Commonwealth v. Fischere, 70 A.3d 1270

On April 28, 2009, 2-year-old Z.G. was found unresponsive in appellant Stephen Fischere’s home; he later died at the hospital. Autopsy determined homicide by multiple blunt force trauma and high neck subluxation.
Fischere gave a voluntary statement to police claiming the child fell down stairs; doctors and the medical examiner testified the injuries were inconsistent with that explanation and included recent bruises and internal injuries.
Defense counsel, during cross-examination of a detective, sought to show the police conducted an incomplete investigation and implied Fischere had been cooperative in the initial interview.
After detectives learned the child’s injuries were inconsistent with Fischere’s account, they requested a second interview; Fischere declined further questioning without counsel (invoking his right to counsel/silence).
The trial court ruled that if Fischere testified, the Commonwealth could impeach him with his pre-arrest silence as a fair response to defense insinuations; Fischere elected not to testify and was convicted of aggravated assault and endangering the welfare of a child and sentenced to 10–20 years.
On appeal, the court affirmed, holding defense counsel’s questioning opened the door to the Commonwealth’s use of Fischere’s pre-arrest silence and that its probative value outweighed any prejudice given limiting instructions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by permitting the Commonwealth to cross-examine the defendant on his pre-arrest silence if he testified	Commonwealth: pre-arrest silence is admissible as fair response when defense opens the door and for impeachment if defendant testifies	Fischere: allowing use of pre-arrest silence coerced him not to testify and violated his Fifth Amendment rights	Court held no error: defense opened the door; admission (or potential cross-exam) was permitted for fair response and impeachment, and probative value outweighed prejudice with limiting instructions

Jenkins v. Anderson, 447 U.S. 231 (recognizes prosecution may use pre-arrest silence to impeach defendant who testifies)
Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996) (Pennsylvania follows Jenkins; pre-arrest silence admissible to impeach testifying defendant)
Commonwealth v. Molina, 33 A.3d 51 (Pa. Super. 2011) (pre-arrest silence cannot be used as substantive evidence of guilt when defendant does not testify)
Commonwealth v. Adams, 39 A.3d 310 (Pa. Super. 2012) (defense comment on silence can "open the door" and allow fair-response use of pre-arrest silence)
Commonwealth v. Copenhefer, 719 A.2d 242 (Pa. 1998) (a defendant may not claim full cooperation while concealing invocation of the right to remain silent; opens door to using silence in fair response)
Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005) (pre-arrest silence may be used in fair response to defense arguments challenging police investigation; admissibility still requires probative-prejudice balancing)
Lettau v. Commonwealth, 986 A.2d 114 (Pa. 2009) (discusses state and federal constitutional protection against compelled self-incrimination)
Griffin v. California, 380 U.S. 609 (prosecution may not comment on defendant's silence at trial; distinct from use of pre-arrest silence when defendant testifies)
Salinas v. Texas, 133 S. Ct. 2174 (2013) (Supreme Court requires an express invocation of the Fifth Amendment in some noncustodial settings; silence alone may not suffice to invoke privilege)