Commonwealth v. Rivera, J., Aplt. ( 2023 )

[J-78-2022] [MO:Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 22 MAP 2022
:
Appellee : Appeal from the Order of the
: Superior Court entered May 24,
: 2021 at No. 1788 MDA 2019
v. : Affirming in Part and Vacating the
: Judgment of Sentence of the
: Bradford County Court of Common
JONATHAN RIVERA, : Pleas, Criminal Division, dated
: September 26, 2019, at No. CP-08-
Appellant : CR-0000606-2018 and Remanding
: for Resentencing.
:
: ARGUED: November 29, 2022
CONCURRING AND DISSENTING OPINION
JUSTICE MUNDY DECIDED: June 21, 2023
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. 1 Unlike the majority, I am not convinced Appellant preserved his
constitutional claim in the present case. See Majority Op. at 30 n.18.
As recited by the majority, after the prosecutor asked the trooper on re-direct
whether Appellant denied committing the underlying conduct, defense counsel objected,
1 See Interest of T.W., 261 A.3d 409, 424 n.9 (Pa. 2021) (quoting Commonwealth v.
Romberger, 378 A.2d 283, 286 (Pa. 1977)); Commonwealth v. Williams, 660 A.2d 1316,
1320 (Pa. 1995); accord Commonwealth v. Veon, 150 A.3d 435, 456 n.33 (Pa. 2016)
(plurality) (citing cases).
noting: “A person doesn’t have to deny.” N.T., 8/7/19, at 101; see Majority Op. at 6. 2
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 30 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., 256 A.3d 1108, 1124 (Pa. 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”).
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. 3
2 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 5. 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 28. 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 5. 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.
3The Commonwealth renews the claim in its brief to this Court. See Brief for Appellee at
12-14.
[J-78-2022] [MO: Brobson, J.] - 2
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, 454 A.2d 537, 538-40
(Pa. 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)
[J-78-2022] [MO: Brobson, J.] - 3
(per curiam), quoted in Majority Op. at 11, and as such it is not before this Court. 4
Accordingly, rather than render a conclusory finding that the Commonwealth’s claim lacks
merit, see Majority Op. at 30 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.
4See Briggs v. Sw. Energy Prod. Co., 224 A.3d 334, 350 (Pa. 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)).
[J-78-2022] [MO: Brobson, J.] - 4