Lead Opinion
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
We 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
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 three 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]?
*603 [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 254-258. The trial court overruled the objection.
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,
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. Accordingly, 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, 39 A.3d 310 (Pa.Super.2012). The court acknowledged that it had recently held in Commonwealth v. Molina, 33 A.3d 51 (Pa.Super.2011), that the right against self-incrimination prohibits the use by the prosecution of a non-testifying defendant’s pre-arrest silence as substantive evidence of guilt. Adams, 39 A.3d at 318.
The Superior Court, however, distinguished the case at bar from Molina. In Molina, a detective testified regarding her investigation of what was then a missing person investigation
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, 33 A.3d at 56. The intermediate appellate court thus concluded that the detective’s testimony in Molina was permissible because it was employed for the narrow purpose of describing the police investigation and not for implying the defendant’s guilt but that the defendant’s right against self-incrimination was violated when the prosecution used Molina’s silence as substantive evidence of guilt in closing arguments.
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, 39 A.3d at 319. Accordingly, the court concluded that the trial court did not err in overruling the objection and allowing this testimony. Id. (citing DiNicola, 866 A.2d at 336-37 (“[T]he mere revelation of silence does not establish innate prejudice”); Whitney, 708 A.2d at 478 (“[e]ven an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt”)).
Is the Fifth Amendment right against self[-]incrimination, and Article [I,] Section 9 of the Pennsylvania 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, 616 Pa. 437, 48 A.3d 1230 (2012).
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, 560 Pa. 95, 742 A.2d 1076, 1078 (1999), in which we granted relief to a testifying defendant claiming ineffectiveness of counsel due to counsel’s failure to object when a detective referenced the defendant’s post-arrest silence.
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, 952 F.2d 1196, 1202 (10th Cir.1991) (finding error in eliciting testimony of two Internal Revenue Service agents regarding the defendant’s silence but finding error harmless); State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, 339 (2004) (finding prosecution utilized defendant’s silence to infer guilt); Taylor v. Commonwealth, 26 Va.App. 485, 495 S.E.2d 522, 527 (1998) (finding that the prosecution’s sole objective in using silence was to prove guilt)).
Defendant, however, attempts to analogize these cases 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
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 that the testimony provided a foundation for later questions related to how the police obtained the Defendant’s DNA sample. The Commonwealth emphasizes that the reference to Defendant’s silence was not employed as a tacit admission of guilt. The Commonwealth observes that this Court has previously held that prosecutors can reference a defendant’s pre-arrest silence to impeach a defendant’s testimony at trial and as fair response to a defendant’s arguments. Commonwealth Brief at 16 (citing DiNicola, 866 A.2d at 335-336). Additionally, it observes that we have previously stated that not all references to silence implicate a defendant’s right against self-incrimination. Commonwealth Brief at 13 (citing DiNicola, 866 A.2d at 337). Thus, the Commonwealth argues that the brief and limited reference to Defendant’s silence in this case did not burden Defendant’s Fifth Amendment right against self-incrimination.
This Court has repeatedly recognized that questions concerning the admissibility of evidence are within the sound
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, 866 A.2d at 337; Whitney, 708 A.2d at 478. While we have interpreted the constitutional right against self-incrimination generally to prohibit prosecutors from referencing a defendant’s silence as substantive evidence of guilt, this Court has also concluded that the right against self-incrimination is not burdened when the reference to silence is “circumspect” and does not “create an inference of an admission of guilt.”
Accordingly, we affirm the Superior Court’s order.
. 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, 39 A.3d 310, 312-314 (Pa.Super.2012).
. Defense counsel addressed the detective’s testimony in his closing argument, suggesting a variety of explanations 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, 104 A.3d 430 (Pa.2014) (plurality). We view the issues in Molina to be sufficiently distinct from this case to allow for separate legal analysis.
. 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. —, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013) (plurality).
. The testimony in Costa was as follows:
*607 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, 742 A.2d at 1077 (Pa. 1999).
. 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 "cannot 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 concur in the result reached by the Court on the basis of my Dissenting Opinion in the companion case, Commonwealth v. Molina, 628 Pa. 465, 104 A.3d 430, 2014 WL 6477607 (2014). Because this case involves a pre-arrest scenario, in my view, the reference to appellant’s pre-arrest silence during the course of the police investigation did not impinge upon his constitutional rights, irrespective of whether the prosecution later exploited the reference. In the alternative, I agree with Mr. Justice Baer’s explanation of why the reference at issue did not implicate the right to silence, even if such a right could be said to obtain in the pre-arrest scenario.
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, 628 Pa. 465, 104 A.3d 430, 2014 WL 6477607 (2014) (Opinion Announcing Judgment of the Court), the recent decision in Salinas v. Texas, — U.S. —, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013), established that, where the defendant does not expressly invoke his privilege against self-incrimination prior to his arrest, no Fifth-Amendment right attaches. However — and again, for reasons expressed in the Molina lead opinion — I would find that Article I, Section 9 of the Pennsylvania Constitution provides greater protection. Thus, in my view the trial court erred under that provision in permitting introduction of Appellant’s refusal to speak with the police. Notably, in this respect, Appellant did not testify at his trial, and hence, his pre-arrest silence lacked any impeachment value.
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
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, 561 Pa. 34, 748 A.2d 166 (1999), an error will be deemed harmless if: (1) the error did not prejudice the defendant or the prejudice was de minimus; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. The Commonwealth bears the burden of proving
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, 39 A.3d 310, 320 (Pa.Super.2012) (quoting N.T., May 8, 2009, at 37-39), the Commonwealth responded:
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’re not 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, 104 A.3d at 514 n. 3; see also Adams, 39 A.3d at 320 (suggesting Appellant’s counsel “made a tactical decision” to comment on Appellant’s prearrest silence during his summation); cf. Opinion Announcing the Judgment of the Court, op. at 609-10, 104 A.3d at 517-18 (indicating that the reference to Appellant’s silence was “contextual and brief,” and that “guilt [was] not implied”). It seems to me, however, that Appellant was left with no real choice but to attempt such an explanation after his objection
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, 616 Pa. 437, 438, 48 A.3d 1230, 1230-31 (2012) (per curiam). The Commonwealth appears to agree that the intermediate court departed from precedent, as it urges this Court to alter the harmless-error standard so that an appellate court may consider proofs that have been contradicted by the defense. See Brief for Commonwealth at 10, 25-30. In this regard, Appellant points out that he presented the testimony of an alibi witness that contradicted all of the testimony from the Commonwealth’s witnesses placing Appellant at the scene of the crime. Notably, the Superior Court relied exclusively on this latter testimony (as opposed to physical evidence) as constituting the overwhelming evidence of Appellant’s guilt for purposes of its harmless-error inquiry. See Adams, 39 A.3d at 322-23. While the intermediate court described such testimony as “uncontradicted,” id. at 322, in fact it was logically contradicted by the alibi testimony.
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, 561 Pa. at 86, 748 A.2d at 194 (“Where such factfinding functions are implicated, appellate courts are incompetent to choose which side’s evidence is more persua
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 Commonwealth'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, 540 Pa. 442, 451, 658 A.2d 746, 751 (1995) (suggesting that information about the police investigation was relevant to answer defense counsel's pointed attack upon the adequacy of that investigation). I am therefore particularly circumspect about permitting the Commonwealth to utilize the course-of-the-investigation as a blanket excuse for introducing prejudicial material that would otherwise be inadmissible.
. 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, because, as Justice Saylor explains, Article I, Section 9 of the Pennsylvania Constitution provides greater protection and precludes the prosecution’s use of an accused’s silence, except in certain limited circumstances not implicated herein. See Dissenting Opinion (Saylor, J.) at 612 & n. 1, 104 A.3d at 519 & n. 1. In the instant case, Appellant did not testify or otherwise raise any issue upon which his silence had significant probative value, and, thus, the privilege against self-incrimination under our state charter precluded the Commonwealth from using that silence at trial. Moreover, I agree with Justice Saylor that our current harmless error jurisprudence adequately serves the interest of judicial efficiency, and that the Commonwealth’s preferred course ignores this Court’s limited competency in assessing the relative value of witness credibility. See id. at 613-14, 104 A.3d at 520. Finally, under the instant circumstances, I further agree with Justice Saylor that the Commonwealth’s use of Appellant’s pre-arrest silence may well have affected the jury’s verdict and, thus, warrants retrial. Id. at 612-15, 104 A.3d at 519-20. Accordingly, I respectfully dissent.