Commonwealth v. Monahan ( 1988 )

KELLY, Judge:

In this case, we are called upon to determine whether an appellant’s pre-arrest refusal to explain his appearance at a state police barracks with a dead body and the murder weapon in his automobile may be admitted into evidence, and whether appellant’s post-arrest refusal to submit to a neutron activation test to determine whether he had recently fired a gun may be admitted into evidence. Despite appellant’s objections on constitutional grounds, we find as to both of these issues that the evidence was admissible.

On March 23,1982, at 1:40 a.m., appellant appeared at the Pennsylvania State Police Barracks at HoJlidaysburg, Pennsylvania, and informed the desk officer on duty that he wanted to report a dead body. He further indicated to the trooper that the body was in the automobile parked in front of the barracks. Two other troopers went out to the automobile and discovered the body of the victim, a young woman, located in the passenger’s side of the front seat. The victim had been killed by a single gun shot wound to the left side of the head. In addition, the murder weapon, a hand gun, was found in the automobile beside the victim. The weapon was later determined to have been stolen from its owner several years prior to the subject incident.

On the same day, a criminal complaint was filed, charging appellant with homicide, aggravated assault, recklessly endangering another person and receiving stolen property. Appellant was subsequently tried and convicted on all offenses; the homicide charge was determined by the jury to be first degree murder. A sentencing hearing was conducted on the first degree murder conviction, after which the jury returned a sentence of life imprisonment. Both post-trial motions and supplemental post-trial motions filed by new counsel were denied after a hearing. Appellant was sentenced to a term of life imprisonment on the first degree murder conviction and to a consecutive period of one to five years imprisonment on the receiving stolen property conviction. This timely appeal follows.

On appeal, appellant raises twelve separate issues ¹ in support of its contention that the trial court erred in failing to grant appellant’s post-trial motion for a new trial. We have reviewed the voluminous record, the briefs of the parties, and the well-reasoned opinion of the Honorable Richard A. Behrens. In this opinion, we shall address only two of the issues raised by the appellant. First, we will consider appellant’s contention that the trial court erred in admitting evidence of his pre-arrest silence. Second, we will consider appellant’s contention that the trial court erred in admitting evidence of his post-arrest refusal to submit to a neutron activation test. These contentions present issues of general significance to the public which warrant further examination. With respect to the ten remaining issues, we affirm on the basis of the trial court opinion.

I.

Appellant contends that the trial court erred in charging the jury that appellant’s failure to give an explanation to the police at the state police barracks as to what had occurred could be considered by the jury to assess appellant’s credibility. Testimony reveals that after appellant reported a dead body in his automobile parked outside the barracks, two police officers went out to investigate. At least one officer, Trooper William Emeigh, remained inside the barracks with appellant. Trooper Emeigh questioned appellant as to his name and address, which was obtained. However, when Trooper Emeigh asked appellant what had happened, appellant refused to answer.

The trial court charged the jury as follows:

... [Y]ou have heard evidence in this case concerning the failure of the defendant to give an explanation to the police at the State Police barracks as to what had occurred and also evidence regarding asking for an attorney or asking to speak with his attorney. You are hereby directed that a defendant’s silence and/or his request for an attorney or to speak to an attorney is not any evidence of guilt whatsoever and should not be considered as such. A defendant’s silence prior to being advised of his constitutional rights and prior to being taken into custody, however, may be considered in connection with a jury’s assessment of defendant’s credibility as a witness in this case in conjunction with all the other factors bearing on credibility but only for the purpose of credibility and only if you are satisfied that under all the circumstances then and there existing an explanation would naturally have been given by the defendant.

(N.T. 11/5/82 at 571-572). Appellant contends that this charge is inconsistent with the law of this Commonwealth.

Appellant alleges that his silence during the circumstances related above was not pre-arrest silence but rather post-arrest silence. In either event, appellant contends that Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), is dispositive of this issue. In Turner, our Supreme Court found as follows.

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. (Citations omitted). Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

499 Pa. at 583, 454 A.2d at 539, 540. (Emphasis added). The court in Turner ruled that if a defendant remains silent after his arrest but prior to receiving Miranda² warnings, his silence cannot be used to impeach his trial testimony. In the instant case, however, the trial court determined that appellant’s silence occurred at a pre-arrest stage.

An arrest may be accomplished by any act that indicates an intent to take an individual into custody and subject him to the control and will of the person making the arrest. Commonwealth v. Lovette, 498 Pa. 830, 450 A.2d 975 (1982) cert. denied 459 U.S. 1178, 103 S.Ct. 803, 74 L.Ed.2d 1025 (1983). An arrest may be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974); Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988).

The test is an objective one, i.e., viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized.

372 Pa.Superior Ct. at 241, 539 A.2d at 419. (Citations omitted). Finally, whether an encounter is to be deemed ‘custodial’ must be determined with reference to the totality of the circumstances. Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987); Commonwealth v. Lovette supra; Commonwealth v. Douglass, supra.

After appellant reported the dead body and before the officers returned from checking appellant’s car, appellant had not been arrested. The police had no corroborative information that there was a dead body in the car or any information that a murder might have occurred. Appellant had not suggested that he or anyone else had committed a crime. No physical or verbal restraints were placed upon appellant, nor had he yet been given his Miranda warnings. At that juncture, neither a formal arrest nor a custodial detention had occurred. Therefore, use of appellant’s silence during that time period by the Commonwealth to impeach appellant’s credibility as a witness³ did not violate appellant’s Fifth Amendment right against self-incrimination. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). The charge given by the trial court correctly stated the applicable law.

II.

Appellant next contends that the trial court erred by permitting the Commonwealth to introduce testimony of appellant's refusal to submit to a neutron activation test.⁴ At trial, testimony presented by the Commonwealth indicated that the results of the neutron activation test on appellant were negative. (N.T. 11/3/82 at 249). Trooper Lingenfelter explained, however, that the test was only effective if administered within two hours of the discharge (N.T. 11/3/82 at 193), and that appellant had refused to submit to the test between 2:30 a.m. and 3:00 a.m., on the morning appellant had appeared at the barracks, thus the test was not administered until 4:00 a.m. after a search warrant was finally obtained to proceed with the test. (N.T. 11/3/82 at 211). In his testimony, Trooper Lingenfelter explained further that a subject could remove the minute particles of barium and antimony by rubbing his hands together, by washing his hands or by putting his hands in his pockets. (N.T. 11/3/82 at 193). The inference the Commonwealth sought from this evidence was that appellant exhibited a consciousness of guilt in resisting the test, that appellant feared the test might reveal his guilt.

Appellant advances two theories in support of his contention that the trial court erred by permitting introduction by the Commonwealth of testimony concerning appellant’s refusal to submit to a neutron activation test. First, appellant argues that such testimony violated Pa.R.Crim.P. 305(B)(1)(b). Secondly, appellant argues that such testimony violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution.⁵

A.

In support of his first theory, appellant alleges that because the pre-trial discovery statement received from the District Attorney’s office listed the result of the neutron activation test as negative, the Commonwealth could not introduce his refusal to submit to the test into evidence. Appellant argues that introduction of this evidence by the Commonwealth constituted a violation of Pa.R.Crim.P. 305(B)(1)(b).⁶ We do not agree.

The trial court accurately stated that appellant is complaining about the way the Commonwealth used the information it had disclosed to appellant and not the Commonwealth’s failure to disclose the evidence itself. (Trial Ct.Op. at 13). We agree with the trial court that the Commonwealth properly disclosed the evidence as required, and that the Commonwealth’s theory of the case was protected as work product under Pa.R.Crim.P. 305(G) and not subject to disclosure. Here, no violation of Pa.R.Crim.P. 305(B)(1)(b) occurred.

B.

Appellant contends, alternatively, that his refusal was barred from introduction into evidence by the Fifth and Fourteenth Amendments of the United States Constitution. We cannot agree.

Initially, we note that the gathering of evidence by conducting a neutron activation test is analytically indistinguishable from the gathering of evidence through such tests and procedures as blood tests, breathalyzer tests, handwriting exemplars and fingerprints. In such instances, the items sought and/or refused are not testimonial in nature, and consequently fall within the ambit of the Fourth Amendment, not the Fifth Amendment.⁷

Though appellate courts of Pennsylvania have not previously dealt with this precise issue, we find that no error was committed in permitting admission of testimony regarding the appellant’s refusal to submit to the neutron activation test. In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held that the admission into evidence of a defendant’s refusal to submit to a blood-alcohol test does not offend the right against self-incrimination under the Fifth Amendment. The Court explained, “... that a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” 459 U.S. at 564, 103 S.Ct. at 922-23. The Court, in a footnote to the above quotation, stated: “[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.” 459 U.S. at 564 n. 15, 103 S.Ct. at 922-23 n. 15.⁸ Justice Traynor in People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393 (1966), held that a refusal to speak for voice identification was not a testimonial communication subject to the proscriptions of the Fifth Amendment. He likened evidence of such a refusal to that of flight, escape or intentional destruction of incriminating evidence, stating “by acting like a guilty person, a man does not testify to his guilt but merely exposes himself to the drawing of inferences from circumstantial evidence of his state of mind.” 421 P.2d at 397-98. We find Justice Traynor’s observation apt and applicable to this case.

Appellant argues, however, that a refusal to submit to a neutron activation test is not the same as a refusal to submit to a breathalyzer test because the latter situation is governed by an “implied consent” law which permits the prosecution to introduce such refusal at trial by specific statute, and that no such “implied consent” applies to the refusal in the instant case. This contention is without merit.

Statements of refusal to submit to reasonable physical evidence tests are admissible because they are the product of neither coercion nor interrogation, not because they are themselves physical evidence or because statutes authorize their admission. As Justice Traynor stated in People v. Ellis, supra,

A guilty party may prefer not to find himself in a situation where consciousness of guilt may be inferred from his conduct, but it can scarcely be contended that the police, who seek evidence from the test itself, will tend to coerce parties into refusing to take tests in order to produce this evidence.

421 P.2d at 397. If such a statement were the product of either coercion or interrogation, no statute could abbrogate the Fifth Amendment protections applicable to such communications. Succinctly, implied consent laws impact Fourth Amendment rather than Fifth Amendment privileges; pursuant to such statutes drivers consent to relinquish certain privacy interests for the privilege of driving, but retain options with respect to their conditional relinquishment of privacy, i.e. taking the test or refusing to take it and suffering the various collateral consequences. These Fourth Amendment considerations, however, are simply in-apposite, here.

C.

Appellant also contends that introduction of his refusal to take the test permitted speculation by the jury as to what the results of such a test would have been, thereby denying appellant due process of law. The Commonwealth could not establish the time the shot was fired which killed the victim. According to appellant, because the test could only be effective if it was administered within two hours of a gun shot, the jury was encouraged to speculate that the test results would have been different had appellant consented and the test had been conducted an hour or more earlier, and that appellant’s refusal to take the test therefore was equivalent to an admission of guilt. Appellant argues, essentially, that the trial court should have required the Commonwealth to establish that the test would have conclusively confirmed or dispelled appellant’s participation in the victim’s murder before permitting the Commonwealth to argue the inference of a consciousness of guilt. We cannot agree. While it is true that a prosecutor must limit statements to facts in evidence and legitimate inferences therefrom, Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985), we, nonetheless, find that appellant’s refusal to submit to the neutron activation test raised a legitimate inference of his “consciousness of guilt” whether or not the test could have established appellant’s guilt. The time which elapsed between the victim’s death and the request to take the test may have caused even an earlier test to be inconclusive. However, the inference of a consciousness of guilt arises not from the results such a test could actually have produced, but from the suspect’s fear of what the test might have detected. Under the circumstances of this case, we find that there is sufficient support for the inference of a consciousness of guilt to raise it above the level of mere speculation. Hence we find appellant’s final argument without merit.

We conclude, therefore, that the introduction into evidence of appellant’s refusal to submit to the neutron activation test was not violative of appellant’s rights pursuant to the Fifth and Fourteenth Amendments.

Based upon the foregoing, the judgment of sentence of the trial court is affirmed.

CAVANAUGH, J. files a dissenting statement.

1 . Appellant originally raised fourteen issues on appeal but two of the issues were conceded to be without merit by the appellant in his brief on appeal.

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3 . At trial, appellant testified that he kept the gun in his car on top of the transmission hump partially under the seat. He stated further that he was in the car with the victim and as he was getting out of it, he heard a click; he turned and saw the victim holding the gun. As he reached over to grab the gun, it went off and the victim shot herself. (N.T. 11/5/82 at 487-488). Appellant’s silence at the police station was used to raise an inference that appellant had made up this plausible scenario later in an attempt to escape justice, and that if the shooting had really occurred as appellant testified, appellant would have had no reason to refuse to tell the police his version of the facts when he first reported the dead body to them.

4 . The trial court explained that:

[a] neutron activation test is a test performed on the hands of a subject to determine whether he has discharged a firearm. (N.T. at 192). The test consists of putting a prepared solution onto cotton swabs and then swabbing the subject's hands. The test is designed to detect minute quantities of antimony and barium. The presence of both of these elements on the subject’s hands indicates that the subject has discharged a firearm. (N.T. at 192-193).

(Trial Ct.Op. at 11, footnote).

5 . Appellant has not raised, and hence, we do not address any Fourth Amendment implications of the procedures followed in this case. Because the police elected to wait for a warrant rather than to proceed with the minimally intrusive neutron activation test for highly evanescent evidence despite appellant's refusal to consent to the test, we have no occasion in this case to determine whether such deference to appellant’s wishes was constitutionally required where both probable cause and extreme exigence related to the evanescent nature of the evidence to be recovered by the test existed.

6 . Pa.R.Crim.P. 305(B)(1)(b) provides:

B. Disclosure by the Commonwealth

(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.

******

(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement and the identity of the person to whom the confession or inculpatory statement was made, v/hich is in the possession or control of the attorney for the Commonwealth.

7 . See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplar); Commonwealth v. Jefferson, 445 Pa. 1, 281 A.2d 852 (1971) (fingerprint evidence); Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356 (1984) (breathalyzer results); Commonwealth v. Moyer, 315 Pa.Super. 174, 461 A.2d 853 (1983) (fingerprint evidence); Commonwealth v. Moss, 233 Pa.Super. 541, 334 A.2d 777 (1975) (handwriting exemplar).

8 . See Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978) (admission into evidence of defendant’s refusal to submit to breathalyzer test is not violative of defendant’s privilege against self-incrimination); Commonwealth v. Robinson, 229 Pa.Super. 131, 324 A.2d 441 (1974) (admission into evidence of defendant’s refusal to submit to breathalyzer test under implied consent law is not violative of defendant’s Fifth Amendment privilege against self-incrimination); Commonwealth v. Rutan, 229 Pa.Super. 400, 323 A.2d 730 (1974) (same); see also State v. Stever, 107 N.J. 543, 527 A.2d 408 (1987) cert. denied-U.S. —, 108 S.Ct. 348, 98 L.Ed.2d 373 (1987) (admission into evidence of suspect’s refusal to submit to breathalyzer test did not violate suspect’s common law privilege against self-incrimination or suspect’s due process rights under State Constitution); State v. Bakst, 30 Ohio App.3d 141, 506 N.E.2d 1208 (1986) (no constitutional right to refuse to take a blood-alcohol test: Fifth Amendment does not prohibit the admission of a defendant’s refusal to take the chemical test or tests, or the admission of his silence when asked for the reason(s) for the refusal). For a detailed analysis of the United States Supreme Court’s holding in South Dakota v. Neville see Crump, Admission of Chemical Test Refusals after South Dakota v. Neville: Drunk Drivers Can’t Take the Fifth, 59 N.D.L.Rev. 349 (1983).