Commonwealth v. Robinson

CIRILLO, President Judge,

dissenting:

Because I believe that the reference to the appellant’s post-arrest silence elicited by the prosecutor impermissibly prejudiced him in the eyes of the jury, I respectfully dissent from the majority’s opinion.

In the early morning of January 12, 1987, police were summoned by an alarm from a Gulf service station on the North Side of Pittsburgh. Two police cars approached the station: one went to the front, and another to the back. Officer Frank Vetere, approaching the front of the station in his patrol car, testified that he saw a man inside the dimly lit sales office. The office was lit only by a small light, not an overhead light. Officer Vetere testified that his attention was drawn by a swinging door. He turned his spotlight on the station, then he saw a man come out the door of a back room, run across the front of the station, out a broken window, and down the side of the station. He testified that he observed the man for some thirty seconds as he ran, but on cross-examination admitted that he only saw.his face for some three seconds. The remainder of the time he saw his back and profile as he ran.

The officer then followed him with his car, and lost sight of him. Other patrol cars had responded to the alarm, and the search was taken up on foot. Robinson was found flat on the ground under a telegraph pole by another officer. He was then searched, and several rolls of change were found on him, along with two screwdrivers. The rolls were marked with the name of the service station. Robinson was handcuffed, and placed under arrest. He was later identified by Officer Vetere before the City Court Magistrate. No line-up or photo array was held.

While it is settled law in this Commonwealth that references by a prosecutor to post-arrest silence are violations of an accused’s fifth amendment right against self-incrimination, Commonwealth v. Singletary, 478 Pa. 610, 611, 387 A.2d 656 (1978), it is equally well settled that not every reference requires a new trial. Commonwealth v. Maloney, 469 Pa. 342, 349, 365 A.2d 1237, 1241 (1976). Prompt and adequate instructions may cure what could otherwise be reversible error. Commonwealth v. Gbur, 327 Pa.Super. 18, 24, 474 A.2d 1151, 1154 (1984). In order to determine whether the reference to the accused’s silence may be cured by an instruction, we consider four factors: (1) the nature of the reference to the accused’s silence; (2) how it was elicited; (3) whether the district attorney exploited it; and (4) the promptness and adequacy of the cautionary instruction. Commonwealth v. Mays, 361 Pa.Super. 554, 558-59, 523 A.2d 357, 359 (1987), allocatur denied, 516 Pa. 613, 531 A.2d 780 (1987); Commonwealth v. Anderjack, 271 Pa.Super. 334, 342, 413 A.2d 693, 698 (1979). If the reference to the accused’s silence is of a nature that would seriously compromise the jury’s objectivity, and is likely to deprive the accused of a fair trial, curative instructions are inadequate and a new trial is required. Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70, 76 (1980); Gbur, 327 Pa.Super. at 24, 474 A.2d at 1154.

In the instant case, before determining whether curative instructions were necessary, we must first determine the nature of the silence upon which the accused was questioned. It is clear that pre-arrest silence is admissible in this Commonwealth for impeachment purposes. Commonwealth v. Turner, 499 Pa. 579, 582, 454 A.2d 537, 539-40 (1982); Commonwealth v. Hassine, 340 Pa.Super. 318, 341, 490 A.2d 438, 450 (1986). We must determine whether the reference to which defense counsel took exception dealt with pre-arrest silence, or silence at the time of arrest. The majority determines that the reference in this case was a reference to pre-arrest silence. It reaches this conclusion by considering all the evidence and inferences in the light most favorable to the verdict winner. While this is the proper standard of review in a case involving a sufficiency of the evidence question, we are here faced with a constitutional question, and that standard does not apply. Granted, appellant has also raised a sufficiency of the evidence argument, but that does not cause that standard to diffuse to all arguments raised by Robinson on appeal. To allow such an interpretation of the evidence would lead to differing results in cases in which questions of sufficiency were raised in conjunction with other arguments, and in cases in which those other arguments were raised separate from a sufficiency claim. This is, at best, illogical.

In any case, I would find the instant case to be similar to the seminal case of Commonwealth v. Turner, supra. In Turner, the appellant was charged with the shooting death of Robert Hilton. There was conflicting testimony as to whether the appellant shot him after having overpowered him, or whether the gun went off in the course of a struggle. He testified in his own behalf that he noticed a drug dealer behind Hilton after he took the gun from him, and, thinking that the man had fired a shot at him, shot back, striking Hilton. On cross-examination, the prosecutor asked whether he had ever told the police someone was shooting at him. He had not given a statement to the police; his testimony in court was the first time he had offered an exculpatory version of the events. An objection to the question was made, the trial judge sustained the objection, but denied the motion for mistrial and gave cautionary instructions to the jury sua sponte. The prosecutor did not mention the appellant’s silence again.

According to this court in Commonwealth v. Hassine, supra, the appellant’s silence in Turner was silence at or after the time of arrest. Hassine, 340 Pa.Super. at 342, 490 A.2d at 450. Further, in Commonwealth v. Sanders, 324 Pa.Super. 372, 471 A.2d 885 (1984), the trial court questioned the appellant as to why he had not asked the doctor whose prescriptions he had allegedly stolen why the prescriptions were suspicious. Sanders had testified that he had received the prescriptions from the doctor a day or two before the incident. Id., 324 Pa.Superior Ct. at 375-76, 471 A.2d at 887. The appellant replied that he had not had time, as he had been handcuffed and thrown into the police car. Id. This court, relying on Turner, held that the error was reversible since it impermissibly questioned the appellant about his silence at the time of his arrest. Id., 324 Pa.Superior Ct. at 378, 471 A.2d at 888.

In this case, the prosecutor similarly attempted to question Robinson about his silence at the time of arrest:

Q: Why did the police find you hiding?

A: I was scared that I would get the blame.

Q: Do you know Officer Terry who testified today? Did you see him?

A: Yes.

Q: Was he there when you were searched and the quarters were found?

A: Yes.

Q: Did you tell the police officers anything when they found you?

A: No.

Ms. Kriesman: Objection, Your Honor. Improper question.

(emphasis added). The question, “Why did the police find you hiding?” goes to pre-arrest silence, and was not objected vto by counsel. The question to which counsel took exception did not deal with Robinson’s failure to relate his story to the police before his arrest. It concerned his silence when he was found, and as the record shows, he was taken into custody by police as soon as they discovered him.

Having determined that the prosecutor’s question was improper and violative of Robinson’s fifth amendment right not to incriminate himself, I would then determine whether the instructions given by the trial judge sufficiently eliminated any prejudice accruing to him from that question. Again, turning to Turner, we note that despite the trial court’s cautionary instructions, the supreme court of this Commonwealth held on appeal that substantial prejudice to the appellant had resulted. “[Tjhere exists a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt____” Turner, 499 Pa. at 582, 454 A.2d at 539. According to the supreme court:

While it is efficacious for the Commonwealth to attempt to uncover a fabricated version of events, in light of the “insolubly ambiguous” nature of silence on the part of the accused ..., we do not think it sufficiently probative of an inconsistency with his in court testimony to warrant allowance of any reference at trial to the silence. Accordingly, 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 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.

Id., 499 Pa. at 583, 454 A.2d at 539-40.

In Gbur, however, this court stated that the Turner court said nothing to indicate that an improper pve-Miranda reference could not be cured by adequate cautionary instructions. Gbur, 327 Pa.Super. at 26, 474 A.2d at 1155. We note that the instructions given by the trial court in Turner were so vague as to be useless. Turner, 499 Pa. at 581 n. 2, 454 A.2d at 538 n. 2. The Gbur court noted that the facts before it differed significantly from those that had confronted the Turner court. In Turner, the Gbur court pointed out, the improper reference had come from the prosecutor during cross-examination of the appellant, and was an attempt to emphasize the silence of the appellant at the time of arrest in contrast to his testimony at the time of trial. Gbur, 327 Pa.Super. at 26, 474 A.2d at 1155. In Gbur, the testimony was inadvertently obtained from another witness, and in contradiction to other testimony that the appellant had not remained silent at arrest. Id., 327 Pa. Superior Ct. at 26-27, 474 A.2d at 1156. In this situation, the court held, adequate cautionary instructions could, and did, minimize the prejudice accruing to appellant. Id.

Applying the four-pronged test of Mays and Anderjack, I would hold that the nature of the reference to Robinson’s silence was such that no cautionary instruction could adequately assuage the prejudice created in the minds of the jury. The reference was made by the defendant himself, and was an explicit reference to the fact that he had not attempted to exculpate himself at the time of his arrest. Such an admission is strongly suggestive of guilt to a jury. See Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 85, 223 A.2d 296, 298 (1966). The present situation concerns just the type of questioning that the supreme court decried in Turner. In that case, although the supreme court did not explicitly consider the trial court’s instructions and declare them to be inadequate, it seems clear that the court found that the prejudice created by the remarks could not be cured by the trial court’s instructions.

The majority states that the reference to Robinson’s silence was not exploited by the Commonwealth and so was not grounds for reversal. I am unimpressed by the fact that counsel for the Commonwealth refrained from pressing the point after the reference was made, or from mentioning this silence during his closing arguments. The motivation behind the reference in cross-examination was clearly to place the silence at the time of arrest before the jury. In contrast to Gbur, the prosecutor here deliberately presented Robinson’s silence at the time of arrest to the jury, for comparison to his testimony at trial. The questioning which led to the reference to his silence focused on Robinson’s failure to remain and speak to police before he was apprehended. This appears to me to be sufficient exploitation of that silence to warrant either adequate cautionary instructions or a mistrial.¹

The last factor to be considered is the promptness and adequacy of the trial court’s instructions. After Robinson made the statement concerning his silence, counsel objected. A sidebar conference was held off the record. However, the trial court gave no instructions at this time, and the prosecutor continued with the questioning. Clearly, were cautionary instructions to have been of any value, they should have been given promptly. They were not. Instead, the jury was permitted to ruminate over the possible implications of the prosecutor’s questions and Robinson’s answers during an entire night.

Further, when the instructions were given the next day, the trial court instructed the jury that they could consider why Robinson failed to go to the police before he was arrested and explain that he was an innocent witness, but that they could not consider silence after he was arrested. While such instructions are strictly correct, I do not see that they in any way alleviated the problems arising from the prosecutor’s misconduct. Rather than erasing the prejudice from the jury’s mind, the instructions merely embedded it further.

I agree with the trial court that:

[It is] virtually impossible for the jury to disregard the logical question raised by the defendant’s exculpatory testimony that he witnessed a crime committed by others and saw the police arrive: Namely, why was nothing said. The failure of an innocent witness to come forward is neither incriminating nor interrogatory. It is simply a permissible logical question prompted by the defendant’s own testimony about his behavior before his arrest.

These logical questions in the minds of the jury are precisely the reasons why any curative instructions offered by the judge were inadequate. Robinson had no duty to remain and offer himself as a witness. However, failure to come forward cast a pall of guilt over him. It would be difficult for a jury to attempt to artificially sever his post-arrest silence from his pre-arrest refusal to come forward. The inclination would be to consider them both together; the refusal to relate his explanation to the police at arrest adds weight to the implication of his guilt arising from his failure to offer himself as a witness.

Although questioning Robinson about his failure to speak with the police before his arrest was permissible, it was blatant and prejudicial error for the prosecutor to continue the questioning into the post-arrest area. Further, giving no instructions until the following day compounded the prejudice accruing against Robinson. For these reasons, I would reverse the order of the trial court, and grant a new trial.

1 . I would point out that I disagree with the Commonwealth’s contention that defense counsel’s decision to mention the post-arrest silence in her closing remarks precludes her from raising it on appeal before us. Counsel was clearly attempting to ameliorate the prejudice she felt had been created, and was zealously defending her client. I will not comment on whether this tactic was well- or ill-considered, and I would not view it as a waiver of this argument.