was a "fair response" to the defense's questions of the trooper regarding the post-arrest events. Instead, the trial court offered an unconstitutional (and contradictory) ruling. Nonetheless, had the court in fact asserted the "fair response" exception, for all of the reasons correctly explained by the Majority, that justification fails. Questions about a defendant's pre-arrest silence "do not open the door" to questions about that defendant's post-arrest behavior.
See Maj. Op. at 1157-58.
Id.
This area of law is perilous for prosecutors. The jurisprudence varies depending upon the forum in which the case arises, the timing of the relevant events of the investigation, and the shifting legal landscape of the trial. The consequences for eliciting an answer from a witness that violates the privilege are severe. The prejudice that results is nearly incapable of being overcome, no matter how strong the balance of the Commonwealth's evidence is. As the Majority aptly observes, an errant reference by the prosecutor "may imperil an entire case," and "risks reducing to rubble an entire prosecution."
Id. at 1153-54.
Id. at 1157-58.
With so much at stake, it is unnecessarily risky for prosecutors to delve into a defendant's silence in front of the jury without taking precautions to protect the case from prejudice and future reversal. Rather than diving straight into questions that implicate a defendant's decision to remain silent, prosecutors should put the issue to the trial court for a ruling before allowing the jury to hear it. Doing so may not eliminate all potential for prejudice, as the trial court still may issue an incorrect ruling. But, the amount of prejudice that questions on this topic can inflict on a case is obvious. If the prosecutor unconstitutionally inquires into a defendant's silence, that bell is nearly impossible to unring. The risk is not worth the reward. The all-but-certain reversal, and a subsequent retrial, can be avoided by giving the trial court the opportunity to keep the evidence out before the jury hears it.
There are two ways to do this. First, the prosecutor can file a motion in limine before trial and ask the trial court for leave to pursue the line of inquiry. This route rarely will be a viable option. The prosecutor would have to know that the defendant intends to testify and that he will testify in a way that would implicate the prosecutor's limited ability to raise the defendant's silence. This scenario rarely arises, as many defendants do not decide to testify until after the prosecution has presented its case-in-chief. And, even then, the prosecutor still does not know, and cannot know, what the defendant will say on the stand. The second option is a better one, and should be employed as a routine matter in these (and similar) circumstances. Before asking any questions that implicate the defendant's silence, regardless of whether that silence was pre- or post-arrest, the prosecutor should ask for a sidebar, approach the bench, and get a ruling from the trial court. That way, the prosecutor can argue to the judge how and why the questions are probative and relevant, and can invoke the impeachment exception or the "fair response" doctrine. The defense can raise any objections and can argue against the prosecutor's reasoning. Then, the trial court can make an informed ruling. If the information is not admissible, the trial court may preclude the questions before the jury hears them and is prejudiced, i.e. , before the entire prosecution is jeopardized.
No legal principle of which I am aware requires prosecutors to follow this protocol. But, it is the best way to ensure that the jury is not exposed to highly prejudicial information that it was not permitted to hear. This approach not only would conserve limited judicial resources, but it also would avoid subjecting victims, police officers, and the defendant to the inevitable retrial.
JUSTICE MUNDY, concurring and dissenting
I agree with the majority's conclusion that the prosecutor's line of questioning burdened Appellant's constitutional right to remain silent in the post-arrest timeframe, and that the error was not harmless beyond a reasonable doubt. Even errors of constitutional dimension, however, must be raised and preserved in order to form a basis for relief on direct review. Unlike the majority, I am not convinced Appellant preserved his constitutional claim in the present case. See Majority Op. at 1159 n.18.
See Interest of T.W. , ––– Pa. ––––, 261 A.3d 409, 424 n.9 (2021) (quoting Commonwealth v. Romberger , 474 Pa. 190, 378 A.2d 283, 286 (1977) ); Commonwealth v. Williams , 541 Pa. 85, 660 A.2d 1316, 1320 (1995) ; accord Commonwealth v. Veon , 637 Pa. 442, 150 A.3d 435, 456 n.33 (2016) (plurality) (citing cases).
As recited by the majority, after the prosecutor asked the trooper on re-direct whether Appellant denied committing the underlying conduct, defense counsel objected, noting: "A person doesn't have to deny." N.T., 8/7/19, at 101; see Majority Op. at 1144. That was the extent of counsel's objection, and the objection was immediately overruled. I agree with the majority that counsel was not obligated, on pain of waiver, to request a curative instruction in these circumstances, as counsel was aware the trial court did not believe there was any error to cure. See Majority Op. at 1159 n.18 (citing Pa.R.E. 103(b) ). However, evidentiary rule 103 provides that, to preserve a claim of error in an evidentiary ruling, a party must not only make a timely objection, but articulate "the specific ground" for the objection, "unless it was apparent from the context." Pa.R.E. 103(a)(1)(B) ; see also Interest of S.K.L.R. , ––– Pa. ––––, 256 A.3d 1108, 1124 (2021) (noting to preserve a claim that evidence was admitted in error, "the offended party must timely object to the admissibility of the evidence and state a specific ground for the objection").
As noted, the Commonwealth's questioning in this regard did not occur on direct examination but on redirect. Thus, the prosecutor delved into the topic only after defense counsel elicited on cross examination that the trooper had not talked to Appellant during his investigation. See id . at 100, reprinted in Majority Op. at 1144. In my view a reasonable argument can be made the questioning was admissible as fair response. The majority rejects this conclusion stating the testimony on cross only pertained to the pre-arrest timeframe. See Majority Op. at 1157-58. But that factual predicate is not entirely clear. While defense counsel's overall questioning related to the investigation, his specific question was, "you never talked to my client, did you?" and the answer was, "No, I attempted to." N.T., 8/7/19, at 100, reprinted in Majority Op. at 1144. The word "never" can reasonably be construed as covering both pre- and post-arrest, and evidently that is how the prosecution construed it. Still, the Commonwealth does not presently argue the testimony on redirect was fair response, and it is not our function to make a litigant's argument for it.
This is relevant because, although the intermediate court did not acknowledge it, the Commonwealth argued waiver on this very basis – i.e. , that Appellant's objection was insufficiently specific. See Brief for Commonwealth in Commonwealth v. Rivera , No. 1788 MDA 2019, at 7, 10, 13 (filed 9/4/20). Perhaps because it found the error harmless, the Superior Court never reached the Commonwealth's claim.
The Commonwealth renews the claim in its brief to this Court. See Brief for Appellee at 12-14.
As explained, defense counsel limited his reason for the objection to the assertion that "a person doesn't have to deny," and counsel did not request a sidebar or otherwise attempt to explain the basis for his objection any further than that. In so doing, counsel may have led the trial court astray by focusing on what the defendant was or was not required to say vis-à-vis the police – and this is confirmed by the trial court's follow-on remark to the jury that Appellant had the constitutional right not to deny culpability when speaking to the arresting officer.
In reality, though, the problem with the line of questioning was that Appellant's constitutional rights were infringed by having been asked at trial about his post-arrest silence. Even an unanswered question along those lines at trial has been deemed sufficient grounds for a new trial. See Commonwealth v. Turner , 499 Pa. 579, 454 A.2d 537, 538-40 (1982). Turner may have been an extreme case, but it illustrates that the problem only arises at trial, and it arises with any line of questions relating to the defendant's post-arrest silence. The Commonwealth's position is that the counsel's "doesn't have to deny" assertion does not suggest a constitutional right is infringed by trial testimony concerning post-arrest silence. Had defense counsel been more specific, it is possible the trial court would have recognized the testimony should have been excluded. Presumably, the reason our rules require such specificity is precisely so that the trial court is put on notice what the asserted violation really is. Thus, I do not find the Commonwealth's argument frivolous.
Now that this Court has reversed the Superior Court's holding that the error was harmless, the specificity issue is salient. But that issue is beyond the scope of the question we accepted for review, see Commonwealth v. Rivera , 273 A.3d 510 (Pa. 2022) (per curiam ), quoted in Majority Op. at 1146, and as such it is not before this Court. Accordingly, rather than render a conclusory finding that the Commonwealth's claim lacks merit, see Majority Op. at 1159 n.18, I would vacate the Superior Court's order and remand to that tribunal to consider the issue in the first instance. Because the majority instead awards Appellant a new trial, I respectfully dissent from such mandate.
See Briggs v. Sw. Energy Prod. Co. , 657 Pa. 38, 224 A.3d 334, 350 (2020) (explaining that "this Court is limited to the issue as it was framed in the petition for allowance of appeal") (citing Pa.R.A.P. 1115(a)(3) ; Commonwealth v. Metz , 534 Pa. 341, 347 n.4, 633 A.2d 125, 127 n.4 (1993) ).