Commonwealth v. Rivera, J., Aplt.

[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 OPINION
JUSTICE WECHT DECIDED: June 21, 2023
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 1 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. 2 The decision that he makes will play a major role in both the course
of investigation and the subsequent prosecution of the criminal case.
1 See Miranda v. Arizona, 384 U.S. 436 (1966).
2 The Fifth Amendment to the United States Constitution provides:
(continued…)
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 3 (if given to him) or the voluntariness of his decision
to waive his right to remain silent. 4 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.
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.
3 See, e.g., Commonwealth v. Johnson, 399 A.2d 111, 112-13 (Pa. 1979) (outlining
the appellant’s contention that the Miranda warnings administered to him by police
officers constitutionally were inadequate).
4 See, e.g., Commonwealth v. Barry, 454 A.2d 985, 987 (Pa. 1982) (summarizing a
juvenile appellant’s argument that the waiver of his Miranda rights was not voluntary).
[J-78-2022] [MO: Brobson, J.] - 2
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.” 5 The “right of the accused to resist any effort to
force him to assist in his own prosecution”6 is an “‘essential mainstay’ of our constitutional
system of criminal justice.” 7 “The privilege constitutes an essential restraint upon the
5 Commonwealth v. Cosby, 252 A.3d 1092, 1139 (Pa. 2021) (citing Commonwealth
v. Taylor, 230 A.3d 1050 (Pa. 2020)).
6 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).
7 Cosby, 252 A.3d at 1138 (quoting Malloy v. Hogan, 378 U.S. 1, 7 (1964)).
[J-78-2022] [MO: Brobson, J.] - 3
power of the government, and stands as an indispensable rampart between that
government and the governed.” 8 As the Supreme Court of the United States explained
in Murphy v. Waterfront Commission of New York Harbor: 9
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 (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
(Frank J., dissenting), rev'd 353 U.S. 391 (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 (1955). 10
“Most, if not all, of these policies and purposes are defeated when a witness ‘can
be whipsawed into incriminating himself[.]’” 11 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.
8 Id. at 1138-39.
9 378 U.S. 52, 55 (1964).
10 Id. (quotation marks, punctuation, and citations modified; footnote omitted).
11 Id. (quoting Knapp v. Schweitzer, 357 U.S. 371, 385 (Black, J., dissenting)).
[J-78-2022] [MO: Brobson, J.] - 4
Griffin v. California is illustrative. 12 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. 13 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. 14
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. 15
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. 16 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.”17 In both federal and state trial, the Court held, the Fifth Amendment
12 380 U.S. 609, 610 (1965).
13 Id. at 610-11.
14 Id. at 610.
15 Id. at 611.
16 Id. at 614 (citing Murphy, 378 U.S. at 55).
17 Id. at 614.
[J-78-2022] [MO: Brobson, J.] - 5
“forbids either comment by the prosecution on the accused’s silence or instructions by
the court that such silence is [substantive] evidence of guilt.”18
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.” 19 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.” 20 Silence in the wake of these
warnings is “insolubly ambiguous.” 21 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.” 22
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.” 23 Nonetheless, “such assurance is implicit to any person who receives the
18 Id. at 615.
19 Michigan v. Tucker, 417 U.S. 433, 439 (1974).
20 Doyle v. Ohio, 426 U.S. 610, 617 (1976).
21 Id.22 Id.23 Id. at 618 (emphasis added).
[J-78-2022] [MO: Brobson, J.] - 6
warnings,” and it would be “fundamentally unfair” 24 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. 25
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. 26 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. 27 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. 28
24 Id.25 Id. at 619.
26 Jenkins v. Anderson, 447 U.S. 231, 240 (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”).
27 Id. at 238, 240. 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. The reasons that these two types of evidence
are treated differently in this area of law are self-evident.
28 455 U.S. 603, 605-07 (1982) (per curiam).
[J-78-2022] [MO: Brobson, J.] - 7
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.” 29 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[.]” 30 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. 31 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:
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. 32
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
29 485 U.S. 25, 26 (1988).
30 Id. (citation to the record omitted).
31 Id. at 32.
32 Id. at 33-34.
[J-78-2022] [MO: Brobson, J.] - 8
back on an area of legitimate inquiry and comment by the prosecutor on the relevant
aspects of the defense case.”33
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. 34 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. 35
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. 36 The problem, we explained, is that there is a “strong disposition” 37 for jurors to
interpret invocations of silence as implicit admissions of guilt:
“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
33 Commonwealth v. Copenhafer, 719 A.2d 242, 251 (Pa. 1998) (citations omitted).
34 454 A.2d 537, 538 (Pa. 1982).
35 Id.36 Id. at 539.
37 Id. (citing Commonwealth v. Singletary, 387 A.2d 656, 657 (Pa. 1978);
Commonwealth v. Greco, 350 A.2d 826, 828 (Pa. 1976); Commonwealth v. Haideman,
296 A.2d 765, 767 (Pa. 1972)).
[J-78-2022] [MO: Brobson, J.] - 9
conclusive presumption of perjury.” Slochower v. Board of Higher Ed. of
N.Y. [350 U.S. 551 (1956)]. 38
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.” 39 This Court instead approved a much
more limited use:
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. 40
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
38 Id.39 Id.40 Id. at 539-40 (citation omitted).
[J-78-2022] [MO: Brobson, J.] - 10
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,” 41 our Court refused to limit that protection
only to circumstances where there is governmental inducement of the exercise of the
right.” 42 Miranda warnings (or their absence) do not affect “a person’s legitimate
expectation not to be penalized for exercising the right to remain silent.” 43
To summarize, whether in federal court or state court, a prosecutor can never
introduce a defendant’s invocation of silence as substantive evidence. 44 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.
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
41 PA. CONST. art. I, § 9.
42 Turner, 454 A.2d at 540.
43 Id.
44 See Griffin, 378 U.S. at 615; Commonwealth v. Molina, 104 A.3d 430, 451 (Pa.
2014) (plurality) (holding that admission of a defendant’s pre-arrest silence as substantive
evidence violates the constitutional privilege against self-incrimination).
[J-78-2022] [MO: Brobson, J.] - 11
a tacit admission of guilt. 45 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. 46
References to this “highly prejudicial evidence”47 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, 48 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.” 49 Similarly, in Commonwealth v. DiNicola, we cautioned that “the
45 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”).
46 See Haideman, 296 A.2d at 767-78.
47 Greco, 350 A.2d at 828.
48 Turner, 454 A.2d at 539 (citations omitted).
49 708 A.2d 471, 478 (Pa. 1998) (citation omitted).
[J-78-2022] [MO: Brobson, J.] - 12
mere revelation of silence does not establish innate prejudice.” 50 But, as the Majority
correctly highlights, these cases involve pre-arrest silence, not post-arrest silence. 51
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.”52
Importantly, the Majority reminds that references to post-arrest silence engender
much more than de minimis prejudice. 53 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.”54 I agree that,
while such errors do not amount to structural error, it is hard to fathom how an error of
50 866 A.2d 329, 336-37 (Pa. 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.
51 Maj. Op. at 31; see also Commonwealth v. Adams, 104 A.3d 511 (Pa. 2014)
(plurality), another pre-arrest silence case relied upon by the Commonwealth in this
appeal and by the Superior Court below.
52 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, 217 A.3d 833, 850 (Pa. 2019) (Wecht, J.,
dissenting). Today is not the day to re-examine this standard. But the day should come
sooner rather than later.
53 Maj. Op. at 31.
54 Id. (citations omitted).
[J-78-2022] [MO: Brobson, J.] - 13
such magnitude—one that all but guarantees substantial prejudice—can at the same time
be characterized as causing “insignificant” prejudice for harmless error purposes. 55 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.” 56 For all the reasons outlined by
today’s Majority, the error in this case was not harmless, and a new trial is warranted.
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,” 57 defense counsel objected. The basis
for the objection was the fact that the question would violate the privilege against self-
incrimination. 58 In a confounding ruling, the trial court stated that, while defense counsel
was “correct,” the Commonwealth was “just asking if he did.” 59 The trial court appeared
55 See id. at 34 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).
56 Molina, 104 A.3d at 455 (quoting Commonwealth v. Davis, 305 A.2d 715, 719 (Pa.
1973).
57 Notes of Testimony (“N.T.”), 8/7/2019, at 101-02.
58 Id. (defense counsel asserting that “[a] person doesn’t have to deny.”)
59 Id.[J-78-2022] [MO: Brobson, J.] - 14
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.” 60 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. 61 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.”62 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.
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, 63
that justification fails. Questions about a defendant’s pre-arrest silence “do not open the
door” 64 to questions about that defendant’s post-arrest behavior.
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
60 Id.61 Id.62 Turner, 454 A.2d at 539.
63 See Maj. Op. at 28.
64 Id.
[J-78-2022] [MO: Brobson, J.] - 15
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,” 65 and “risks reducing to rubble an entire
prosecution.”66
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 un-
ring. The risk is not worth the reward. The all-but-certain reversal, and a subsequent re-
trial, 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
65 Id. at 22.
66 Id. at 28.
[J-78-2022] [MO: Brobson, J.] - 16
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.
[J-78-2022] [MO: Brobson, J.] - 17