Lead
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Wе granted review to consider whether the right against self-incrimination, as protected by the United States and Pennsylvania constitutions, is implicated when a Commonwealth witness, such as an investigating detective, testifies without adverse implication that the defendant refused to answer questions prior to arrest. As previously observed in Commonwealth v. DiNicola,
In the Highland Garden neighborhood of the City of Chester, during the evening of September 27, 2007, O’Neil Black-wood (Victim) suffered a fatal gunshot wound to his head during a burglary of his home by threе assailants who intended to steal cash and drugs from Victim. The assailants also assaulted his wife, while their young children were upstairs in the home.
As is relevant to the issue at bar, a detective investigating the crime testified as follows:
[Assistant District Attorney (“ADA”) ]: During your investigation, did you have the occasion to locate [Defendant]?
[Sergeant]: Yes.
[ADA]: Do you recall what date that was?
[Sergeant]: I believe it was October 19,2007.
[ADA]: And on that date were you with anyone else? [Sergeant]: Detective Slowik.
[ADA]: And did you attempt to interview [Defendant]?
[Sergeant]: Yes we did; however, he didn’t want to speak to us at that time.
[ADA]: Did you identify yourselves as law enforcement?
[Sergeant]: Yes. We identified ourselves and told him that we’d like to interview him in reference to [Victim’s] homicide and that his name came up in the matter.
[ADA]: And in response to that what did he say?
[Sergeant]: He said he had nothing to say.
[ADA]: What then — did you have a further conversation with him?
[Sergeant]: Yes. We also asked him to consent to provide us with a DNA sample with the use of a DNA collector at which time he agreed.
Notes of Testimony (N.T.), 5/7/09, at 251-252. Defense counsel requested a sidebar following this line of questioning, objecting that the exchange violated Defendant’s constitutional right to remain silent. Id. at
At the conclusion of trial, during which Defendant did not testify, a jury convicted Defendant of Murder in the Second Degree, Burglary, Aggravated Indecent Assault, and Criminal Conspiracy for Robbery. 18 Pa.C.S. §§ 2502(b), 3502(a), 3125, and 908, respectively. In July 2009, the trial court sentenced Defendant to a tеrm of life imprisonment for Murder in the Second Degree and additional terms for the other convictions to run consecutively.
Defendant appealed his judgment of sentence raising several issues, including the issue currently before this Court, in which Defendant contends that the trial court abused its discretion in allowing the prosecution to reference Defendant’s pre-arrest silence during the detective’s testimony. In its Pa.R.A.P. 1925(a) opinion, the trial court emphasized that admission of evidence is within the trial court’s discretion and should not be overturned absent an abuse of that discretion or an error of law. In regard to Defendant’s assertion that the testimony violated his right against self-incrimination, the trial court opined that “Defendant’s Fifth Amendment rights had not yet attached” given that Defendant had not been charged with any crimes. Tr. Ct. Op. at 8. The court additionally observed that the detective’s testimony did not constitute an impermissible comment on Defendant’s silence but instead “was utilized as foundational evidence demonstrating how the police came to obtain Defendant’s DNA sample.” Id. Accоrdingly, the court concluded that it did not abuse its discretion in overruling defense counsel’s objection.
The Superior Court affirmed the trial court’s determination that Defendant’s right against self-incrimination had not been violated during the detective’s testimony. Commonwealth v. Adams,
The Superior Court, however, distinguished the case at bar from Molina. In Molina, a detectivе testified regarding her investigation of what was then a missing person investigation but later evolved into a homicide investigation. She explained that she interviewed Molina by phone because the victim had been seen with him. The detective recounted that Molina answered several of her questions but then refused to come to the station for further questioning. While Molina’s defense counsel did not object to this line of questioning, he did object when the prosecutor, during closing arguments, arguably relied
The Superior Court in Molina recognized that the mere reference to a defendant’s silence does not violate a defendant’s right against self-incrimination but held it was exploited by the prosecution’s use of Molina’s silence as substantive indicia of guilt. Molina,
Concomitantly, in the instant case, the Superior Court opined that the detective’s testimony was “offered for a narrow purpose, namely to demonstrate the nature and focus of the investigation, and as foundational evidence demonstrating how the police came to obtain Defendant’s DNA sample, which was later admitted into evidence at trial,” rather than as substantive evidence of guilt. Adams,
Defendant sought allowance of appeal in this Court. We granted review to consider the following issue as stated by Defendant:
Is the Fifth Amendment right against self[-]incrimination, and Article [I,] Section 9 of the Pеnnsylvania Constitution, implicated by testimony presented by the Commonwealth that the [sergeant] investigating a homicide stated that [Defendant] did not want to speak with the officer, followed by the [sergeant]’s testimony that he introduced himself as a police investigator, that he was investigating a homicide and [Defendant’s name had come up?
Commonwealth v. Adams,
Defendant rejects the Superior Court’s conclusion that the detective’s testimony was permissible because it was utilized only for the narrow purpose of setting forth the detective’s investigation. Instead, Defendant contends that the reference to Defendant’s pre-arrest refusal to speak with the detective violated his right against self-incrimination because the testimony “could be considered as substantive evidence of guilt.” Defendant’s Brief at 18. Defendant asserts that the detective’s testimony thus unconstitutionally burdened his right against self-incrimination.
In support, Defendant relies upon this Court’s decision in Commonwealth v. Costa,
Defendant also relies upon decisions of our sister courts holding that a defendant’s right against self-incrimination is violated by a detective’s testimony indicating that a defendant refused to speak to investigators prior to arrest. The nonbinding decisions upon which he relies, however, involve distinguishable situations, including where the detective involved does not detail the course of his or her investigation, where the sole purpose of the reference is to infer guilt, or where there are repeated references to the defendant’s silence. Defendant’s Brief at 25-29 (citing, inter alia, United State v. Burson,
Defendant, however, attempts to analogize these сases by contending that the detective’s testimony in the case at bar was not necessary to describe the course of the investigation, given that the detective had already recounted interviews with Victim’s wife and a neighbor, who both identified Defendant as one of the assailants. He asserts that at the time of the interview, the detective knew that he was a suspect in the murder. Moreover, Defendant emphasizes that the prosecutor did not merely ask the detective once whether he was willing to speak. Instead, he observes that the detective also stated that Defendant “had nothing to say” after they informed him that they were law enforcement officials investigating a crime in which his name had “c[o]me up.” N.T., 5/7/09, at 251-252. Defendant alleges, “This exchange was designed to insure that the jury could conclude that [Defendant] knew he was refusing to speak to an investigating detective about a homicide in which [Defendant] was at least a suspect, and not to further the jury’s understanding of the nature, scope and progress of the investigation.” Defendant’s Brief at 31. Defendant concludes that the questions “were deliberate and repeated, and the reference to [Defendant’s] silence was clear.” Defendant’s Brief at 31. Accordingly, Defendant urges this Court to reverse the decision below and find that the trial court erred in allowing the admission of the detective’s testimony referencing his pre-arrest silence.
The Commonwealth urges the Court to affirm the decision of the Superior Court because the detective’s brief reference to Defendant’s pre-arrest silence was isolated and utilized merely to explain the extent and focus of the police investigation. Moreover, the Commonwealth contends
This Court has repeatedly recognized that questions concerning the admissibility of evidence are within the sound discretion of the trial court and will only be reversed upon a showing that the court abused its discretion. Commonwealth v. Johnson,
This Court has previously concluded that mere reference to a defendant’s silence does not necessarily impinge constitutional rights when guilt is not implied. See DiNicola,
Applying this precedent to the case at bar, we ultimately agree with the Commonwealth that the trial court acted within its discretion in concluding that the detective’s testimony was not intended to imply a tacit admission of guilt by Defendant. Id. For all the reasons compellingly detailed by the dissent, we acknowledge, however, that this case presents a closer case than suggested by the Commonwealth,
Accordingly, we affirm the Superior Court’s order.
Notes
. The Superior Court, pursuant to the request of the trial court in its Pa.R.A.P. 1925(a) opinion, vacated the judgment of sentence after finding the initial sentence illegal because it imposed separate sentences for two crimes which should have merged. No party challenges the sentencing aspect of the Superior Court's decision.
. The Superior Court opinion sets forth the details of the crime, which are not relevant to the issue before this Court. Commonwealth v. Adams,
. Defense counsel addressed the detective’s testimony in his closing argument, suggesting a variety of explаnations for why the Defendant would not cooperate. In turn, the Commonwealth responded in its closing argument questioning the asserted rationales and observing that Defendant failed to inform the detective of his alibi defense offered at trial. Defendant did not object to the Commonwealth’s closing statement referencing his pre-arrest silence, presumably because it was a fair response to defense counsel’s argument. Although the Superior Court denied relief on this issue, Defendant does not raise any challenge related to the closing arguments before this Court. Accordingly, we will not address this issue further.
. The Superior Court’s decision in Molina was affirmed by this Court,
. We additionally granted review to consider, in the event we found error, whether such error was harmless. As we conclude that the trial court did not err in failing to sustain Defendant’s objection to the questioning of the detective regarding his silence, we do not address the issue of harmless error.
Additionally, given that we conclude that Defendant’s right against self-incrimination was not violated, we will assume arguendo that he sufficiently invoked his right against self-incrimination to the extent express invocation is required under the recent plurality decision of the United States Supreme Court in Salinas v. Texas, — U.S. —,
. The testimony in Costa was as follows:
Q. When were the charges filed against the defendant for his alleged sexual abuse of [the victim]?
A. That would have been August 23rd of 1993.
Q. Did the defendant say anything to you when these charges were filed?
A. No.
Costa,
. In relevant part, the United States Constitution decrees that “No person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. Similarly, the Pennsylvania provision dictates that the accused "cannоt be compelled to give evidence against himself[.]” Pa. Const, art. 1, § 9. While Section 9 has been interpreted to provide greater protections than the Fifth Amendment on specific issues, Defendant has not presented argument distinguishing the provisions. Moreover, we are not convinced that the federal and state provisions differ on the limited question regarding whether the brief reference to Defendant’s silence constitutes a violation of the right against self-incrimination where the silence is not utilized as substantive evidence of quilt.
Concurrence Opinion
concurring.
I cоncur in the result reached by the Court on the basis of my Dissenting Opinion in the companion case, Commonwealth v. Molina,
Dissenting Opinion
dissenting.
Because I would conclude that the reference to Appellant’s pre-arrest silence violated Article 1, Section 9 of the Pennsylvania Constitution, and that the error was not harmless, I respectfully dissent.
As explained in the companion case of Commonwealth v. Molina,
I am also unconvinced by the lead opinion’s reliance on an exception pertaining to evidence introduced for another purpose, such as explaining the sequence of the investigation. Indeed, I find such a proposition to be a mere pretext in the context of the present matter, as it seems readily
Because I would find trial error, I would also reach the question of whether the error was harmless. As set forth in Commonwealth v. Young,
The second element of the test is not at issue in this case, as there is no contention that the evidence of Appellant’s prearrest silence was cumulative of other proofs. As for the first prong, I believe that the prejudice was not de minimus. To the contrary, the Commonwealth argued that Appellant’s guilt should be inferred from his refusal to cooperate with the police in the pre-arrest timeframe. In particular, after defense counsel suggested various reasons consistent with innocence why Appellant might not have wished to speak with the police, see Commonwealth v. Adams,
But [Appellant] takes the odd step. He wants to — police say hey, look, you’ve been implicated in a murder. You want to talk to us? He doesn’t remain silent. He chooses to talk. And he doesn’t say you are out of your mind. I was at this party. It was a month later. I’m at this party, I was having a great time all day. I remember it was Big Tome’s house. He didn’t say that. He says I don’t have anything to say to you. He chooses not to speak and he chose to say that. He didn’t choose to say, whoa, I got an alibi. No prison for me. You’renot catching me on a murder rap. He says I have nothing to say to you.
Id. at 315 (quoting N.T., May 8, 2009, at 112-13).
The lead opinion discounts the relevance of this aspect of the trial on grounds that Appellant himself sought to explain such silence during his summation, see Opinion Announcing Judgment of the Court, op. at 603 n. 3,
As for the final prong, the question is not as straightforward as usual, since the specific question on which we granted review is whether, in applying the harmless error doctrine, the Superior Court acted contrary to prevailing law by considering evidence of guilt that had been contradicted by the defense. See Commonwealth v. Adams,
I believe it would be unwise for this Court to alter the harmless-error test in the manner suggested by the Commonwealth, primarily for the reasons explained in Young. Most notably, it is not within the province of reviewing courts to determine the comparative credibility of conflicting evidence. See Young,
In summary, then, I would hold that it was error for the trial court to overrule Appellant’s objection to the Commonwealth’s reference to his pre-arrest silence, and that the error was not harmless beyond a reasonable doubt. Accordingly, since the Court concludes that there was no error and affirms the Superior Court’s order, I respectfully dissent.
. Because the Commonweаlth's burden is limited to adducing facts sufficient to demonstrate that the defendant committed all elements of the offense(s) charged, I also question the relevancy of information tending to explain why the police did what they did, unless the investigation itself is at issue in the case. See, Commonwealth v. Jones,
. The Superior Court did not mention that an alibi witness had testified.
Dissenting Opinion
dissenting.
I would not address whether the Fifth Amendment applies in the instant context,