Commonwealth, Aplt. v. Molina, M. ( 2014 )

[J-55-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 25 WAP 2012
:
Appellant : Appeal from the Order of the Superior
: Court entered November 9, 2011 at No.
: 1948 WDA 2007, reversing and
v. : vacating the Judgment of Sentence of
: the Court of Common Pleas of
: Allegheny County entered March 15,
: 2007 at CP-02-CR-0007403-2004 and
MICHAEL MOLINA, : CP-02-CR-0009547-2004 and
: remanding.
Appellee :
ARGUED: September 10, 2013
CONCURRING OPINION
MR. JUSTICE SAYLOR DECIDED: NOVEMBER 20, 2014
I join the lead opinion, subject to a few modest departures.
In terms of these differences, first, I believe that it is unnecessary to determine
whether Appellant impliedly invoked his constitutional right against self-incrimination.
See Opinion Announcing the Judgment of the Court, slip op. at 12 (concluding that
Appellant effectuated an implied invocation). lf, as I believe it is here, silence can be
insolubly ambiguous (since there are many reasons why a person may decline to
respond when questioned), 1 I find it problematic to suggest a particular resolution
1
In addition to the reasons referenced by the lead Justices, see id. at 34, a person’s
decision not to speak to an officer who appears at his door, or whom he encounters in
(continued?)
concerning what was meant by Appellee’s refusal to speak. Indeed, as I read the lead
Justices’ ultimate disposition, with which I agree, Article I, Section 9 of the Pennsylvania
Constitution precludes the prosecution from using a defendant’s pre-arrest silence as
substantive evidence of guilt regardless of whether an invocation may be discerned.
See id. at 37.
Next, I have some difficulty to the degree the lead opinion treats “protection of
the adversary system” as an end unto itself. Id. at 28, 29. The adversarial litigation
scheme has its limits, and all actors involved in the criminal justice apparatus must both
respect individual liberties and refrain from overreaching. To the extent we accept that
silence is insolubly ambiguous in any given situation, and that the social science is
tending to confirm the suspicion that jurors may be inclined to misperceive silence as
evidence of guilt, see, e.g., Mikah K. Story Thompson, Me Thinks the Lady Doth Protest
Too Little: Reassessing the Probative Value of Silence, 47 U. LOUISVILLE L. REV. 21, 38-
49 (2008) (discussing various studies demonstrating the ambiguity of silence); accord
Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d 537, 539 (1982), it is troubling
that the Commonwealth would seek to advocate convictions based on silence. In this
regard, were it a matter of first impression, I am not certain that I would support the
notion that the Pennsylvania Constitution permits the use of a defendant’s silence –
where it is ambiguous but prejudicial – even for impeachment purposes.2
(?continued)
public, may stem from the notion, now widely known in our culture, that “anything he
says can be used against him in a court of law[.]” Miranda v. Arizona, 384 U.S. 436,
479, 86 S. Ct. 1602, 1630 (1966); see Dickerson v. United States, 530 U.S. 428, 443,
120 S. Ct. 2326, 2336 (2000) (explaining that Miranda warnings “have become part of
our national culture”).
2
In the present state of the constitutional jurisprudence on this score, at the very least,
trial judges should consider our evidentiary rules. See, e.g., Pa.R.E. 403 (providing that
(continued?)
[J-55-2013][M.O. – Baer, J.] - 2
In terms of my agreement with the majority opinion, from my perspective, the
majority does an admirable job working through what has become a highly complex
and, indeed, counter-intuitive area of federal constitutional jurisprudence. See, e.g.,
Peg Green, Pre-Arrest, Pre-Miranda Silence: Questions Left Unanswered by Salinas v.
Texas, 7 PHOENIX L. REV. 395, 409 (2013) (“The odd result of Salinas is that one must
speak in order to remain silent; and if a person remains silent instead of speaking up,
that silence can be used against him as evidence of guilt.”). To my mind, the result is
the delineation of a reasoned and just avenue of departure in our enforcement of a core
right guaranteed by the Pennsylvania Constitution.
Madame Justice Todd joins this concurring opinion.
(?continued)
a court may exclude evidence if its probative value is outweighed by the danger of
unfair prejudice).
[J-55-2013][M.O. – Baer, J.] - 3