COMMONWEALTH of Pennsylvania, Appellant v. David John LETTAU, Appellee.
986 A.2d 114
Supreme Court of Pennsylvania.
Argued Sept. 15, 2009. Decided Dec. 29, 2009.
986 A.2d 114
Charles Michael Nedz, for David John Lettau.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, GREENSPAN, JJ.
OPINION
Justice GREENSPAN.
In this case, we consider the extent to which evidence of a defendant‘s pre-arrest silence and lack of cooperation with a police investigation can be used against him when he testifies at trial. Because we determine that evidence of the defendant‘s pre-arrest lack of cooperation was properly admitted as rebuttal evidence and any argument as to any other use of such evidence was not properly preserved, we reverse the Superior Court.
In fact, Linda McConnell has no relationship with Lettau, Haffley, or Krieter. McConnell sells dogs, and a customer sent her the check in the mail as a deposit on a puppy. It is unclear how the check came into Haffley‘s or Krieter‘s possession—McConnell never received it. When her customer alerted her that the check had been cashed, McConnell let her know that she had not received the check. At that point, McConnell‘s customer alerted the Pennsylvania State Police that the check had been stolen.
During its case in chief, the Commonwealth called Trooper Ronald Fagley, the investigating officer, to describe his investigation and give brief testimony about conversations he had with Linda McConnell and Lettau during his investigation. Fagley testified that in the course of his investigation he called Lettau and left messages with him, and that Lettau called him back that night. N.T., 4/26/2007, at 70. Fagley said that Lettau told him that he had taken a friend named Sister Linda to the bank to cash a check because she did not have an account there, and that he did not know Sister Linda‘s last
Lettau testified on direct about his visits to Haffley‘s residence and his previous interaction with Haffley and Krieter. Lettau explained that he cashed the check as a favor to Haffley and that he was unaware that the check did not belong to Krieter. He also testified that he gave Fagley all of this information about Haffley and Krieter when Fagley contacted him about the check. N.T., 4/26/2007, at 115.
On cross-examination, the Commonwealth focused on Lettau‘s claim that he had cooperated with the state police investigation. When challenged about his testimony on direct that he had provided the trooper with all of the information he knew about Haffley and Krieter, Lettau insisted that he had relayed this information to police, explaining that he provided the police with contact information for Haffley and Krieter. N.T., 4/26/2007, at 119-21. When the Commonwealth asked Lettau whether he had been asked to come to the police barracks and give a statement, Lettau‘s trial counsel objected based on Lettau‘s right to remain silent. The objection was overruled, and the Commonwealth proceeded to question Lettau extensively as to his level of cooperation with Fagley‘s investigation, eventually eliciting Lettau‘s testimony that he had cooperated with the investigation. N.T., 4/26/2007, at 127.
The Commonwealth then recalled Fagley to rebut Lettau‘s testimony. Fagley testified that Lettau had not been cooperative, had refused to provide relevant information about his bank, Krieter, and his church, and had refused to come to the state police barracks in order to give a statement. N.T., 4/26/2007, at 169; 4/27/2007, at 18-19. Defense counsel again objected to Fagley‘s testimony as to Lettau‘s refusal to come
On appeal, the Superior Court vacated Lettau‘s sentence in a published opinion. Commonwealth v. Lettau, 955 A.2d 360 (Pa.Super.2008). Applying this Court‘s opinions in Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996) and Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005), the Superior Court concluded that the Commonwealth‘s use of Lettau‘s pre-arrest silence was in excess of what this Court has previously sanctioned and was “so pervasive as to impair the jury‘s ability to render a fair and just verdict.” Lettau, 955 A.2d at 363. Judge Popovich dissented, finding that neither Bolus nor DiNicola warranted reversal and focusing on defense counsel‘s failure to object to Trooper Fagley‘s direct testimony.2
This Court granted review in order to determine whether the Superior Court was correct in concluding that the Commonwealth‘s evidence of Lettau‘s pre-arrest dealings with the
Both the
In Commonwealth v. Bolus, supra, this Court heard a challenge to a conviction of receiving stolen property, tampering with evidence, and criminal solicitation. Bolus had a stolen tractor-trailer on his property and, when asked during the police investigation how the tractor-trailer got there, he initially told the police that he had towed the tractor-trailer to his towing lot in order to repair it after it had broken down on the highway and that he was in the process of obtaining title via a mechanic‘s lien. 680 A.2d at 841.
The police found this account difficult to credit, and they seized the tractor-trailer. At that time, they asked Bolus whether he knew the location of the front-end loader, also reported stolen, that the tractor-trailer had been used to transport. Bolus replied that he had no knowledge of the front-end loader‘s whereabouts. The next day, the police
At trial, Bolus testified that he had purchased the front-end loader from an individual named Willie Thomson. He denied that he knew that the front-end loader was stolen and submitted cancelled checks that were written to Willie Thomson. During cross-examination, the prosecutor asked Bolus why he had not mentioned Willie Thomson in his conversations with the police during their investigation. Defense counsel made no objection to this line of questioning. Id. at 842.
Bolus was convicted of receiving stolen property, tampering with physical evidence, and criminal solicitation. On appeal he argued that his trial counsel had been ineffective for failing to object to questions regarding his pre-arrest lack of cooperation with the investigation. This Court denied his claim for relief and applied Jenkins v. Anderson, holding that the
In Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), this Court established that the right to remain silent does not come into existence only when a suspect is induced to remain silent by a Miranda warning: “We do not think that the accused should be protected only where there is a government inducement of the exercise of the right [to remain silent].” 454 A.2d at 540. Bolus established that although a suspect is protected by the right to remain silent prior to being given Miranda warnings, his credibility as a witness may nevertheless be impeached with evidence of his pre-Miranda silence, especially where he testifies that he was vocal and cooperative with the police investigation. Bolus, 680 A.2d at 844 (“We find the reasoning of Jenkins v. Anderson, supra, to be compelling, and hold that when a criminal defendant waives his right to remain silent and testifies at his own trial, neither the United States nor the
In this case, the Superior Court found fault with the extent of the Commonwealth‘s focus on Lettau‘s cooperation or lack thereof with the police investigation, especially during its cross-examination of Lettau and subsequent examination of Fagley: “we find it highly probative, as the level of attention accorded the disparities in the witnesses’ testimony is so disproportionate to the testimony concerning the charged offenses, as to imply to lay jurors that the offense on trial is in fact the defendant‘s failure to cooperate more fully with Trooper Fagley.” Lettau, 955 A.2d at 367. However, there is nothing in Bolus or the case law upon which it rests that serves to limit the cross-examination of a defendant who says one thing to police during an investigation and a different thing while testifying at trial. Simply put, impeachment is proper under these circumstances.6 Similarly, there is no constitutionally-mandated ratio between evidence of the charged offenses and evidence tending to discredit a defendant-witness‘s credibility.
This case is nearly identical to Bolus in that Lettau‘s interactions with the police were inconsistent with the version of events he testified to at trial. Lettau gave testimony both during his direct examination and on cross-examination that
Under Bolus, the Commonwealth must be able to explore the level of the defendant‘s cooperation and whether he provided the information that he claimed he provided. The proverbial door has been opened. Here, Lettau opened the door by claiming that he gave police extensive information to advance their investigation. As a result, the Commonwealth was entitled to present its version of Lettau‘s “cooperation.”
Contrary to the Superior Court‘s reasoning, this Court‘s decision in Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005), lends further support to the trial court‘s rulings in this case. Under DiNicola, when a defendant‘s claimed participation with a police investigation becomes a subject of defense strategy or defense testimony, the Commonwealth is permitted a fair response to the defendant‘s claim. Simply put, the Commonwealth may offer up its own accounting of the investigation and the defendant‘s participation therein. In DiNicola, the defense pursued a strategy of impugning the thoroughness of the investigation conducted by the Commonwealth, and in pursuit of that strategy called an investigating officer to testify, asking him whether he had done anything during his investigation to discern whether the charges against the defendant were unfounded. DiNicola, 866 A.2d at 332. The defense proceeded with this strategy even after a
DiNicola filed a post-sentence motion alleging ineffective assistance of counsel, both for failing to object to the investigating officer‘s reference to his pre-arrest silence and for trial counsel‘s decision to pursue that line of questioning in the first place, since it was likely to end in the admission of testimony revealing DiNicola‘s decision to remain silent during the police investigation. Id. This Court held that his lawyer was not ineffective for failing to object to testimony of pre-arrest silence, since such testimony was properly admitted under the fair response doctrine.7 Id. at 336. As to DiNicola‘s second ineffectiveness claim, this Court rejected it because DiNicola could not establish that he had been prejudiced by having evidence of his pre-arrest silence introduced in order to defend the police investigation. “Taken at face value, the revelation of silence in this case was limited to its context ... [i]n this situation, the reference to silence and its Fifth Amendment source was circumspect; it was not used in any fashion that was likely to burden [DiNicola‘s] Fifth Amendment right
In this case, Lettau testified that he had been “very cooperative” and had provided Fagley with his side of the story, including all the information he had about Paul Haffley and Linda Krieter.8 N.T., 4/26/2007, at 115. The purpose of the Commonwealth‘s cross-examination of Lettau, and its subsequent examination of Fagley, was to show that Lettau had not been truthful in his direct testimony. At no point during its cross-examination of Lettau or its examination of Fagley did the Commonwealth ask the jury to infer that Lettau‘s silence or lack of cooperation was a sign of guilt. On the contrary, the prosecutor‘s questions represented a fair response to a defense tactic of portraying Lettau as cooperative, and they further served as rebuttal evidence that called into question Lettau‘s honesty as a testifying witness. Such impeachment use is clearly allowed under Bolus and such fair response use is clearly allowed under DiNicola. See Bolus, 680 A.2d at 844 (holding prosecutor may impeach a defendant‘s credibility by referring to his pre-arrest silence); DiNicola, 866 A.2d at 336, (holding prosecutor may respond to defense attempts to impugn the thoroughness of the investigation by revealing defendant‘s lack of cooperation with the investigation).9 Therefore, Lettau‘s objections were unfound-
In addition to finding fault with the Commonwealth‘s cross-examination of Lettau and its proffer of Fagley‘s rebuttal testimony, the Superior Court majority criticized the Commonwealth‘s direct examination of Fagley and also noted the prosecutor‘s closing argument, which it characterized as improperly using Lettau‘s pre-arrest silence as demonstrating Lettau‘s guilt.10 Lettau, 955 A.2d at 362. Whether or to what extent Fagley‘s direct testimony and the Commonwealth‘s closing argument could be interpreted as improper use of Lettau‘s pre-arrest silence to establish guilt is irrelevant. Lettau‘s trial counsel never objected to the trooper‘s direct testimony or to the prosecutor‘s closing argument. Thus, the
The dissent also relies on Trooper Fagley‘s direct testimony as the foundation for its conclusion that the Superior Court decision was correct. The dissent suggests that a single statement made by Trooper Fagley on direct “unmistakably introduced into the trial the notion that [Lettau] refused to participate in the police investigation,” which in turn compelled Lettau to “rebut such inference by describing his efforts in answering Trooper Fagley‘s inquiries.”11 Dissenting Opinion at 454, 986 A.2d at 124-25. The dissent concludes that both Bolus and DiNicola precluded the Commonwealth from thereafter fully cross-examining Lettau about his version of events, as such cross-examination somehow constituted an “exploitation” of Lettau‘s pre-arrest conduct. Id. at 454 n. 2, 986 A.2d at 117 n. 2.
Certainly, if Lettau‘s counsel believed that the trooper‘s statement on direct was improper, prejudicial, or objectionable for any reason, he could have raised a challenge. Lettau could have moved to strike the answer; he could have requested a cautionary instruction; he could have sought a mistrial. But, as the dissent recognizes, he pursued none of these options.12
The testimony to which Lettau‘s trial counsel objected was permissible as impeachment evidence and as fair response to Lettau‘s characterization of himself as cooperative with the police investigation.
For the foregoing reasons, we reverse the Superior Court.
Chief Justice CASTILLE, Justices EAKIN, TODD, and MCCAFFERY join the opinion.
Justice SAYLOR files a dissenting opinion.
Justice BAER files a dissenting opinion.
Justice SAYLOR, dissenting.
Like Mr. Justice Baer, I support the Superior Court‘s position that the Commonwealth‘s actions in this case were inappropriate and unduly prejudicial. As Justice Baer presently observes, the district attorney, as an initial matter, elicited testimony implicating Lettau‘s pre-arrest silence or partial silence in a manner that did not comport with controlling precedent. See Dissenting Opinion, at 452-54, 986 A.2d at 124-26 (Baer, J.); accord Commonwealth v. Lettau, 955 A.2d 360, 363-67 (Pa.Super.2008) (providing a detailed overview of prevailing case law on the issue and distinguishing the present
[w]hen Lettau later took the stand in his own defense, his counsel elicited his version of the interview with the trooper, ostensibly to counter the more critical version the jury had already heard from Trooper Fagley. In response, the Commonwealth ... repeatedly [questioned Lettau] on Trooper Fagley‘s version of the telephone interview on every point... In response to each inconsistency between Lettau‘s testimony and the trooper‘s account, the Commonwealth challenged the witness to characterize the trooper‘s statement as a lie.
Compounding matters, the Commonwealth recalled Trooper Fagley after the defense rested its case and inquired, once again, about every nuance of his conversation with Lettau. Indeed, the portion of the transcription dedicated to the content of this single telephone conversation exceeds that allowed to develop the events that gave rise to the charges.
Id. at 366-67 (record citations omitted).
I find no fault with the Superior Court‘s conclusion that, by persistently dwelling upon Lettau‘s unwillingness to divulge certain information to the police during the pre-arrest time-frame, raising the issue in a manner inconsistent with prevailing fair-response doctrine, and then predicating its ultimate argument for guilt, in large degree, on Lettau‘s pre-arrest silence in this regard, see N.T. Apr. 27, 2007, at 39 (“Why is [Lettau] preventing [the trooper] from doing a fair and full investigation[?] What‘s that tell you about what [Lettau] knew, ladies and gentlemen[?]“); see also Dissenting Opinion, at 452-54, 986 A.2d at 123-24 (Baer, J.) (quoting other portions of the prosecutor‘s closing argument), the Commonwealth impermissibly burdened Lettau‘s Fifth-Amendment rights. Accord Lettau, 955 A.2d at 367 (“[T]he level of attention accorded the disparities in the witnesses’ testimony is so disproportionate to the testimony concerning the charged offenses, as to imply to lay jurors that the offense on trial is in fact the defendant‘s failure to cooperate more fully with
Justice BAER, dissenting.
I respectfully, yet vigorously, dissent from the Majority‘s conclusion that evidence of Appellee‘s pre-arrest lack of cooperation was properly admitted as rebuttal evidence because Appellee opened the “proverbial door” “by claiming that he gave police extensive information to advance their investigation.” Majority Op. at 445, 986 A.2d at 119. To the contrary, and consistent with the Superior Court‘s decision herein, my review of the record indicates that it was the Commonwealth who first introduced evidence suggesting that Appellee was uncooperative in the police investigation, and improperly urged the jury to view such conduct as substantive evidence of Appellee‘s guilt. For these reasons, I conclude that our previous decisions in Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996), and Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005), are clearly distinguishable, and the Majority‘s reliance upon them is misplaced. Additionally, I disagree with the Majority‘s finding of waiver, and conclude that Appellee properly preserved the specific claims upon which the Superior Court granted him relief.
It is undisputed that Appellee presented for payment a $100 check written to Linda McConnell, and, in doing so, provided the bank teller with his identity as set forth on his driver‘s license. It is further undisputed that Appellee affixed his own signature on the back of the check underneath the purported signature of McConnell, and that McConnell never actually signed the check or gave Appellee authority to cash the check. The factual issue for the jury to resolve was whether Appellee knew that McConnell‘s signature had been forged at the time he presented the check for payment, or whether he mistakenly believed that the “Linda” written on the check (Linda McConnell) was the same “Linda” (Linda Krieter) who had accompanied him to the bank.1
A review of the transcript of the very short trial reveals that the Commonwealth relied almost exclusively on Appellee‘s lack of cooperation in the investigation conducted by Trooper Fagley to prove that he was guilty of the offenses charged, namely, forgery and theft by receiving stolen property. The Commonwealth‘s method of establishing the elements of such offenses was to demonstrate that Appellee knew the $100 check had been stolen when he presented it for payment; not that Appellee, himself, forged McConnell‘s signature. See N.T. 4/27/2007 at 40 (wherein the prosecutor noted in his closing argument, “And wouldn‘t we all like to know who actually signed [the check]. Do we need to know retro whether this defendant committed forgery. No. Not at all. That‘s not something that needs to be proven beyond a reasonable doubt.“); id. at 41 (wherein the prosecutor stated “So did [Appellee] utter, that means place into circulation, that means present to a teller, that commercial instrument, that check, knowing he was not authorized to do so. That‘s the forgery.“); id. at 36 (wherein the prosecutor stated “[Appellee] presented the check as though he was authorized to do so. [Appellee] was not so authorized. And he knew it. Take a look at what he told the trooper.“) (emphasis added).
While it ultimately holds that Appellee opened the door to his lack of pre-arrest cooperation, the Majority recognizes that in the Commonwealth‘s case in chief, it called Trooper Fagley to describe his investigation and give testimony about conversations he had with Appellee and the victim during his investigation. Op. at 439-40, 986 A.2d at 115-16. Significantly, the Majority acknowledges that, on direct examination by the Commonwealth, “[Trooper] Fagley also testified that [Appellee] refused to say where his church was located except that it was in the state of Pennsylvania and, in Fagley‘s words, ‘that was the most amount of information I could get pertaining to
This statement elicited by the Commonwealth unmistakably introduced into the trial the notion that Appellee refused to participate in the police investigation.2 It was for this reason that Appellee, when testifying on his own behalf, attempted to rebut such inference by describing his efforts in answering Trooper Fagley‘s inquiries.
Fundamental to my conclusion is that the specific claim upon which the Superior Court granted Appellee relief was based on: (1) the Commonwealth‘s cross-examination of Appellee; and (2) the Commonwealth‘s rebuttal testimony of Trooper Fagley, which occurred after the Commonwealth had introduced Appellee‘s pre-arrest silence or lack of cooperation. Further, both of these particular references were met with prompt objections by defense counsel.
On cross-examination of Appellee, the following exchange occurred wherein the Commonwealth was questioning Appellee regarding whether he told Trooper Fagley Linda Krieter‘s address.
THE COMMONWEALTH: You had been there [Linda Krieter‘s house] six or eight times, right?
APPELLEE: More than that even by then.
THE COMMONWEALTH: Okay. So you told somebody [where Krieter lived]?
APPELLEE: Someone that was saying they were a State Police, Trooper Fagley.
THE COMMONWEALTH: Oh, and you think that was Trooper Fagley that you told?
APPELLEE: I don‘t know. All I know is that when I talked I never saw his face, I never knew his voice.
APPELLEE: No, he didn‘t sir.
DEFENSE COUNSEL: Objection, Your Honor. Request a sidebar.
(Whereupon, a side-bar conference was held.)
N.T. April 26, 2007, at 123-24.
Defense counsel‘s objection was based upon the Commonwealth‘s violation of Appellee‘s absolute right to remain silent by asking him whether he was invited to the police barracks to talk, and refused. The trial court overruled defense counsel‘s objection.
Thereafter, the Commonwealth presented the rebuttal testimony of Trooper Fagley, whereupon the following exchange took place:
THE COMMONWEALTH: How many times did you try to get ahold of [Appellee] by the phone?
TROOPER FAGLEY: Numerous times. Originally it was probably three or four times before he returned my call.
COMMONWEALTH: And when you spoke with him, did you make inquiry of where, the—where you wanted the interview to be?
TROOPER FAGLEY: Yes. When he originally called back on the 5th of June at approximately 10:30 at night, I did ask him if he wanted to respond to the State Police barracks there in Butler and provide me a statement. He refused to do that. I then asked him, you know, what was his home address, I would come there and take a statement.
DEFENSE COUNSEL: Objection, Your Honor. Request a sidebar.
Id. at 169.
Defense counsel‘s objection was again grounded upon Appellee‘s Fifth Amendment right to silence, arguing that he was not required to go to the police station and give a written statement. The trial court overruled Appellant‘s objection and denied his motion for a mistrial.
In Bolus, the defendant, an operator of a towing company, was charged with receiving stolen property, namely, a front-end loader. When initially questioned by police prior to arrest, the defendant denied having any knowledge regarding the whereabouts of the front-end loader, and then refused to cooperate with the police. 680 A.2d at 841. At trial, however, the defendant testified to a different version of the events, i.e., that he had purchased the front-end loader from an enumerated individual. Id. On cross-examination, the prosecutor questioned the defendant regarding the fact that he never told the officers that he had purchased the front-end loader. Id. The claim raised on appeal was whether trial counsel was ineffective for failing to object to the questions concerning the defendant‘s pre-arrest failure to cooperate in the police investigation.
Our Court ruled in Bolus that counsel was not ineffective for failing to object as the claim lacked arguable merit. Id. at 844. We relied on Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), which held that the use of an accused‘s pre-arrest silence to impeach his credibility on cross-examination when the defendant testifies at trial does not violate the Fifth or Fourteenth Amendments.3 680 A.2d at 843.
Our decision in DiNicola is likewise distinguishable. There, the defendant was charged with aggravated indecent assault of a minor. Unlike the case at bar where the Commonwealth initially introduced the evidence of the defendant‘s pre-arrest “silence,” the defense in DiNicola presented the testimony of the investigating trooper to elicit responses indicating that the police investigation was inadequate. 866 A.2d at 331. The Commonwealth objected, noting that such questioning would lead to the trooper revealing the defendant‘s pre-arrest assertion of silence. The trial court overruled the objection, and trial counsel proceeded with its direct-examination of the trooper, asking leading questions implying that the investigative efforts were minimal. The Commonwealth again objected, contending that the questioning would open the door to the trooper elaborating on his unsuccessful effort to interview the defendant. The trial court again overruled the objection, but tried to dissuade trial counsel from his intended course. Trial counsel then queried, “Now, was anything done by you—anything—did you look into any other direction to see if these charges were unfounded?” Id. at 332. When the trooper responded that he had contacted the defendant, trial counsel interrupted the response, shifting the focus away from the defendant‘s response to the trooper‘s inquiry. On cross-
With new counsel, the defendant challenged trial counsel‘s ineffectiveness for failing to object to the trooper‘s reference to his pre-arrest silence, and for opening the door to the inevitable revelation. We held that trial counsel was not ineffective for failing to object to the trooper‘s reference to the defendant‘s pre-arrest silence because the Commonwealth‘s elicitation of such testimony was in “fair response” to the defendant‘s own questioning. Id. at 336. We relied on U.S. v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), which held that the
Here, the Commonwealth did not reference Appellee‘s pre-arrest conduct as “fair response” to an initial comment made by Appellee, but instead the Commonwealth, itself, initiated the subject and used that evidence to create an inference of guilt. We emphasized in DiNicola that a balance must be struck between “probative value versus prejudicial effect on appropriate objection,” 866 A.2d at 336. That balance in the instant case weighs in favor of Appellee. As cogently noted by the Superior Court, “[i]n this case, the record bears no semblance of the balance DiNicola requires; in point of fact, it documents a persistent line of inquiry by the prosecutor that effectively shredded the defendant‘s presumption of innocence on no sounder a basis than his refusal to volunteer information to a state trooper.” Commonwealth v. Lettau, 955 A.2d 360, 366 (Pa.Super.2008).
Accordingly, I would affirm the Superior Court‘s decision to vacate Lettau‘s judgment of sentence and grant a new trial.