Commonwealth, Aplt. v. Molina, M., 104 A.3d 430

Background

Victim disappeared; six months later her body was found in a house where a key witness (Benintend) had lived. Defendant Molina was charged with murder based largely on eyewitness testimony of Benintend and Pam Deloe.
Two days after the disappearance a Missing Persons detective visited Molina’s home; Molina later called the detective, denied involvement, gave inconsistent answers about when he last saw the victim, and refused to come to the station to talk further.
The detective testified to that telephone contact (including Molina’s refusal to come in); defense did not object to the testimony but objected during closing when the prosecutor used Molina’s refusal as an argument to the jury.
The jury convicted Molina of third-degree murder and related counts; he appealed arguing the prosecutor’s use of his pre-arrest silence as substantive evidence violated the right against self-incrimination.
The Superior Court (en banc) reversed, holding use of a non‑testifying defendant’s pre‑arrest silence as substantive evidence of guilt violates the privilege against self‑incrimination; this Court granted review and, invoking Article I, § 9 of the Pennsylvania Constitution, affirmed reversal and ordered a new trial.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Molina)	Held
Whether using a non‑testifying defendant’s pre‑arrest silence as substantive evidence violates the right against self‑incrimination	Pre‑arrest silence is not protected like post‑arrest/Miranda silence; no compulsion before arrest so such silence may be used as evidence	Allowing use of pre‑arrest silence to prove guilt penalizes the exercise of the right to remain silent and creates coercion to speak; it should be barred	Article I, § 9 of the Pennsylvania Constitution bars using a non‑testifying defendant’s pre‑arrest silence as substantive evidence of guilt (except for impeachment or fair‑response contexts)
Whether Molina’s phone refusal amounted to invocation of the privilege	No express invocation required; but Commonwealth argued pre‑arrest setting meant no compulsion so invocation not implicated	Molina argued his refusal sufficiently invoked the right and could not be used against him	Court found Molina’s refusal (ending the call/refusing to come in) was a sufficient invocation under the circumstances, but held broader rule independent of invocation: pre‑arrest silence cannot be used as substantive evidence
Whether federal Supreme Court authority (Salinas, Jenkins, Fletcher, Doyle) controls	Federal precedents permit some uses of pre‑arrest/post‑arrest silence (split in circuits); Salinas left unsettled whether silence is protected unless clearly invoked	Molina urged alignment with jurisdictions forbidding use of pre‑arrest silence as substantive evidence	Because federal law was fractured, Court relied on Pennsylvania Constitution and precedent to adopt broader state protection than some federal courts have given
Whether the error was harmless beyond a reasonable doubt	Commonwealth: the reference was brief and cumulative; evidence of guilt was strong	Molina: the Commonwealth’s case depended on two witnesses of questionable credibility; the prosecutor’s invitation to “factor in” silence was prejudicial	Court held the error was not harmless given witness credibility issues and that the prosecutor urged the jury to consider Molina’s refusal when deciding guilt — new trial ordered

Key Cases Cited

Griffin v. California, 380 U.S. 609 (1965) (prosecution comment on defendant’s failure to testify forbidden under Fifth Amendment)
Doyle v. Ohio, 426 U.S. 610 (1976) (post‑Miranda silence is protected by due process; using it to impeach is prohibited)
Fletcher v. Weir, 455 U.S. 603 (1982) (post‑arrest, pre‑Miranda silence may be used to impeach a testifying defendant)
Jenkins v. Anderson, 447 U.S. 231 (1980) (pre‑arrest silence may be used to impeach a testifying defendant)
Salinas v. Texas, 133 S. Ct. 2174 (2013) (fractured Supreme Court decision; declined to resolve cleanly whether pre‑custodial silence is protected absent clear invocation)
Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982) (Pennsylvania rejected Fletcher line for post‑arrest/pre‑Miranda silence and provided broader protection)
Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996) (pre‑arrest silence may be used to impeach a testifying defendant; left open use as substantive evidence)
Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005) (recognized use of silence as fair response to defense argument is permitted)
Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967) (noting risk of treating silence as an admission; silence can be ambiguous)
Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957 (1995) (discussing Article I, § 9’s scope and comparing state protection to Fifth Amendment)