Com. v. Brown, K. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KARL BROWN,
Appellant No. 1364 EDA 2013
Appeal from the Judgment of Sentence December 19, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013707-2010
BEFORE: BOWES, DONOHUE, and MUNDY, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 28, 2014
Karl Brown appeals from the judgment of sentence of seven to
fourteen years imprisonment imposed by the trial court after a jury found
him guilty of aggravated assault and possession of an instrument of crime.
After careful review, we affirm.
The victim, David Montgomery, arrived at Melrose Bar in Philadelphia
at approximately 8:00 p.m. on September 22, 2010. Montgomery saw a
he two sat at
a booth. Montgomery ordered a beer for Linda and the two remained at the
bar without incident until 10:30 p.m. At that time, Appellant entered the
establishment, approached Linda, and began to quarrel with her. Appellant
and Montgomery then exchanged words. Another patron, Raymond Brown,
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who is not related to Appellant, indicated that Montgomery appeared to
brandish a knife during the argument. Raymond Brown then left the bar.
Due to the argument, the bar owner asked Montgomery and Appellant
to leave. Appellant exited and utilized a payphone outside the bar. While
Appellant was on the phone, Montgomery approached and indicated to a
friend traversing down the street that he had a problem with Appellant.
Appellant and Montgomery continued their previous argument, resulting in
Appellant stabbing Montgomery. Montgomery left the area and walked
approximately one and one-half blocks to a Chinese restaurant before asking
lacerated
and he was transported to the hospital where he underwent emergency
surgery. Police arrived and detained Appellant as he exited another bar in
the area. At the time, Appellant had a bloody knife on his person. Testing
on the knife confirmed that the blood matched the DNA of Montgomery.
Appellant proceeded to a jury trial. At trial, Appellant argued that he
acted in self-defense and contended that the police investigation was less
d weapon.
Appellant did not testify. During closing arguments, the prosecutor set
Montgomery, not even the defendant when the police were just having a
casual conversation with him, no
9/25/12, at 239. Appellant objected, and was overruled. After the
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In doing so, Appellant averred that the prosecutor improperly commented on
his silence in violation of his right against self-incrimination. The court
denied the motion, and the jury returned the aforementioned guilty
verdicts.1 Prior to sentencing, Appellant again moved for a new trial based
ppellant not telling police that the victim
had a knife. The court denied that motion and sentenced Appellant to seven
to fourteen years incarceration on the aggravated assault charge.
Appellant filed a timely post-sentence motion, which the court denied
by operation of law. This timely appeal ensued. The court directed
Appellant to file and serve a concise statement of errors complained of on
appeal. Appellant complied, and the trial court authored its opinion. The
matter is now ready for this Cour
decision to remain silent during and immediately afte
We evaluate the denial of a mistrial based on an abuse of discretion
standard. Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008). A
mistrial is only mandated where the objected-to action is of such a nature
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1
The jury also acquitted Appellant of attempted murder.
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that its unavoidable effect is to deprive the defendant of a fair and impartial
trial. Id.
because, after all, a person who actually defended himself surely would have
Quoting Commonwealth v. Greco, 350 A.2d 826, 828 (Pa. 1976),
nce of a
12. In Greco, the Commonwealth questioned a police officer about
whether the defendant had ever said anything to police. The officer related
that he had several conversations with the defendant, had advised him of his
right to remain silent, and that the defendant did not make any statements
aside from general conversation. The Greco Court ruled admission of this
evidence to be error.
Appellant also highlights that he did not testify at trial. Accordingly,
he maintains that this case does present the situation where his silence at
reference by the prosecutor to previous silence is impermissible and
Id. (quoting Commonwealth v. Turner, 454 A.2d 537,
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539-540 (Pa. 1982)). Appellant continues that a prosecutor cannot
custody. See Commonwealth v. Easley, 396 A.2d 1198, 1201 (Pa. 1979).
comment referred to pre-arrest silence. He asserts that at the time of his
silence he was in custody because police approached him, removed the knife
from his possession, and placed him under arrest. In this respect, he
highlights that the arresting officer did not testify to a conversation with
him, only that the officer approached and detained him. Thus, Appellant
unsupported by the evidence.
en banc decision in
Commonwealth v. Molina, 33 A.3d 51 (Pa.Super. 2011) allowance of
appeal granted 51 A.3d 181 (Pa. 2011). In Molina, an en banc Court ruled
-arrest silence, in not speaking to a missing persons
investigator, should be used as a tacit admission of guilt in a homicide case.
After collecting cases from various jurisdictions and discussing a split in
authority on pre-arrest silence, the Molina
no moment whether the silence occurred before or after the arrest or before
or after Miranda warnings were administered. The Fifth Amendment was
enacted to protect against self-incrimination, whether they are in custody or
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not, charged with a crime, or merely being questioned during the
Id. at 63.
handcuffs or advised of his rights pursuant to Miranda, supra, prior to his
2
In this
regard, Appellant quotes from Easley, supra at 1201, wherein the Court set
forth,
We do not believe any reason exists to differentiate between
situations where the right to remain silent is exercised following
warnings and where it is exercised without warnings being given.
Whether or not the exercise of the right to remain silent is
induced by being advised of it at the time of arrest or is self-
motivated by prior knowledge of it by the accused should not
limit or extend the effect of exercising the right.
Appellant adds that the
his defense. In leveling this aspect of his argument, Appellant posits that,
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2
A panel of this Court recently noted that Pennsylvania case have
established and analyzed four distinct time periods during which a defendant
before arrest; (2) after arrest but before the warnings required by Miranda
have been given; (3) after Miranda warnings have been given; and (4) at
Commonwealth v. Kuder, 62 A.3d 1038, 1049 (Pa.Super. 2013)
(footnote omitted). In addition,
Circuits have held that pre-arrest, pre-Miranda silence is not admissible as
substantive evidence of guilt.... The Fifth, Ninth, and Eleventh Circuits, on
the other hand, have held that pre-arrest, pre-Miranda silence is admissible
Commonwealth v. Molina, 33 A.3d 51,
61 (Pa.Super. 2011) allowance of appeal granted 51 A.3d 181 (Pa. 2011).
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completeness of an investigation or otherwise comments on the presence or
lack of evidence, the prosecutor is automatically entitled to argue to the jury
that the defendant, while being arrested or immediately thereafter, could
brief at 15. Appellant distinguishes the Pennsylvania Supreme Court
decision in Commonwealth v. Copenhefer, 719 A.2d 242 (Pa. 1998), and
the United States Supreme Court decision in United States v. Robinson,
485 U.S. 25 (1988), and avers that this case is more analogous to
Commonwealth v. Dulaney, 295 A.2d 328 (Pa. 1972), and
Commonwealth v. DiPietro, 648 A.2d 777 (Pa. 1994).
In Copenhefer, the defendant testified in his own defense.
Copenhefer was charged with, among other crimes, kidnapping and killing
the victim therein. During questioning by his own attorney, he related that
he spoke with police and did not have anything to hide and told them
everything. The prosecutor during cross-examination pointed out that
Copenhefer had actually refused on two occasions during the pertinent police
interview to tell police what he did on the afternoon of the date of the
kidnapping of the murder victim. The Pennsylvania Supreme Court ruled
Robinson, supra.
In Robinson, defense counsel during his closing argument maintained
that the defendant was not afforded an opportunity to tell his side of the
story. The prosecutor responded that the defendant could have taken the
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stand. The United States Supreme Court ruled th
compulsory self-
argument.
The Pennsylvania Supreme Court in Dulaney awarded a new trial
based on a prosec Dulaney are
remarkably similar to this case. Therein, the defendant had a verbal
argument in a Philadelphia bar. The men then encountered each other
outside the bar several blocks away where the argument continued.
Dulaney fatally stabbed the victim in the chest. Police later arrested
Dulaney, supra at 330. Dulaney testified at trial
and maintained that he stabbed the victim after the victim threatened him
and reached for a gun.
In his closing, the prosecutor argued:
if you had killed a man in self-defense and an officer, a detective
in Homicide Division, and you knew you had been apprehended
and this was it, asked you explain the murder of [the victim],
did it. I did it, but listen, I did it because I was afraid of him. He
had a gun . . .. Honest, Detective, I didn't mean to kill him. I
wouldn
stabbed him, you'd want the detective to know from the very,
very beginning . . .. But the first thing you do once the police
finally apprehended you and asked you explain the murder, boy
they couldn't get me to stop talking if they said explain the
murder and I had murdered somebody in self-defense, they
couldn't shut me up until I told them every ramification of why I
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was afraid of him, what a bad guy he was, how he was an
enforcer for a dope ring. They couldn't shut me up until I told all
hear the story of self-defense until five months later. You think
about that.
Id.
The Dulaney
police was not only a constitutional right of the accused, but indeed probably
Id
Commonwealth to use this fair assertion of a constitutional right as an
admission of guilt was to fly in the face of the Fifth Amendment and the
Id.
DiPietro also involved an altercation after a verbal argument inside a
bar. The defendant therein, after the argument, drove his car over a curb
and struck the victim. Police arrested the defendant and he agreed to
discuss certain aspects of the incident after completing a Miranda waiver
form. During the course of the interview, DiPietro related some facts but
then ceased talking. DiPietro did not inform police that he struck the victim
by accident.
The prosecution questioned the police officer who conducted the
interview, and asked whether DiPietro had said the incident was an accident.
The trial court overruled an objection. Subsequently, the prosecutor stated
in closing argument:
[W]hy doesn't he tell that man, Trooper Harriman, My golly,
good grief, what did I do? It was a terrible, terrible accident. I've
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been having this car problem. The brakes are bad. It kept
stalling.
When do we hear that? We hear that today from the witness
stand. We didn't hear that from any of the police officers.
Doesn't common sense simply tell you that if you're in that kind
of situation, that would be the first thing out of your mouth?
[Objection]
I would suggest that that would be the first thing out of a man's
mouth when he's talking to this officer about this specific
incident.
DiPietro, supra at 778 (brackets in original). The DiPietro Court ruled
Dulaney and DiPietro
when a criminal defendant asserts a particular defense, the prosecution may
Finally, Appellant argues that the alleged error in this matter is not
Id. at 18 (quoting Commonwealth v.
Clark, 626 A.2d 154, 158 (Pa. 1993), and citing Turner, supra at 539,
the defendant resulting from reference to his
argument was not cumulative nor was the evidence overwhelming.
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The Commonwealth begins by arguing that Appellant has waived his
claim base
9. We summarily dispose of this frivolous waiver argument and note that
Commonwealth continues, nevertheless, that th
extensive search of the two areas where Mr. Montgomery was first stabbed
The Commonwealth, as did Appellant, quotes the entirety of the
they find a knife? There was [sic] no allegations of another
knife. The other Brown, the Brown that he called, could have
went to the police and said he had a knife on him that night. He
nobody said that Mr. Montgomery, not even the defendant when
the police were just having a casual conversation with him,
nobody said that he had a knife. Nobody said it. So there was
no knife to look for.
Defense Counsel: Objection, Your Honor.
Court: You may continue but just note.
Prosecutor: Nobody said that he had a knife. Nobody said it.
So there was no knife to look for.
N.T., 9/25/12, 239.
According to the Commonwealth, the reference to Appellant not
informing police of the victim allegedly having a knife was not argument that
ubstantive evidence of guilt.
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investigation was poor. The Commonwealth also argues that the
-arrest conduct and, discounting this
Molina
-arrest
3
In support of its contention that the
prosecutor referenced pre-arrest silence, the Commonwealth acknowledges
that Officer Joseph Goodwin patted down Appellant, recovered the bloodied
knife, and detained Appellant to be transported to the hospital for potential
identification by the victim. After the victim identified Appellant, the
Commonwealth formally arrested Appellant. Accordingly, the
Commonwealth contends that since Appellant was not formally arrested until
-arrest silence.
The Fifth Amendment provides in
Const. amend. V. Similarly, but not identically, Article I, § 9 of the
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3
The Commonwealth argues that there is no federal or state constitutional
right against self-accusation in the pre-arrest setting and ignores that this
Court is bound by the en banc decision in Molina until the Pennsylvania
Supreme Court or the United States Supreme Court overrules the decision.
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4
c At the time of ratification, to
be a witness and to give evidence were considered synonymous and, both
terms, under a plain meaning interpretation, applied to more than trial
testimony. See United States v. Hubbell, 530 U.S. 27, 51 (2000)
(Thomas, J., concurring). In fact, the right prohibited compelling a person
to produce incriminating physical evidence. Id.; Boyle v. Smithman, 23 A.
397, 398 (Pa. 1892); but see Fisher v. United States, 425 U.S. 391
(1976) (incriminating physical evidence may be compelled).
Neither the text of the federal or Pennsylvania Constitution
differentiate between usage of pre-arrest or post-arrest silence as
substantive evidence against the accused, but subsequent decisions have
made it clear that post-arrest silence may not be used against a defendant.
Griffin v. California, 380 U.S. 609 (1965); Turner, supra;
Commonwealth v. Kuder, 62 A.3d 1038, 1049 n.6 (Pa.Super. 2013).
Importantly, the Miranda5 decision and the requirement that defendants be
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4
This provision was contained in Article IX of the Declaration of Rights of the
1776 Pennsylvania Constitution, well before the ratification of the federal Bill
of Rights. Seven other states included a prohibition against compelling a
defendant from giving evidence against himself before the adoption of the
Bill of Rights. See United States v. Hubbell, 530 U.S. 27, 51 (2000)
(Thomas, J., concurring) (collecting constitutional provisions). The
Pennsylvania Supreme Court has not held that for all purposes the Fifth
Amendment and Article I, § 9 are co-extensive. D'Elia v. Pennsylvania
Crime Com'n, 555 A.2d 864, 870 (Pa. 1989).
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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given Miranda warnings after an arrest occurred well after the founding era.
Accordingly, at the time of ratification of the Fifth Amendment, Miranda
warnings had no impact on interpreting the prohibition against compelling
evidence against oneself.
ra, peace officers had no authority
at all to interrogate even arrestees, let alone suspects. Indeed, there were
no police officers or departments in the modern sense during the framing
Farther and Farther from the Original Fifth
Amendment: The Recharacterization of the Right Against Self-
, 70 Tenn. L. Rev. 987,
1003 (2003); Dickerson v. United States, 530 U.S. 428, 435 n.1
(2000)).6 Further, while the Fifth Amendment and its state counterpart are
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6
Professor Davies has also opined,
Framing-era common law did not permit officers to interrogate
or take statements or confessions from suspects. See, for
example, Chief Justice Pratt's (Lord Camden's) remark in the
press accounts of Leach to the effect that officers could not be
permitted to arrest or search at their discretion any more than
supra
note 22. In fact, although English statutory law created authority
under oath) and record their answers for evidence in a
subsequent trial, there is evidence that at least some American
jurisdictions viewed that practice as violative of the common-law
right against compelled self-accusation. Hening's 1794 Virginia
justice of the peace manual had this to say:
(Footnote Continued Next Page)
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most frequently thought of as precluding the requiring of a defendant to
testify at his own trial, this was not a critical issue during the founding era as
defendants were not permitted to testify at their own trial; indeed, they
were considered incompetent to testify. Ferguson v. State of Ga., 365
U.S. 570, 574-
deemed incompetent as witnesses. In Rex v. Lukens, 1 Dall. 5, 6, 1 L. Ed.
13, decided in 1762, a Pennsylvania court refused to swear a defendant as a
7
The greater concern was governmental interrogation prior to the
bringing of criminal charges and an arrest, such as occurred in the infamous
_______________________
(Footnote Continued)
The justice, before whom the prisoner is brought, is bound
immediately to examine the circumstances of the crime alleged.
But the power of examining the prisoner himself and committing
his examination to writing seems not to be recognized by our
laws. This authority was granted by statute of England of
Ph[illip] & M[ary], which not having been adopted by our
legislature, is consequently not in force. And that these
proceedings are repugnant to the common law, will appear...
from judge Blackstone, who says, that at the common law, no
man was bound to betray himself: and his fault was not to be
wrung out of himself, but rather to be discovered by other
means and other men.
Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547, 750 n.574 (1999).
7
According to the Court in Ferguson v. State of Ga., 365 U.S. 570, 577
(1961), Pennsylvania first made defendants competent to testify in 1885.
Id. at 577 n.6.
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Star Chamber. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 595-596 (1990)
use of legal compulsion to extract from the accused a sworn communication
of facts which would incriminate him. Such was the process of the
ecclesiastical courts and the Star Chamber the inquisitorial method of
putting the accused upon his oath and compelling him to answer questions
designed to uncover uncharged offenses, without evidence from another
source. The major thrust of the policies undergirding the privilege is to
At the time of the ratification of the federal
constitution and the earlier state charters, governmental interrogation was
intended at common law to be limited to a judicial examination immediately
after an arrest, which was not intended to compel a confession. See Davies,
supra at 1002-1003 (citing 4 William Blackstone, Commentaries at 293 (1 st
ed. 1769)).
The eminent Chief Justice John Marshall in United States v. Burr, 25
F. Cas. 38 (C.C. Va. 1807), a case involving the treason trial of Aaron Burr,
while on circuit, opined:
Many links frequently compose that chain of testimony which is
necessary to convict any individual of a crime. It appears to the
court to be the true sense of the rule that no witness is
compellable to furnish any one of them against himself. It is
certainly not only a possible but a probable case that a witness,
by disclosing a single fact, may complete the testimony against
himself, and to every effectual purpose accuse himself as
entirely as he would by stating every circumstance which would
be required for his conviction. That fact of itself might be
unavailing, but all other facts without it would be insufficient.
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While that remains concealed within his own bosom he is safe;
but draw it from thence, and he is exposed to a prosecution. The
rule which declares that no man is compellable to accuse himself
would most obviously be infringed by compelling a witness to
disclose a fact of this description.
Id. at 40. The witness in Burr,
Hence, the
original meaning of the Fifth Amendment and its Pennsylvania predecessor
strongly supports the notion that it applied to pre-arrest procedures
involving government actors.
Critically, if one could not be compelled to answer to governmental
interrogation pre-arrest, it would make little logical sense if the failure to
answer could be used as substantive evidence to bring forth charges or
prove guilt. To hold otherwise would be to eviscerate the right against self-
accusation as any time a person remained silent, such evidence would be
used against the person. Thus,
of speaking to police and potentially incriminating themselves or having their
silence used as substantive evidence of wrongdoing. See Commonwealth
v. Reed, 42 A.3d 314, 322 n.4 (Pa.Super. 2012); see also Jenkins v.
Anderson
impose a duty to report one's own crime before an official accusation has
been made would itself be to compel self-incrimination, thus bringing the
In this respect, Pennsylvania courts have long
prohibited silence as evidence of guilt where a defendant is in the presence
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of police. Commonwealth v. Dravecz, 227 A.2d 904 (Pa. 1967);
Commonwealth v. Schmidt, 299 A.2d 254 (Pa. 1973) (plurality);
Commonwealth v. Coccioletti, 425 A.2d 387 (Pa. 1981);
Commonwealth v. Cull, 656 A.2d 476, 481 n.5 (Pa. 1995) (OAJC).
[of the right against self-accusation] was to insure that a person should not
be compelled, when acting as a witness in any investigation, to give
testimony which might tend to show that he himself had committed a
Counselman v. Hitchcock, 142 U.S. 547, 562 (1892) abrogated
on other ground by Kastigar v. United States, 406 U.S. 441 (1972). Our
Supreme Court has discussed the use of silence and the right against self-
incrimination in varying contexts. An examination of these cases is helpful.
In Commonwealth v. Vallone, 32 A.2d 889 (Pa. 1943) abrogated in part
by Dravecz, supra, our Supreme Court, stated,
The rule of evidence is well established that, when a statement
made in the presence and hearing of a person is incriminating in
character and naturally calls for a denial but is not challenged or
contradicted by the accused although he has opportunity and
liberty to speak, the statement and the fact of his failure to deny
it are admissible in evidence as an implied admission of the truth
of the charges thus made.
Vallone, supra at 890.
Vallone occurred before the Fifth Amendment was extended to the
states and, as noted, has subsequently been overturned. Chief Justice
Maxey authored a lengthy dissenting opinion therein addressing the inherent
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problems of tacit admissions. See also Commonwealth ex rel. Staino v.
Cavell, 217 A.2d 824 (Pa.Super. 1966) (Hoffman, J., dissenting) (discussing
The facts of Vallone involved a charge of transporting a female for the
purpose of prostitution. While the defendant was in the presence of a
transporting of her and her transferring money to him that she earned from
her acts of prostitution. The defendant did not respond. Besides noting that
the defendant
id
significance and is merely conjectural and yet possible harmful to a
defendant when considered by untrained minds, and therefore it should not
Id
substantially became the law of Pennsylvania in Dravecz, supra.
Dravecz involved
defendant that implicated the defendant in a burglary. The accused made
no comment once the officer was done reading the statement. The Supreme
Court issued four separate opinions. Justice Eagan filed a concurring opinion
joined by three other justices. Justice Roberts filed his own concurring
opinion and Justice Musmanno authored the lead opinion. Chief Justice Bell
penned a short dissent.
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Justice Musmanno, after recognizing that the Fourteenth Amendment
extended the right to remain silent to the states, opined:
The untenability of the tacit admission rule is illustrated in the
following startling proposition. A defendant is not required to
deny any accusation levelled at him in a trial no matter how
inculpatory. He may be charged with the most serious of
offenses, including murder and high treason. A cloud of
witnesses may testify to circumstances, events, episodes which
wrap him in a serpent's embrace of incrimination, but no
inference of guilt may be drawn from his failure to reply or to
take the witness stand. Indeed, and properly so, if the
prosecuting attorney or the judge makes the slightest reference
to the fact that the accused failed to reply to the accusations
ringing against him, and a verdict of guilt follows, a new trial is
imperative. And yet, under the Vallone holding, an accusatory
statement made in any place chosen by the accuser, whether on
the street, in the fields, in an alley or a dive, if unreplied to, may
be used as an engine in court to send the defendant to prison or
to the electric chair.
Dravecz, supra at 906.
-accusing witness
by coerced answers, he should not be made a witness against himself by
Id
tacit admission was
as insidious as monoxide gas which does not proclaim its
presence through sound or smell. A forced confession is a
steam-chugging locomotive moving down the track, blowing its
whistle and clanging its bell with the victim tied to the rails. A
tacit admission is a diesel locomotive silently but relentlessly
moving forward without audible signals and striking the victim
unawares. The approach is different, the effect is the same.
Id.
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The discussion in Dravecz was subsequently modified in Schmidt,
supra. In Schmidt, the defendant was found guilty of murder during a
burglary. During his trial, two witnesses testified that shortly after the
burglary they were with Schmidt and his co-defendant in a car when the co-
defendant said that he was going to burn his fingerprints. Schmidt made no
was not the subject of the remark, and thus there was no reason for him to
make any response. The evidence, therefore, lacked probative value in
establis Id. at 265.
However, the court held that the Schmidt was not entitled to post-
conviction relief because it did not violate his Fifth Amendment right against
self-incrimination. At that time, only constitutional mistakes afforded relief
under the Post Conviction Hearing Act. The Schmidt Court stated that tacit
admissions only violate the constitution in the face of police questioning.
Subsequently, in Coccioletti, supra, our Supreme Court provided that
Dravecz, supra
or Coccioletti, supra at 392 (emphasis
added).
In Easley, supra, the defendant testified at trial that he acted in self-
defense in shooting a woman in her home. According to the defendant, he
in attacking his mother. He testified that when he mentioned his mother
being beaten, the victim threw hot grease at him and removed a gun from
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between the stove and sink and pointed it at him. In his version of events,
as they fought over the gun it went off and wounded the victim. The
defendant then claimed he emptied the gun of its bullets, confiscated
additional ammunition and took the gun so that he could take it to police.
a box of ammunition, and a magazine for the weapon.
The prosecutor questioned Easley regarding whether he informed
police of these events when he was arrested. The defendant admitted that
he did not and stated that he had invoked his right to remain silent.
forth:
He said he was going to walk down over to Wolf Street, and
conveniently he was going to take the bullets, he was going to
take the clip, he was going to take the gun and he was going to
tell the police just what happened.
Unfortunately for him someone called the police in the meantime
and they catch him and his brother coming down the stairs.
Now, at that time does he tell the police? He has the right to
remain silent. You have heard that. You know that. But he told
us here he is going to tell the police the whole thing was an
accident. Does he ever tell anybody that?
Now today he does. After he has access to all these notes for
five or six months.
Easley, supra at 1201.
Easley Court
held the questioning and argument impermissibly violated th
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right to remain silent. In doing so, the Court rejected the position that the
that he intended to summon police.
In Turner, supra, the defendant also claimed self-defense in a
shooting. During cross-examination, the Commonwealth asked whether the
defendant had told police that someone had shot at him. The defendant had
not provided police with any statements before or after his arrest. The trial
court sustained an objection before the defendant could answer, declined to
declare a mistrial, and instructed the jury to disregard the question. The
Turner
the use of pre-Miranda silence is permissible to
Turner, supra at 582. Nonetheless,
Commonwealth, the cautionary instruction was insufficient, and the error
was not harmless.
The Supreme Court distinguished Turner in Commonwealth v.
Bolus, 680 A.2d 839 (Pa. 1996). In Bolus, the question was whether trial
-arrest silence. The Pennsylvania High Court
concluded that Turner
silence after the defendant was arrested but before he was provided his
Miranda warnings. It then analyzed the United States Supreme Court
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decision in Jenkins, supra, which held that pre-arrest silence may be
admissible as impeachment evidence. Central to Jenkins and Bolus, was
the fact that the defendant had elected to testify and cast aside his cloak of
Jenkins, supra at 238.
More recently, the Pennsylvania Supreme Court discussed silence as
an admission in Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005).
DiNicola was a Commonwealth appeal from a Superior Court en banc
decision that found counsel ineffective for failing to object to the
-arrest silence where the
defendant testified. Police charged DiNicola with aggravated indecent
assault and related charges. Prior to being charged, the investigating state
trooper contacted DiNicola and asked for an interview.
DiNicola indicated that he would need to contact an attorney.
Subsequently, his attorney informed police that the defendant denied the
allegations and, on the advice of counsel, would assert his right to remain
prosecution objected, arguing that it might lead the officer to mention
-arrest silence. During cross-examination, the prosecution
elicited that DiNicola declined to be interviewed by police. It also garnered
DiNicola denied the allegations and would invoke his right to remain silent
during a police interview.
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Our Supreme Court held that the Fifth Amendment does not preclude a
prosecutor from fairly responding to defense argument by referencing a
reference to silence and its Fifth Amendment source was circumspect; it was
Id. at
337.
re to affirmatively
inform police that the victim had a knife or offer information that he acted in
self-defense at the time the police came into contact with him for
investigatory purposes. Hence, even under the common law tacit admission
rule, evidence of silence would not be admissible as evidence of guilt. See
Vallone, supra; Jenkins, supra at 248-
common law silence is admissable [sic] to contradict subsequent statements
only if the circumstances would naturally have called for a response. For
example, silence was traditionally considered a tacit admission if a
statement made in the party's presence was heard and understood by the
party, who was at liberty to respond, in circumstances naturally calling for a
response
-arrest and
post-arrest silence is unavailing based on long-standing precedent where the
defendant is in the presence of police, even if not in official custody.
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Dravecz, supra; Schmidt, supra; Coccioletti, Cull, supra at 481 This
rule is not applicable in criminal cases where the defendant is in police
custody or in the presence of police officers because a contrary policy would
effectively vitiate a defendant's constitutionally-guaranteed right against
self- The question, however, remains whether the objected-
to reference was used as substantive evidence of guilt. As the DiNicola
the mere revelation of silence does not establish innate
DiNicola, supra at 336 (citing Commonwealth v. Whitney,
reversible error where it occurs in a context not likely to suggest to the jury
that silence is the Commonwealth
v. Nolan, 634 A.2d 192, 197-198 (Pa. 1993); Commonwealth v. Adams,
39 A.3d 310, 321-322 (Pa.Super. 2012); see also Robinson, supra at 42
(Marshall, J., dissenting); but see Turner, supra; Easley, supra.
silence was substantive evidence that he attacked the victim. Rather, the
Commonwealth was inartfully attempting to respond to why police did not
undertake a more thorough investigation for a second knife. The
tacit admission of his guilt. We, nonetheless, agree with Appellant that the
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police merely because a defendant questions a police investigation.
However, the prosecution did not urge the jury to find Appellant guilty
because he did not inform them of his self-defense theory, nor argue that
Appellant was required to tell police that he acted in self-defense when he
was first detained. Contra Dulaney, supra (reversing where prosecutor
argued that failure to inform police of self-defense was telling); DiPietro,
supra; Easley, supra. Accordingly, we find that Appellant is not entitled to
relief.
Judgment of sentence affirmed.
Judge Donohue files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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