*1 A.2d 329 Pennsylvania, Appellant COMMONWEALTH of DiNICOLA, Appellee. Joseph David Pennsylvania. Supreme Court of Argued Sept. 19, 2005.
Decided Jan. *3 DiGiacomo, PA, for the appellant. Paula C. Com. Meadville, Rowden, DiNicola, Wesley Joseph J. David appellee. CAPPY, C.J., CASTILLE, NIGRO, NEWMAN,
Before: SAYLOR, LAMB, EAKIN and JJ.
OPINION Chief Justice CAPPY. question Appellee’s
This appeal presents whether privilege against Fifth Amendment self-incrimination was vio- by question lated reference to his silence. This brought by Appellant challenges before our court who that trial counsel ineffective. Because determination was we privilege, find no Fifth Appellee’s violation Amendment of ineffective assistance of trial counsel was finding attendant Therefore, below, for the reasons stated we reverse in error. trial and awarding new the order of sentence. judgment reinstate convicted of indecent assault
Appellee aggravated offenses, arising related from his interaction with fourteen K.H., a at a year youth placement facility old resident where member. Appellee employed staff Several weeks unrelated, em- voluntary departure after from his facility, at the K.H. confided to a staff member ployment touched her in an sexual manner. Appellee inappropriate, Against K.H. that her disclosure be in confidence. kept asked wishes, disclosure, K.H.’s the staff member reported ensued, investigation by facility an first staff and later Police. Pennsylvania State
The investigating trooper initially spoke facility with the K.H., supervisor prior and interviewed who confirmed her disclosure. The also staff trooper interviewed members who and, to Appellee varying degrees, worked with corroborated had maintained a relationship close with K.H. interview, trooper telephoned request him indicating allegations against relating had been made to his at the employment facility, but would not discuss details over the declined to meet phone. Appellee trooper, Later, attorney. a desire to consult his the attor- expressing ney trooper Appellee adamantly contacted the and stated that conduct, but, denied on the any inappropriate advice of coun- sel, would assert his under the Fifth Amendment to the United States Constitution to remain silent at any interview *4 police. with arrested and of-
Appellee subsequently charged was with ranging aggravated fenses from indecent assault of a person years less than sixteen old to of a minor. corruption trial, ensuing jury At the after from presenting testimony witnesses, K.H. and other called the upon Commonwealth trooper solely age to establish at the time arresting Appellee’s cross-examination, of his offenses. trial counsel On the direct examina- attempted proceed beyond scope After the Common- doing from so. precluded tion but was rested, however, as a trooper trial counsel called wealth for an offer request the Commonwealth’s defense witness. On his reason for summarized proof, counsel question that he calling trooper by stating wished adequacy Pennsylvania “to of the State trooper determine client, I DiNicola. don’t my Dave investigation against Police These investigation. questions they put adequate think to be to show directly proposed present are [sic] (T.T. p. this.” entitled to let them know I think should be 16). During followed. trooper
The direct examination examination, and raised the objected that trooper lead to the questions concern that the line of would (T.T. p. of silence. pre-arrest assertion revealing Appellee’s sidebar, 29) trial concern at counsel presented When with this that’s investigated anything “All I if he responded: asked case. I think it’s theory guilt on this inconsistent with 30).1 (T.T. very p. clear cut.” trial counsel asked being permitted proceed, After that his investi- leading questions implying a series of trooper See, N.T., e.g., minimal one-sided. efforts were gative and/or (“In 18,1998, nothing here—nothing at 29 fact whatsoev- Nov. your might er be inconsistent investigated here; right? any- DiNicola is Was theory guilty that Dave tend to otherwise? investigated might else show thing objection, another side- Anything?”). On the Commonwealth’s ensued, attorney the district during bar discussion which exchange, opinion regarding the trial court noted in its initial this As looking response trooper for a from the as to defense counsel was trooper or information the uncovered that would be either consistent guilty. trooper's with the conclusion that inconsistent proper Appellee's have been a silence was not relevant and would not 6/29/99, 3). (Trial slip opinion p. question. to that court initial in this case reviewed this its decision particular exchange from the notes of and concluded that is clear ”[i]t trying testimony elicit evidence from the trial counsel was trooper that have been favorable to DiNicola.” Commonwealth DiNicola, (Pa.Super.2000). *5 to the open that such door questioning advised would on his unsuccessful effort to interview trooper elaborating The trial court investigation. in furtherance of the Appellee trial counsel from on his discourage proceeding attempted course, that the central issue before suggesting intended that of the credibility aggressive questioning jury was as trial jury, particularly not resonate with trooper might the officer any unable to offer evidence counsel was should have uncovered. The court nevertheless overruled objection, and trial counsel reiterated: Commonwealth’s “Now, look in anything by you—anything—did you was done if charges other direction to see these were unfounded?” any that he contacted responded Appellee, The officer which him, shifting away trial counsel the focus point interrupted trooper’s inquiry. from Appellee’s cross-examination, however, attorney On the district re- subject turned to the conversation trooper’s Appel- lee, eliciting trooper’s explanation Appellee declined interview, for an and that counsel for request Appellee trooper Appellee later contacted the and advised denied allegations right but would invoke his to remain silent any personnel. discussion with law enforcement
The remainder of the defense case consisted of testimony, in he refuted the allega- which Commonwealth’s conduct, tions of criminal and of evidence from numerous character witnesses. The convicted of all Appellee counts, imposed and the court a sentence of incarceration for months, twenty-four eleven and one-half to with a subsequent term of probation. counsel,
Armed with new filed a post-sentence motion ineffectiveness of trial counsel. It alleging was assert- ineffective, first, object ed that trial counsel was for failing to the trooper’s testimony revealing Appellee’s pre-arrest silence; second, opening the door to the inevitable revelation that asserted his to remain silent. A scheduled; however, on the matter hearing original court, presented transcript record this contains no of an stage at this or other reference that evidentiary hearing any actually indicate or not it conducted.2 would whether *6 pleas The common court did not assess the separately ineffectiveness; rather, global of it reached a con- allegations to allegations clusion that there was no merit the ineffec- relief. The trial decision tiveness and denied court’s rested trooper’s its determination better a request for an interview was characterized as denial charges capable being of the rather than as silence viewed Further, by jurors as a tacit admission. the court noted that a references to a strong proscription against while there is post-arrest defendant’s silence circumstances which the trial, see, at testify e.g., defendant elects not to Commonwealth Clark, (1993), Pa. 626 A.2d a defendant’s being silence is more amenable to offered into pre-arrest evidence, testify, at least where the defendant elects to Bolus, occurred in this case. See 545 Pa. (“[W]hen (1996) 680 A.2d a criminal defendant trial, right to remain silent and testifies his own waives neither the nor the Pennsylvania United States Constitution from a prohibit prosecutor impeaching defendant’s credibili- silence.”). ty by referring pre-arrest to his The court conclud- ed: directly
Therefore because the defendant never con- an accusation of criminal to fronted with misconduct which simply he remained silent but rather was asked for an appointment pre-arrest for an interview and because silence circumstances, is admissible under certain the defendant has failed to the first of the satisfy prong ineffectiveness test, claim arguable i.e. that the has merit. however, a appeal, three-judge panel
On DiNicola, disagreed. See Commonwealth v. (“DiNicola /”). The court DiNicola I (Pa.Super.2000) object. Reasoning focused on trial counsel’s failure to that the the inquiry scope investigation represented into the might to obtain evidence that have established attempt Appel- occurred; hearing 2. The Commonwealth notes in its brief that a howev- er, scope it does not discuss its content. and/or not, itself, in and of innocence and did reveal lee’s silent, panel remain had asserted his questioning initial found a reasonable basis for counsel’s prosecu- It the elicitation id. at 200. was trooper. See through cross-examination tion of Appellee’s Proceeding point, from that panel concern. that caused had not testified at his the erroneous belief that trial trial, found merit in the claim counsel was panel cross-examination. failing object salient ineffective stated, Furthermore, panel conclusory See id. at 202. fashion, resulting Appel- that the from reference to However, at 202. lee’s silence substantial. See id. court the record to assess whether counsel inadequate deemed object. id. Accord- failing had a reasonable basis for See evidentiary hearing remanded for an limited ingly, panel question. to this *7 court,
At the before the common subsequent hearing pleas trial, trial counsel confirmed he had stated at that his what in the crimi- questioning designed expose inadequacies was incon- investigation Appellee’s gave nal into conduct. Counsel object his failure to to the explanations regarding sistent hand, trooper. relevant cross-examination of the On the one objection counsel stated that he felt that an could have harmed defense, in light having of his asked similar particularly See, N.T., 23, 2000, at 20-21. On the questions. e.g., Oct. hand, other counsel later conceded that he should have assert- objection any and that he could not recall made having ed during decision or not to do so concerning evaluative whether at 30-31. inquiries. the relevant See id. remand, court read I as pleas
On the common DiNicola rule to the effect that a defendant’s establishing bright-line silence not be admitted into evidence. Fur- pre-arrest ther, court, considering trial counsel’s inconsistent object failure to to the elicitation of responses regarding his silence, pre-arrest ultimately references to conclud- Appellee’s basis to effec- any designed ed that counsel lacked reasonable as the Appellee’s Accordingly, Superior tuate interests. had determined the merit and already arguable in this equation present of the ineffectiveness were prongs of the case, prongs that all three the trial court determined thus, that, it had been met and was inquiry ineffectiveness a new trial. compelled Appellee to award divided, en banc then A appealed. The Commonwealth of the Court affirmed. See Commonwealth panel II”). (“DiNicola DiNicola, At 966 (Pa.Super.2002) outset, that the decision majority acknowledged part panel’s based in remand DiNicola was at trial testify that did not understanding incorrect and, therefore, his Fifth Amendment had not waived concluded, majority id. at 968. The how- remain silent. See ever, of the record did prior panel’s misapprehension that the that trial on remand not invalidate the trial court’s conclusion assistance, since, regardless counsel rendered ineffective testified, objected should have attorney his whether con- testimony that inquiries elicited Commonwealth’s that majority silence. The stated refer- cerning pre-arrest his if used for permissible only ences to silence are reference prosecutor’s Id. 971. Since impeachment. not related to Appellee’s pre-arrest rather, the trooper concerned with credibility, but whether again concluded proper investigation, majority conducted a merit. arguable claim Appellee’s ineffectiveness See id. prong the reasonable basis ineffectiveness
Regarding holding trial based majority endorsed the court’s inquiry, expect original on its did not findings counsel *8 silence, reason for had no question pre-arrest would reveal and, concededly object prosecution’s question to to the failing Therefore, the objected earlier. See id. at 972. should have basis for court concluded that trial counsel lacked a reasonable See id. failing challenge relevant cross-examination. majority rejected Com- prejudice prong, As overwhelming that based on the evi- argument monwealth’s dence; even necessarily have been convicted Appellee would court noted the reference to silence. The pre-arrest without actual concerning central at trial presented that the evidence criminal conduct on Appellee’s part was sharply conflicting, jury’s and the resolution necessarily grounded was in credibili- II, ty determinations. See DiNicola at 972. Accord- ingly, the majority previous reiterated the panel’s conclusion from resulting the reference to pre-arrest silence was substantial. See id. Court, traveled
Having through twice the Superior allocatur granted so this Court could consider whether Appellee’s Fifth Amendment privilege against self-incrimination was vio- lated by earlier, reference silence. As stated this case questions involves two distinct of ineffectiveness of trial counsel. The first question focuses on the failure of object counsel to when the state investigating testified trooper that, pre-arrest, Appellee had asserted his right to remain silent. The second question of ineffectiveness concerns stewardship of counsel in opening the door that led to the trooper’s reference pre-arrest silence.
A claim of ineffectiveness of counsel is by evaluated oft-stated test articulated in Commonwealth v. three-prong Pierce, 153, (1987): 1) 515 Pa. 527 A.2d analysis 2) the underlying merit; claim of error arguable applica tion of the “reasonable basis” test to if determine the course chosen counsel designed effectuate his client’s interests; 3) a determination of whether the accused has demonstrated prejudice. It is not essential to apply the test in any order, given and if the proponent of ineffectiveness fails to satisfy any prong test, one of the the entire claim fails. Commonwealth v. Travaglia, 541 Pa.
(1995). begin
We
our analysis
claim,
of the first ineffectiveness
object
failure of trial counsel to
to the reference to pre-arrest
silence, with a brief
overview
relevant
facets of the
United
Supreme
States
Court’s jurisprudence on silence.3 In
its seminal decision in
California,
380 U.S.
Griffin
(1965),
S.Ct.
560
trial,
testify at
the Fifth Amendment
the defendant does not
post-
from
government
the
a defendant’s
precludes
using
of guilt.
silence as substantive evidence of consciousness
arrest
Ohio,
610,
Griffin, v.
Doyle
96
Following
426 U.S.
S.Ct.
2240,
(1976),
49 L.Ed.2d
the Court
the Due Process
91
invoked
the
the prohibi
Fourteenth Amendment
to extend
Clause
post-Miranda4
silence,
use of
to im
against prosecution
tion
Doyle,
Miranda
In
the defendant
provided
peachment.
and,
thereto,
his
at arrest
exercised
warnings
pursuant
right
trial,
remain silent. At
when the defendant offered an
to
for
on the
night
question,
his actions
explanation
attempted
impeach
to
defendant with
fact
prosecution
in the
post-arrest
silence
wake
Characterizing
silence.
warnings
“insolubly
to remain silent as
ambigu
ous,”
fundamentally
that it would be
unfair to
Court held
Miranda
warnings
impliedly assuring
accused
provide
penalty
prosecu
that silence
no
then to allow the
carries
impeach
post-arrest
tion to
a defendant with the fact of
silence,
617-18,
However,
see id.
96
2240.5
at
S.Ct.
determined
Court also has
that neither
Fifth
Supreme
use
Amendment nor due
forecloses
of a
process
prosecution
pre-arrest, pre-Miranda
purposes
defendant’s
silence
defendant
impeachment
testify
where the
elects to
trial.
Anderson,
238,
Jenkins
231,
2124,
See
447 U.S.
100 S.Ct.
65
Bolus,
(1980);
accord
86
680
at 844.
L.Ed.2d
case,
directly pertinent
present
More
United
recognized
also has
that a defendant’s
Supreme
States
to,
establish,
bear
and be
silence
relevance
admissible
example,
a criminal
For
proceeding.
other issues
arising
Robinson,
States
108
United
U.S.
S.Ct.
(1988),
Fifth
L.Ed.2d 23
the Court ruled there is no
Amend-
ment
of silence in fair
proscription precluding
raising
response
argumentation.
defense
The case concerned a
Arizona,
4. Miranda v.
384 U.S.
It is of his right a defendant’s exercise may not treat prosecutor of it is guilt; at trial substantive evidence to remain silent as here, that the same to as defendant does quite urge, another from re- prosecutor fairly reasoning prohibit would by adverting of the defendant argument to an sponding in to the defendant may There be some “cost” silence. situation, but we decline to remained silent each having response by prosecutor a fair expand preclude Griffin such as the one. present situations (citations omitted). Robinson, 33-34,108 S.Ct. 864. doctrine, see, fair
By applying Robinson’s 553 Pa. e.g., Copenhefer, (1998), I court’s rejected the DiNicola implicitly our court permissible purpose is the sole impeachment conclusion that referenced silence be pre-arrest for which a defendant’s of fair purposes in a criminal trial. For by the Commonwealth subject admissibility primarily response, presently prejudicial of versus probative trial court’s assessment value all other objection, as is case -with appropriate effect at trial. Pa.R.E. 403.6 evidence adduced See (the Further, the Court directed to the facts before we read Bolus as in im- permissibility of the Commonwealth's use Here, Robinson, trial strategy counsel’s was case, question government’s preparation particularly its investigating trooper’s pursuit potentially terms exculpatory trooper’s investigation evidence. Since the reject obviously by Appellee’s request limited decision interview, for an find that the elicitation we Commonwealth’s fair testimony regarding this fact constituted trooper’s manner refer response, prosecution’s the same as did ence to the defendant’s silence in Robinson. As post-arrest Amendment, this line of did not the Fifth questioning violate trial counsel not be deemed for failure to raise will ineffective Therefore, objection. it error to relief on the award claim.7 portion first of the ineffectiveness *11 portion The resolution of the second of the ineffectiveness Here, claim of error argument raises different concerns. that trial opened counsel door the inevitable revela- tion that had Fifth Appellee right asserted his Amendment remain silent. our reference to silence
Despite trooper’s decision in the circumstances of this case did not violate the Fifth Amendment, that trial allegation consideration the distinct in opening trooper’s testimony counsel erred the door for the Nonetheless, is not foreclosed. this claim of ineffectiveness can be to a consider- definitively by going directly resolved must, ation of prejudice. Travaglia, 357. We therefore, if met of demon- Appellee determine his burden action, strating probability reasonable but for counsel’s proceedings the result of the would have been different. Bolus, not, peachment), Appellee 680 A.2d at but as have see would it, foreclosing references to other circumstances they may in which be relevant. Appellee 7. We note that claims that the Commonwealth waived the opportunity challenge findings arguable prejudice merit and appeal on this claim failure to in DiNicola I. We its decision reject argument. When the this this Court revisited issue assumptions through corrected its erroneous in this case its decision clean; II, thus, wiped inapplicable DiNicola the slate was waiver is this situation. Appellee prejudice by asserts this as the revelation invoca- tion of silence in the face of an activity accusation criminal could be read as a tacit admission of guilt. Commonwealth v. Turner, (1982). 499 Pa. 454 A.2d Appellee asserts that the he suffered by this admission out- weighed benefit any potential derived from this pursuing strategy. herein, explained
As the mere revelation of silence prejudice. does establish innate See also Commonwealth (1998) (“Even Pa. Whitney, 550 explicit reference to silence is not reversible error where it in a likely occurs context not to suggest silence is the equivalent of tacit admission of guilt”).8 value,
Taken at face the revelation of silence in this case was limited to its context. The trooper revealed the exchange a denial wrongdoing wherein was immediate, engage decision to in further discussion situation, with the declined. In trooper was this the reference to silence and its Fifth Amendment source was it circumspect; in any not used fashion that likely to burden Appel lee’s Fifth Amendment or to create an inference of an guilt. admission of whole,
Reviewing the record as a compelled we are conclude that has failed to establish that the outcome of this case would have been different absent the decision of *12 trial Thus, counsel that the to opened testimony. door this Appellee was not entitled to relief on the second claim of ineffectiveness.
8. The topic eloquently elusive nature of silence was a discussed the Dravecz, late Justice Michael Musmanno in Commonwealth v. 424 Pa. (1967), rejected 227 A.2d wherein this court the tacit admission rule: may wrongly It be desirable and dramatic person for the accused to everybody responds shout: "I am innocent!" but spontaneously startling
to stimuli. The accusation be so that the accused is speechlessness. persons benumbed into There are so sensitive and easily, they tongue hurt so that swallow their in the face of over- whelming injustice. reversed, and Court is
The order reinstated. of sentence is judgment in the decision of participate LAMB did not Former Justice case. this a concurring opinion. files
Justice CASTILLE concurring opinion. files a SAYLOR Justice dissenting opinion. concurring files Justice NEWMAN concurring. CASTILLE Justice that entirety. agree in its I join Majority Opinion the of counsel effec- presumption failed to overcome appellee that he finding and that the courts below erred tiveness further separately in his claim. I write the merit proved trial references to a defendant’s law on governing address assessing standard for claims proper as as the silence well in such instances. ineffectiveness counsel obviously opened of action in this case course Counsel’s Fetz- testimony concerning Trooper proper responsive door to and his counsel. appellee interaction with ner’s But, not offered order allow testimony had remained silent argue appellee prosecution jury or that the should his silence face of an accusation view Rather, elicited for the testimony incriminating. counsel’s rebutting defense purpose distinct and narrow automatically had trooper suggestion exclusively upon accusation and focused credited victim’s complete conducting as the without appellee perpetrator, of, and a successful potentially not unheard investigation—a often, not encounter since courts do appellate defense which are not acquittals appealable. offered for which evidence is purpose
A consideration of
thus, evidence which
evaluating
propriety;
its
is essential
be
purpose may
if introduced for one
prohibited
be
might
See,
when introduced for another.
relevant and admissible
1139, 1152
Spotz,
562 Pa.
e.g.,
(2000).
a defendant
fact that evidence reveals that
The mere
*13
investigation
does
during
speak
police
not to
decided
burden, or
being proffered
that the evidence is
not mean
burden,
self-incrimination
right against
the
ineluctably acts to
Constitution;
Miranda1
prophylactic
in the
or the
enshrined
or
pre-trial stage;
in the
but
post-custody
to silence
right
here,
constitu
even,
yet-to-be-recognized
is advanced
some
the
one’s interactions with
to be silent
all of
right
tional
can never be made.2
that reference to that silence
police, so
case,
that
argue
did
In this
Commonwealth
to decline the
decision
trooper’s testimony
appellee’s
a tacit admis-
should be deemed
trooper’s
request
interview
make.
yet
had
trooper
sion of
to an accusation
guilt
for some
the evidence
proffer
Nor did the Commonwealth
of the constitu-
burden the exercise
other reason which would
Rather,
Majority
silent.
as the
correct-
right
tional
to remain
notes,
employed
introduced and
ly
the Commonwealth
purpose
rebutting
for the distinct and sole
evidence
investigation
was biased
suggestion
trooper’s
argued
never
incomplete.
prosecutor
tacitly
to the
for an
appellee’s response
request
interview
jurors
court
suggested
guilt;
charge
nor did the trial
In
purpose.
could consider the
for such a
they
evidence
short,
disputed
in the introduction or use of the
nothing
triggers
evidence in this case
the constitutional concerns which
of those references to
prohibition
pre-trial
have led
silence
burden the exercise of one’s con-
impermissibly
which
Arizona,
436,
1602,
1. Miranda v.
384 U.S.
86 S.Ct.
Of the fact that references to silence are prohibited by automatically not the Constitution does not open render it reasonable for counsel to the door to evidence dangers of such silence. There are more at trial than consti- However, it apparent responsive tutional ones. that the evidence counsel invited here not In addition prejudicial. was pre-arrest phase to the fact that this evidence concerned the purpose burdening appel- and was not introduced for the silent, lee’s the in fact did not right remain evidence admission, establish a tacit nor did it trigger otherwise constitutional concerns in the law powered change which 49 L.Ed.2d represented by Doyle, U.S. S.Ct. 91, and its to the progeny. Appellee respond trooper’s did silence, to an infer- request stony giving interview with rise Instead, guilt. ence of he that he trooper advised wished lawyer to consult with a before him. speaking with lawyer contacted and “that he had consequently police relayed spoke[n] these and that [appellee] regarding allegations, with he [appellee] adamantly they denied had occurred.” (not point Counsel also advised that he no his appellee) saw statement, giving already client a since “he denied the police ... allegations just, and it it be redundant would would Thus, appellee’s hindsight second-guessing information.” counsel in this case a the door strategy opened involves which that, jury learning far from “silent” remaining thereby admitting face of a criminal accusation and impliedly suggestion by appellee challenged 3. There is no here that the evidence might burdened the to remain silent other than to the extent it be deemed a tacit admission. accusation, it, appellee effectively strongly and denied through albeit counsel.4 if it
Accordingly, jury even were assumed that must considered the for a other than purpose have evidence it purpose narrow there actually proffered, which is no for a assumption jury basis further that the must have con- appellee tacitly cluded admitted his guilt dealings police. jury speculation, with If the prone record at provided speculating trial best basis for cooperated police but on appellee investigation, his own ie., terms, he speak police through elected to his lawyer, trial; just as criminal routinely unequivocally defendants do at accusation; vehemently denied declined to speak further. Because the here of an explicit heard evidence *15 admission, view, guilt my denial of and not a tacit in the trial clearly court the first was correct time around when it found that the claim of counsel ineffectiveness fails. Since counsel not do did what he was accused of he did not doing—ie., open door to of prejudicial evidence in the form a tacit admis- claim sion—the of ineffectiveness fails of irrespective counsel’s subjective reasons for questioning trooper.
The mistake by made in this case of consisted its as misapprehending banning federal law all silence, to pre-arrest references for the except single circum- stance where that “is probative of defendant’s credibility unduly and the defendant will not be prejudiced by DiNicola, 966, its admission.” Commonwealth v. 797 A.2d 971 banc). (en (Pa.Super.2002) As the Majority Opinion aptly notes, (“the 559-61, this is not atOp. the law. A.2d at 335 866 Supreme United States Court has also recognized that a to, bear defendant’s silence relevance and be admissible establish, arising other issues in a criminal proceeding;” doctrine). as an fair citing, example, the Throughout the majority Pennsylvania’s legal venerable history, or implied relevant tacit admissions were admissible appellee speak through lawyer 4. That elected to does not render this any applicable employing tacit admission scenario more than lawyer at trial where a defendant has an actual constitutional counsel. 568 trial, tacit admission including criminal trials where the
at the operation This Court described by made defendant. evidentiary this rule as follows: that, a state- The rule evidence is well established when and of a hearing person ment made presence for a denial incriminating naturally character calls by or contradicted the accused al- challenged but is liberty speak, he has state- though opportunity deny and the his failure to it are admissible in ment fact of of the charges as an admission the truth implied evidence thus made. Vallone, 889, Pa. A.2d v. 347 32 890
Commonwealth Dravecz, (1943), 424 overruled in part (1967). the general 906 also Pa. This was al, Strong, rule followed the United States. John W. et (5th 1999). Evidence, § on ed. basis McCormick grounded experience tacit admissions is in human permitting trials trials: and was the same in criminal civil “as upon assumption admission is based litigation, civil persons usually deny nature is such that innocent will human Evidence, § supra false accusations.” McCormick Cull, Pa. 569. See also Commonwealth J.) (“The (1995) Castille, (plurality opinion by 481 n. 5 be in the age-long of this rule is to justification sought ordinarily innocent person of mankind will experience him, and repel against false accusations that a spontaneously *16 guilt. do so some of failure to is therefore indication Its credibility force is not from derived probative it.”) but from silence of the in to accuser accused Vallone, supra). (citing called
Although some courts and commentators have into powers about human assumption nature which question rule, cases,5 admission and in criminal particularly the tacit of tacit is still in permitted Pennsylva evidence admissions narrow nia—except single circumstance where such and might introduction use burden the constitutional to 569; Dravecz, Evidence, supra § 5. See McConvick 161 227 at at A.2d
569 Coccioletti, 103, 425 Pa. v. 493 silent. Commonwealth remain free (1981) made while 387, admissions (“implied admissible”); are still present, no police with custody, from 254, Schmidt, 265-66 452 Pa. v. Commonwealth J.) (1973) Pomeroy, (collecting opinion by (plurality & n. Cull, a tacit cases). whom supra. party against The Accord course, the inference offered, dispute is free to admission is indirectly through or directly trial that results either instructions. improp-
Thus, deriving alleged to claims from approach monolithic—it must silence cannot be pre-trial er references to to the histor- exception this recent upon focus instead whether As to the situation at issue. admissibility applies ic rule reveals, interactions suspect’s not all references to a this case accusation, in criminal other- acquiescence police imply silent, or other- right to remain burden the constitutional wise It to all references wrong the accused. is view wise the con- they automatically trigger as if pre-trial its Doyle progeny. powered cerns which controlling failing appreciate history Court erred in this area of law. subtleties merit, ineffective lacking arguable appellee’s
In
addition
for the
claim fails as a matter of law
assistance of counsel
by Majori
ultimately
dispositive
reason
deemed
narrower
i.e., he has not demonstrated
ty Opinion,
Strickland/Pierce
Clark,
that,
am aware
Commonwealth
prejudice.6
(1993)—a
claim of
involving
Pa.
less error standard and the which is prejudice Id. at 158.7 The ineffective assistance of counsel. prove reject an “innate Majority Opinion explicitly preju is wise instance, Clark because involved a only dice” test this scenario, because post-arrest fundamentally but more of Clark’s broad and vitality unexplained pronouncement is control prejudice obviously wrong given ineffectiveness law, this ling subsequent federal as well as decisions Court Howard, 86, 1300, such as Commonwealth v. A.2d 538 Pa. 645 Williams, (1994), 553, and 566 Pa. 1307-08 517, (2001), the crucial recognized 782 A.2d 524-25 which have Gribble, distinction in the tests. See also Commonwealth v. 647, 471-73, 2952611, 580 Pa. 674-78, 455, 863 A.2d 2004 WL (2004). at *14-15 the Clark Court addition,
In
recognized
it is notable that
Pierce,
153,
973,
515 Pa.
provided
governing
noting
prejudice
It is worth
that this Court's conclusion of innate
arising
rights
from
to the
of Miranda
was based
references
exercise
upon assumption,
that,
empirical
rather than
evidence.
I am concerned
continuing
rely upon
strayed
assumption,
mere
we have
this
judging.
assumption
from the federal standard and the task of
1972,
years
dates to
when the Miranda decision was but six
old,
non-controlling
upon a
decision which
and was based
Circuit Court
was decided even nearer
time to Miranda. See Commonwealth
Haideman,
(1972) ("
'We would be
449 Pa.
recognize
laymen
naive if we failed to
that most
view an assertion of the
")
privilege
badge
guilt.'
(quoting
Fifth
Walker v.
Amendment
as
States,
(5th Cir.1968)).
recency
United
404 F.2d
Given the
revolutionary
upon police practice
the Miranda decision and its
effect
procedure, perhaps
assump-
and criminal
there was a basis for such
But,
day
age,
jurisprudence in
and
tion-based
1968 and 1972.
in this
accepting
assumption arising
the naiveté consists in
that the old
from
regard,
very
validity.
In
it
newness of Miranda should retain
this
why
Supreme
recently
notable that one of the reasons
the U.S.
precisely
declined to
or overrule
because
reconsider
Miranda was
police practice
point
"Miranda has become embedded in routine
warnings
part
where the
have become
of our national culture.” Dicker-
2326, 2336,
States,
son v. United
530 U.S.
120 S.Ct.
(2000) (citation omitted).
familiarity
L.Ed.2d 405
Given the national
incantation,
nightly examples
with the
on television and in
Miranda
rights,
suspects invoking,
invoking,
it
movies of
or not
their Miranda
assume,
determinative,
unthinkingly
defies common sense to
and deem
rights
laypeople
that "most''
would view an exercise of constitutional
badge
guilt.
jettison
antiquated assumption
I would
this
judging
on their
return to
cases
merits.
*18
of
assessing
the context
ineffective
prejudice
standard
Pierce,
course,
Finally,
emphasize
today
write
issue
*19
3,
Majority op.
one of federal
at 559 n.
866
at
law. See
A.2d
Pennsylvania
334 n. 3. The
constitutional
test
counsel
is the same as the federal
test—
ineffectiveness
Strickland
albeit
further refíne the Strickland
performance
preju-
we
a three-part
inquiry
arguable
dice
into
merit and
approach
objective
(performance compo-
absence of
reasonable basis
Bomar,
nent), and
v.
573 Pa.
prejudice. E.g., Commonwealth
831,
(2003);
Bond,
426, 826
855 & n. 19
Commonwealth v.
33,
Pierce,
588,
(2002);
41-42
I
swpra.
572 Pa.
819 A.2d
think
to make
that
particularly important
appellee’s
it
is
clear
Strickland/Doyle
only.
issue concerns federal law
This Court
Pennsylvania
has
to reach beyond
invoked
Constitution
Supreme
extending
temporal coverage
the U.S.
Court
See,
Turner,
v.
Doyle proscription.
e.g., Commonwealth
(1982)
579,
537,
499 Pa.
454 A.2d
539
Fletcher v.
(rejecting
Weir,
603,
(1982)
1309,
455
102 S.Ct.
Justice concurring. SAYLOR Newman, join Like Madame of the portion Justice the fair doctrine under majority’s opinion applying
573 Robinson, 108 S.Ct. v. U.S. United States (1988). posi- in line Justice Newman’s Also L.Ed.2d claim of ineffective assis- tion, however, Appellee’s regards as the disclosure to the implicating counsel for tance of his trial efforts cooperate police did not jury him, I differ against respectfully accusation investigate K.H.’s of the claim on majority’s dispose decision to with the no result suffered basis that the majority’s analy- this I believe point, disclosure. On to the central role of recognition sufficient give sis does trial, of the absence of direct credibility light of criminal conduct on K.H.’s accusation support evidence Furthermore, majority prejudice analysis, in its part. line long consideration to the of this Court’s express affords no of a impact that disclosure recognizing potential decisions privilege or assertion of criminal defendant’s silence upon face of accusation or have questioning See, guilt e.g., determination of versus innocence. Common (1993) Clark, 579, 587, 533 Pa. 626 A.2d 157-58 wealth v. post- references to a defendant’s (indicating improper innately prejudicial); arrest silence are (1982) (“The Turner, 579, 583, 499 Pa. 454 A.2d view strong disposition part of this that there exists a on the of the Fifth Amendment lay jurors to view exercise established.”); guilt as an admission of Com privilege well Haideman, 367, 371, 449 Pa. monwealth *20 (1972) (“We recognize would be naive if failed to that most we laymen an assertion of the Fifth Amendment as privilege view States, guilt.”) of v. United 404 F.2d badge (quoting Walker (5th Cir.1968)).1 900 580, 125, State, (2000) Snyder v. ("Many 361 Md. 762 A.2d 133 Accord expressed of our sister states that have considered this issue have their probative distrust of evidence of silence as of a consciousness high guilt, noting inherently probative potential low value and of its its Indeed, cases). (collecting prejudice.”) for unfair a number of states evidentiary presume potential that the have crafted rules that outweighs prejudice probative inherent such evidence its worth See, e.g., People Conyers, absence of unusual circumstances. v. 454, 741, 933, (1981); People N.Y.2d 438 N.Y.S.2d 420 N.E.2d 11, DeGeorge, 13-14 73 N.Y.2d 543 N.Y.S.2d 541 N.E.2d (1989). position regarding I therefore tend toward Appellee’s
While in the prong inquiry, the ineffectiveness case, difficulty the I with his present posture greater have strategy case in terms of the merit and reasonable arguable requirements. attacking police that the recognize strategy counsel’s instance, first as it
investigation
questionable,
the
was
evidence
opportunities
clear that the officer’s
to uncover direct
(since
limited
criminal conduct were
concerning
alleged
the officer
only eyewitnesses);
and K.H. were
range
had
of staff members and discerned
interviewed
alleged
in a
position
perpetrated
have
K.H.;
criminal act at the time and
the location described
Appellee’s
the officer had uncovered circumstantial evidence of
reached or exceeded the boundaries of a
previously having
K.H.; and
unable to
professional relationship with
counsel was
that the officer
point
any particular exculpatory
information
Thus, there
downsides to
apparent
should have learned.
were
in terms of
fair
strategy
drawing
Commonwealth’s
in the
cooperate
reference to
failure to
already developed
before the
investigation, repetition
evidence,
negative
fostering
potentially
be associated with assertive examination
impressions
may
trial,
of a
and in
one
carries the
particular,
witness
who
hand,
authority of the state.
the other
in the arena of
On
litigation, occasionally
aggressive
adversarial
such
tactics will
contem-
Additionally,
apparently
bear fruit.
the defense
concerning prejudice
place
many
In
of a discussion of the
decisions
arising
privilege
from references to a defendant’s silence or assertion of
questioning,
majority
in the face of accusation or
diverts its atten-
Dravecz,
passage
424 Pa.
227 A.2d
tion to a
from Commonwealth
(1967),
probative
that addresses the low
value associated
Majority
silence in the face of an accusation of criminal conduct. See
Opinion
pertains
at 571 n.
575 plated Appellee would from testify trial,2 the outset of the the strategy did not appear to conflict with the design overall of the defense. demonstrates, minimum,
The above at a some of the mixed in play considerations in the evaluation of trial strategy. However, a more concrete from the weighing, appellate per- spective, strategy, as it relates to the consequence of counsel’s implicating Commonwealth’s fair-response refer- ence to Appellee’s failure to cooperate police investiga- tion, hampered is by absence of properly focused findings and conclusions from the trial court. This deficit is a result of proceedings this case having strayed afield from the essential task of weighing the of trial quality counsel’s strate- gy of attacking police investigation against the quantum of prejudice inherent in the responsive revelation to the jury of the fact of Appellee’s pre-arrest silence. outset,
At the the trial court grounded its first opinion incorrect legal conclusion that the simply case did not involve the kinds of concerns associated with references to pre-arrest Thus, silence.3 court, the trial instance, in the first failed to produce essential and directed factual findings and legal con clusions, grounded in (indeed, an evidentiary record there appears to be no record at initial, all of the post-sentence hearing). On appellate review, the relevant issue was further clouded the Superior panel’s mistaken belief that N.T., 19, 1998, 2. See Nov. (reflecting at 291 explanation trial counsel's it that was present essential for his version of the only events that occurred presence). in his and K.H.’s explicitly reject I would Although this conclusion. there be permutations in which revelation of a defendant’s decision to decline an may implicate degrees interview potential prejudice, lesser State cf. Purvey, (Md.1999) Md.App. (holding that a more, defendant's refusal to reduce a writing, statement to without silent, right not an invocation of his or her to remain thus the admis sion of such silence in to a subsequent detective's observation error), here, denial, is not in general in addition to the fact of a investigating trooper Appellee's related decision to consult with his counsel, specific counsel's admonition that would invoke his Fifth any Amendment to remain silent at interview. Combs Cf. Coyle, (6th Cir.2000) 205 F.3d (analyzing a defendant's police my statement to lawyer" "talk to as an instance of silence). *22 trial. testify did not at his See Commonwealth (“DiNicola I”).
DiNicola, (Pa.Super.2000) 751 202 Moreover, along I did not consider the matter the DiNicola Robinson, the fair doctrine under U.S. at response lines of thus, at did not the interrela- recognize 108 S.Ct. and initial strategy questioning between trial counsel’s tionship and trooper’s investigation of the the scope arresting the objection of an cross-exami- viability Commonwealth’s panel errantly The result was that the nation of officer. strategy its of trial counsel’s initial choice analysis bifurcated object responsive to cross-examination. and his later failure to the Court significant Superior This is because particularly reasonable, choice see DiNi- strategy held that initial was I, Appellee’s A.2d at a conclusion which fatal to cola not be in the claim and could disturbed course present which However, in the remand trial court. proceedings of the inquiry of line of panel’s approval Court counsel’s Superior aby strategy generalized reasonable was via a and supported conelusory potential Appellee’s reference to its to inno- prove id., cence, of the in terms of its strategy see without evaluation result, or of its effect on availabil- achieving likelihood Appellee’s to objection responsive of an references ity (about sidebar). trial counsel was warned silence which incorrect, proscription DiNicola I’s blanket Combined with does any to silence where a defendant against reference I, A.2d at errors had the testify, see DiNicola these remand, of the proceedings of the focus misdirecting effect merit, that, opinion assessing arguable a trial court again, so factual prejudice proper reasonable strategy, Indeed, in of the produced. light context was not trial legal namely, DiNicola understanding holding, court’s of Fs pre-arrest silence were never admissible under references circumstances, matter for relatively it any simple objected to conclude that counsel should court have trooper impli- cross-examination which Commonwealth’s silence. Appellee’s cated DiNicola,
While (“DiNicola II"), recognize did A.2d 966 (Pa.Super.2002) error, banc also over- panel most the en patent DiNicola I’s and therefore fair doctrine looked the Robinson in DiNi- manner of review fashioned the bifurcated accepted claim I, of the ineffectiveness from discussion refraining cola trial of the pursuit of the selection and overall terms investigation, light strategy attacking police Moreover, in the of that issue. prior panel’s disposition court, the DiNi- from the trial opinion absence of a sufficient respects. in material relegated speculation II court cola noted, the correctly has as the Commonwealth example, For finding DiNicola II’s reasoning supporting (namely, that the disclosure *23 trial), as of unsupported silent at remaining his
impeded no that the defense In this there is evidence regard, record. been different had the disclosure strategy any trial would have made; indeed, noted, to the explained as trial counsel not been his present that it essential for version in See only presence. that occurred K.H.’s and events note 2. supra undertake, I not from landscape, attempt
In this would case, in for the first time this appellate perspective merit, reasonable concerning arguable merits determination context, particularly in their as strategy, proper or be judgments may is bound in necessary inquiry up that are not on the face of by impressions apparent affected Grant, generally the written record. See (2002) 48, 66, (observing Pa. that “the in the claims related to position trial court is best review in the as that is the court trial counsel’s error first instance deficient allegedly perform- that observed first hand counsel’s ance”). Thus, merits, I for this case to be decided on the Madame that it be agree would with Justice Newman would it to the trial court for the most to be returned appropriate first instance. necessary assessment however, that further con- Appellee, presents argument unnecessary, contending sideration of the merits of his claim is appeal, should be to resolve the principles applied waiver one, I a final and the panel’s since the DiNicola order was determina- appeal panel’s Commonwealth did not adverse arguments. tion to several of its core respect Rule of Pennsylvania Appel is correct that under 1112(b), an order of the Court re late Procedure a final part, whole or constitutes manding appeal, this subject order to such review as be allowed discretionary under its review See Pa.R.A.P. procedures. 1112(b). Further, court appellate at least one intermediate supports Appellee’s arguments decision view that resolved to a in a remand of an contrary litigant’s position opinion if the intermediate court will be deemed waived appellate litigant appeal prior does not seek allowance of to effectuation (or AT & successfully pursue reargument). of the remand See (Pa.Cmwlth.2003). T v. (DiNapoli), WCAB Moreover, to this party appeal expressly no advocates contrary position.4
However,
view,
panel
it is
that the en banc
significant, my
in DiNicola II
DiNicola I’s merits determinations
supplanted
unfavorably
that had been resolved
arguments
concerns
Commonwealth,
to the
apparent application
excep
exception
tional circumstances
of the case doctrine.5
law
Additionally,
legal questions
pertain
separate
involved
of a
single
assessing
but
interrelated facets
test for
circumstances,
of counsel.6 In such
stewardship
would
*24
treat
issues
based on its
Commonwealth’s
as waived
following
decision to accede to the remand
DiNicola I.7
reply
Appellee's
4. The
did not file a
brief
answer
argument.
waiver
doctrine, upon
appeal,
Under
the case
a
an
5.
law of
second
legal
previous
appellate
question
court
not alter
resolution of a
Starr,
ly
by
appellate
decided
the same
court. See Commonwealth v.
564, 574,
1326,
(1995).
extraordinary
Pa.
The
541
664
1331
however,
exception
implicated,
prior
circumstances
is
where the
hold
injustice
ing
clearly
and
if
was
erroneous
would create a manifest
575-76,
followed. See id. at
579
waiver,
In advancing
however,
theory
Appellee over-
looks that he also
suffered material adverse
determination
DiNicola I that he also did
appeal—the
not
conclusion that
trial counsel’s attack on the police investigation
grounded
judgment
any
valid
appearing
appropriate
for
reason
as of record in
circumstances,
requiring
judgment
without
of the
winner strict adher
principles
presentation
ence
preservation.
of issue
generally
See
Commonwealth,
Bd.,
Borough
McAdoo
v.
Pa. Labor Relations
506 Pa.
422,
5,
761,
(1984);
n.
428-29
485 A.2d
764 n. 5
E.J. McAleer& Co. v.
Products, Inc.,
610,
4,
441,
Iceland
475 Pa.
613 n.
381 A.2d
443 n. 4
(1977);
Co.,
139, 145-46,
Coplay
Mfg.
Hader v.
Cement
410 Pa.
189 A.2d
271,
(1963);
110, 115,
899,
Elgart,
274
Sherwood v.
383 Pa.
117 A.2d
(1955). Significantly,
901
right-for-any-reason
the focus of the
doctrine
Pennsylvania
upholding
judgment
in
nal,
on
fact-finding
of the
tribu
See,
McAleer,
not that
appellate
of the intermediate
e.g.,
court.
E.J.
4,
("We
course,
475 Pa. at
may,
613 n.
justice. e.g., Co., Ecological Rights Lumber Pacific (9th Cir.2000) ("Where F.3d precisely the same result could record, have grounds been reached on apparent other sending from the the case back to the district court is wasteful both for the courts and for Robeson, litigants."); 403 A.2d at right-for-any-reason 1223. The is, course, one, prudential doctrine applied and must be with due regard for interrelationship fairness and its prevailing pre- with other *25 cepts appellate review. I, A.2d at 200. DiNicola strategy. See in a reasonable to treat Moreover, substantially better reasons there are of further regard in this as waiver omission Appellee’s I. of that issue in DiNicola of the resolution review appellate any instance, offering bore the burden of Appellee In the first a full presenting into and to his claim evidence facts essential I, in see DiNicola Superior record to the Court complete and 696, 5, 236 n. 615 A.2d 532 Pa. Chopak, Commonwealth record, he (1992),which, as of for reasons undisclosed n. 5 n. 2. at 332 & Since Majority Opinion to do. See failed effect to the argument no evidence or presented Court develop opportunity denied the that the material deficit proceedings, post-sentence in the evidence should have panel the DiNicola in the record discerned and should not appeal initial fatal to been deemed critically, that ensued. Just as in the remand have resulted DiNicola reargument appeal or challenge by way failing strategy attacking trial counsel’s I’s conclusion reasonable, to a acceded investigation was police that, result by design, would tailored remand narrowly findings in terms of lacking again that was opinion trial court In claim for relief. to success on his conclusions essential underlying reasons primary I note that one regard, this court is appellate that the doctrine is to ensure the waiver reasoning. See of the trial court’s the benefit provided with Metz, Pa. 346 n. (1993).8 urges upon himself this Finally, Appellee 127 n. 3 concerning waiver would position the theoretical Court to material part pertaining on his argument further foreclose in his strategy of reasonable the central issue aspects this is consis- police investigation, attack on the counsel’s pertains argument it majority the waiver addresses 8. The by concluding the DiNicola II’s cor- arguments Commonwealth's “wiped the clean” assumptions slate DiNicola I’s erroneous rection of at 336 n. 7. Majority Opinion at 562 n. waiver. as concerns however, corrected assumptions that were Significantly, the erroneous position, go.to Appellee's any way the deficiencies not in did never-altered) (and finding of Superior initial particular, Court's attacking police part strategy of counsel reasonable adequate record Appellee’s failure to assure that investigation, and in the first instance. presented *26 the inter by as established prevailing law presently tent with of a definitive courts and in the absence appellate mediate by this Court.9 ruling circumstances, concern arguments I deem Appellee’s
In the attack on strategic of counsel’s the reasonableness his trial ing to appeal his failure investigation waived as of police in this This regard.10 determination I’s adverse DiNicola further to the deferring any of review the effect would have per should be time stage, which post-conviction of counsel claims of ineffectiveness develop any mitted to finding initial of reasonable to the Court’s acceding Superior to the record present adequate and in to strategy, failing Further, such a decision in the first instance. Court Superior litigants who expectation this Court’s highlight would ensure that must judgment suffered an adverse have main are thereafter appellate review predicates essential tained, appellate to the subsequent or frame their submissions Particularly question presented since both sides of the are concerning categorical ruling parties, refrain from a I would concerning obligation party suffering an determination one of a adverse argument appellate to file a particular line in the intermediate courts of preserve opportunity for petition appeal in order to for allowance that, regard, In this I note on the one further review of issue. decision, hand, interlocutory hallmarks of an a remand directive bears adjudicatory production being level for the matter is returned to the as record) (or any supplemental predicate appellate further of a record issues, light potential interdependence In and since at review. issue material to the outcome of the case remains to be least one decided, efficiency against requiring and militate concerns fairness hand, unnecessary appeal. potentially interim and On the other there instances, here, appellate in which the intermediate court’s are arguments may integrally scope of of issues and affect the resolution remand, any proceedings militating requiring thus favor of prior the remand. contest to occur to effectuation of pursued recognize that has not this line 10. While I the Commonwealth brief, argumentation review of waiver in its believe that traditional accord, principles, by this Court of its own available to be exercised where the permit the Court to look down on the record determine awry, judgment- proceedings went and if fault is attributable to the Here, loser, uphold supra the verdict. See note 7. I find such analysis grounded approach greatly preferable to a merits that is to be long-standing incomplete sync with on an record and out of this Court's may give understanding jurors their of the effect that deliberations privilege in evidence of a defendant's silence or assertion of the face questioning. accusation or courts challenge to include a to the manner which their ability to ensure these essential predicates impeded.
Justice NEWMAN concurring dissenting.
I concur in the
set forth
in the
significant principle
today
Majority
that the
silence of
Opinion
properly admitted as “fair
response”
questioning by
trial
investigating Trooper.
counsel of the
se rule of
per
DiNicola,
Commonwealth v.
(DiNicola 7),
can
(Pa.Super.2000)
pre-arrest silence
*27
be considered
a
for the
by jury only
purpose
impeaching
of
testifying
credibility, imposes
defendant’s
a limit
without
purpose.
Majority
The
that
Opinion correctly acknowledges
Robinson,
25, 32, 108
in United
States
U.S.
S.Ct.
(1988),
L.Ed.2d 23
the United States Supreme
recog
Court
nized that a defendant’s silence
be
to establish
admissible
impeachment
issues
addition to
that arise in a criminal
559-61,
proceeding. Majority Opinion at
The
majority
*28
scheduled; however, the
record
original
presented to this
court, contains no transcript
evidentiary
of an
at
hearing
this
or
other
stage
any
reference that would indicate
or
whether
it
actually
555-56,
not was
conducted.”
at
Majority Opinion
(footnote omitted).
Following
appeal,
Superior
the first
Court panel
disagreed
opined
and
that “the
prejudice
resulting
from
DiNicola
Appellee’s
reference
silence was substantial.”
I,
added). However,
751 A.2d at
(emphasis
the Superior
the
inadequate
Court “deemed
record
to assess whether coun-
object”
and remanded
failing
sel had a reasonable basis
question. Majority
limited to this
evidentiary hearing
for an
556-58,
counsel
hearing,
This Court (1994), strong disposition that “there exists a 640 A.2d the Fifth jurors to view the exercise of part lay on the The ratio guilt.... as an admission of privilege Amendment jurors charged an innocent with expect person nale is at 404-405.1 deny guilt.” crime to Id. at the judice, interviewing employees
In the case sub after interview, an indicat- Trooper called facility, regard- there made him ing allegations against had been him, to meet ing employment. Appellee declined with Later, attorney. that he to consult his saying wanted him that attorney Trooper, telling contacted the conduct, that, but on advice of any inappropriate denied counsel, Fifth right assert his Amendment to remain would at Whether or not any police appropriate silent interview. expected their I believe that the have part, might well person deny involving innocent involvement the offenses victim, rather than to his Fifth Amendment the child assert silent, to remain and that evidence of refusal Appellee’s deny allegations and failure to speak Trooper in that conversation could him. The prejudiced well have I majority recognizes panel that the DiNicola found from prejudice resulting “the reference to 556-58, at Majority Opinion was substantial.” silence, analysis post-arrest Although involved this Court’s Crews prejudicial that our in which believe delineation circumstances germane can inferences be drawn from silence is matter sub judice. *30 However, “conclusory.” majority finding labels this I, DiNicola trial court deter- Id. On following remand had prongs inquiry mined that all three of the ineffectiveness In the DiNicola trial. been met and a new awarded II that the again found appeal, Superior Court pre-arrest from the reference to the silence was resulting majority respectfully posit substantial. I judice sub matter has to an conclusion with leapt unsupported had a its the revelation of the silence determination at face impact limited when taken value. at issue and Appellee’s very given
Because freedom is time, to this many prior mistakes of law and fact that occurred I with evidentiary hearing believe that a new warranted claim. At such second ineffectiveness respect Appellee’s of the three prove have to each hearing, Appellee would demonstrating of counsel prongs of the test for ineffectiveness (1) (2) merit; coun- that: claim has underlying arguable his scope question Trooper respect sel’s decision to de- did not have some reasonable basis investigation (3) interests; to effectuate signed Smith, counsel’s action. prejudiced by (1994). Pa. the extension of the fair fully
While concur with silence, this does not doctrine to allow admission of Appel- to remand this matter to address dispose of need ineffective for alleging lee’s claim that counsel was remaining his pre- the door in the first to the disclosure of opening place silence. arrest notes raised two claims of ineffective assistance of counsel. The first one is that trial counsel by objecting testimony regarding erred pre-arrest pre-arrest silence. Because silence is admissible as fair the failure of response, object trial counsel to to its admission does not constitute of counsel. ineffective assistance I agree majority’s with the resolution of this first issue. My regards majority’s disposition Appellee’s dissent claim, posits by opening second which that counsel erred for the to introduce evidence of his prosecution pre- door The that “this claim of ineffec- majority opines arrest silence. definitively by going directly tiveness can be resolved to a 561-63, prejudice.” Majority Opinion consideration (internal omitted). I respectfully disagree A.2d at 336 citation this can review the issue of this record, I believe that this matter must be remanded to remand, the trial court. trial On court would now have Court, the benefit clear direction from this which finds that fair silence is admissible as and that the object failure of trial counsel to to its admission does not However, constitute ineffective assistance of counsel. the trial court to determine would have whether counsel was ineffective opening the door to the admission. believe this merits, that, claim must be resolved on the contrary to the disposition majority, it is to do this impossible record. existing majority describes the labyrinthine procedural path illustrate, traversed this matter. To filed a post- for, alleging sentence motion ineffectiveness of counsel inter alia, opening door to the testimony revealing pre- result, arrest silence. As a on the hearing matter “[a]