Commonwealth v. McGriff
160 A.3d 863
Pa. Super. Ct.2017Background
- In April 2013 Malisha ("Lai Lai") Jessie was shot dead on the 3200 block of N. Bailey Street; three shell casings and two projectiles were recovered and autopsy showed multiple fatal gunshot wounds. Defendant Rudolph McGriff was tried and convicted of first-degree murder and related firearms offenses and sentenced to life without parole plus concurrent terms for weapons offenses.
- Key investigative evidence: cell‑phone extractions, surveillance video from Bailey/Allegheny, witness statements placing a person in a gray hoodie near the scene, and phone geolocation/call records linking phones and movements.
- After the homicide Detective Tolliver contacted McGriff by phone; McGriff said he would come to Homicide but did not; he later consulted counsel (Petrone). Family members testified that McGriff told them he would talk to police but never did.
- Defense sought to (1) exclude references to McGriff’s failure to appear for questioning as pre‑arrest silence and (2) call attorney Petrone to show counsel advised McGriff not to speak. The Commonwealth responded it would use the testimony circumspectly and, if Petrone testified, sought broad cross‑examination.
- Defense also attempted to call Jamar Nesmith and Rasheeda Rogers to show the victim participated in robberies (and a BB gun was found in the victim’s car), arguing an alternate motive; the court excluded that evidence as speculative, lacking foundation, and impermissible character/404(b) material.
- On appeal McGriff argued (A) admission of witnesses’ testimony about his failure to go to Homicide and Detective Tolliver’s testimony violated his Fifth Amendment right, (B) the court’s ruling on Petrone chilled defense presentation, and (C) exclusion of Nesmith/Rogers testimony and the BB gun improperly denied defenses showing another possible perpetrator. The Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument (McGriff) | Defendant's Argument (Commonwealth/Trial Court) | Held |
|---|---|---|---|
| Admission of testimony that McGriff failed to meet detectives (pre‑arrest silence) | Trial court violated Fifth Amendment by permitting repeated testimony that McGriff didn’t come to Homicide and by allowing it to be used as consciousness of guilt | Testimony was offered circumspectly to explain investigation and rebut defense attacks on detective diligence; mere reference to pre‑arrest silence is admissible in context/fair response | Waived in large part (no timely specific objections); on merits court did not abuse discretion — testimony admissible as circumspect, contextual, fair response (no Fifth Amendment violation) |
| Excluding/curbing testimony of defense counsel Anthony Petrone and scope of cross‑examination | Petrone would have testified he advised McGriff not to speak; exclusion/preclusion of that testimony deprived McGriff of rebuttal | Court said it would allow Petrone but would permit broad cross‑examination into reasons for the call and Petrone’s prior representation; defense elected not to call Petrone for strategic reasons | No error — court correctly preserved discretion to allow wide cross‑examination; defense strategy not to call Petrone waives claim of prejudice |
| Excluding testimony of Nesmith and Rogers (alternate perpetrator theory) | Witnesses would have testified victim participated in robberies and there was a contract hit — supports alternate perpetrator/motive; BB gun in victim’s car corroborates | Proffer lacked foundation, was speculative, risked character assassination of decedent, and ran afoul of Pa.R.E. 404(b); BB gun evidence had minimal probative value | Waived in part (objections not preserved); on merits exclusion was proper — evidence speculative, insufficient foundation, and inadmissible or irrelevant |
| Jury instruction/curative instruction regarding use of silence and Detective Tolliver testimony | Failure to give curative instruction prejudiced McGriff | Defense counsel declined a cautionary instruction for strategic reasons; trial court offered one and prosecutor did not oppose | Waived — defense declined curative instruction; no relief due to strategic waiver |
Key Cases Cited
- Commonwealth v. Montalvo, 641 A.2d 1176 (Pa. Super. 1994) (contemporaneous objection rule and preservation for appellate review)
- Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005) (pre‑arrest silence may be admissible to impeach or as fair response to defense argument; admissibility subject to Pa.R.E. 403 balancing)
- Commonwealth v. Adams, 104 A.3d 511 (Pa. 2014) (reference to pre‑arrest silence does not automatically violate Self‑Incrimination Clause when circumspect and not used to imply guilt)
- Commonwealth v. Whitney, 708 A.2d 471 (Pa. 1998) (precedent on references to defendant’s silence and reversal standards)
- Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (issues not raised below are waived on appeal)