*1
Supreme Court Dec. *2 for Becker, Court-appointed, appel- L. Philadelphia,
Flora lant. Div., Gurevitz, Mark Lawler, Chief, Appeals
Robert B. Philadelphia, appellee. LARSEN, ROBERTS, NIX, O’BRIEN, C.J., and
Before HUTCHINSON, and JJ. FLAHERTY, McDERMOTT THE COURT OPINION OF FLAHERTY, Justice. sentence, of from the judgment
This is a direct appeal1 man- a jury voluntary conviction following appellant’s crime, but an instrument of and slaughter possession of murder. acquittal Richard in the death of shooting was charged
Appellant evi- Conflicting bar. Hilton, Philadelphia a occurring during to whether the was fired gun dence was offered as over- having a or whether appellant, the course of struggle September Reassigned to this writer on 1982. Hilton, stood over him and shot him three times. powered behalf, testified in his own that the Appellant maintaining was in self-defense. As witness shooting provide he testified that Hilton exculpatory testimony, put gun shoulder, Hilton, his he whereupon him, disarmed grabbed and, then noticed a whom he drug dealer with had been negotiating during the course of the be- evening, standing hind Hilton with a gun. the dealer had fired at Thinking him, fired appellant once, Hilton’s Hilton. gun striking Ap- over pellant, firing gun his own shoulder he because heard two additional at him, shots fired ran from the scene. Hilton was hit three times and died from these wounds.
Following appellant’s conviction and the of post- denial motions, verdict he was sentenced to a term five ten This years imprisonment. followed. appeal contends that reference Appellant prosecu *3 tor, in his cross-examination of appellant, to appellant’s silence before trial constitutes reversible error warranting the grant of a new trial. We agree. stated,
After on appellant that cross-examination, he saw the him, dealer at the drug shooting asked: prosecutor “Did ever tell you the police was at somebody shooting you?” Appellant not, time, had at given statement to the police. This in-court was the testimony first occasion on which offered an appellant of version the shoot- exculpatory ing. Before appellant answered, defense objected counsel to sidebar, the question and, moved for a mistrial. The trial the judge sustained but objection denied for the motion mistrial, instead giving to cautionary instructions the jury sua sponte.2 the of During trial, course the there were no further prosecutorial references to silence. appellant’s 2. These instructions were: gentlemen jury, you Ladies and the beginning of I told at the of this trial, instructions, gave preliminary you when I the evidence you your you are to consider when as deliberate to verdict is what you specifically, recall, hear from this witness stand. I told as I now, questions by lawyers and I reiterate it of asked either the just even the question court are not A evidence. was asked Attorney we to before went sidebar the Assistant District instruc- cautionary that the contends
The Commonwealth
itself,
effective, render-
was
tion,
evidenced
the verdict
as
is,
argues
the Commonwealth
harmless. That
error
ing any
man-
voluntary
a verdict of
returning
jury, by
the
self-defense credi-
assertion of
found appellant’s
slaughter,
unreasonable, and
Commonwealth’s
rejected
ble though
a ver-
killing, returning
intentional
of
charge
premeditated,
Manslaughter
the Voluntary
(b)
dict under subsection
killing.”3
belief
statute, “Unreasonable
has
established
recently
Court
States Supreme
United
trial
of references
permissibility
constitutional
occurred
the silence
question
silence where
post-arrest
Weir,
Fletcher v.
warnings.
of Miranda
to the
giving
This
583
established. See Commonwealth v.
610,
478 Pa.
Singletary,
612,
“We would be naive if we failed to recognize most view an laymen assertion of the Fifth Amendment privi- as a lege badge guilt.” Walker v. United States [404 F.2d 900 (5th Cir.1968)], ... It is clear that “[t]he privilege against self-incrimination would be reduced to a hollow if its exercise could mockery be taken as equivalent either to a confession of or a guilt conclusive presumption of perjury.” Slochower v. Board of Ed. of Higher N.Y. 551, 76 637, U.S. S.Ct. 100 L.Ed. [350 692].
Commonwealth v. Haideman, 367, 371, 449 Pa. 765, 296 A.2d 767 (1972) (citations omitted).
The prejudice to the defendant from ref resulting erence to his silence is substantial. While it is efficacious for the Commonwealth to attempt uncover a fabricated version of events, in light of the “insolubly ambiguous” nature of silence on the of the part accused, Ohio, Doyle v. 610, 617, 2240, 2244, 91, L.Ed.2d we (1976), do not think it sufficiently probative an incon with his sistency in-court to warrant testimony allowance of any reference at trial to the silence. Accordingly, Com monwealth must seek to impeach a defendant’s relation of events reference inconsistencies as they factually exist, not to the purported between inconsistency silence at arrest and at testimony trial. Silence at the time of arrest may become a factual inconsistency the face of an asser tion accused while at testifying trial that he related this version to the police the time of arrest when in fact he remained silent. Ohio, Doyle 619, Id. at n. 11, 96 S.Ct. at 2245, n. 49 L.Ed.2d n. 11. Absent such an assertion, the reference prosecutor previous silence is impermissible and reversible error.
Article 9 of the Constitution Pennsylvania § provides the accused “cannot be compelled to give evidence *5 584 himself . . .a is
against right parallel which to the federal constitutional under the right Fifth Amendment. We do not think that the accused be should protected only where there is of governmental inducement the exercise of the We right. acknowledge this is more position restrictive than that taken the United by Supreme States Court in Weir, v. However, Fletcher we decline hold, under supra. the Pennsylvania Constitution, that the existence of Miran- da warnings, absence, or their affects person’s legitimate expectation not to be penalized for the exercising right to remain silent. In v. 337, Commonwealth Pa. Easley, 483 396 A.2d (1979), 1198 this Court in a footnote stated: do not believe reason exists to differentiate
[W]e between situations where right the to remain silent is exercised following warnings and where it is exercised without warnings being given. Whether or not the exer- cise of the right remain silent is induced by being of it advised at the time of arrest is self-motivated by it knowledge by the accused not should limit or the extend effect of the exercising right.
Id., 5, 483 Pa. at n. 341-42 396 also A.2d 1200-01. n. See A;2d Commonwealth v. 478 Pa. Singletary, We reject also the the argument Commonwealth the reference was harmless error as evidenced the fact of reduced verdict i.e. voluntary manslaughter, re- verdict, turning voluntary manslaughter the jury purport- indicated its belief of the edly appellant’s version events and was not in the affected decision making process by prosecutor’s question. improper error
Such
is “harmless
if the
court
appellate
is
convinced
a reasonable
beyond
doubt that the
error
harm
less”.
Commonwealth
That is not requirement fulfilled in this case. In order draw conclusions from the verdict about what the jury *6 believed, the Commonwealth’s about the hypothesis jury’s state of mind would have to be a and sufficient necessary of the explanation verdict. But the most obvious of alterna- tive explanations presents itself: the have jury deliv- may ered a compromise verdict. The have decided that jury may the Commonwealth’s case was bolstered the significantly reference to appellant’s post-arrest silence and that it would be to a appropriate impose verdict more severe than acquit-
tal but less severe than murder. Commonwealth See McClendon, 478 Pa. 385 A.2d Verdicts are arrived at after and many objective subjective considerations and do not conform always to the perfectly instructions the given Thus, court. no sound conclusions can be drawn from the verdict about “what the be- jury lieved” concerning appellant’s To credibility. to attempt draw such conclusions is to speculate. As we cannot be sure the jury would have resolved the issue in the same manner absent the reference, improper we are not convinced beyond reasonable doubt that the error did not contribute to the verdict. Far from error, being harmless the reference well may have contributed to the impermissibly verdict. Accordingly, judgment of sentence of the Court of Common Pleas is vacated and the case is remanded for a new trial.4
NIX, J., files a dissenting opinion.
McDERMOTT, J., files a dissenting opinion which HUTCHINSON, J., joins. disposition
4. Due to our regarding prosecutorial of the issue refer- silence, post-arrest ence to we need not address the other issues by appellant: first, raised whether trial counsel was ineffective in failing request charge involuntary and, manslaughter, whether judicial uniformity lack of in terms of when the instruction was to be given appellant’s equal protection violated process rights; and due second, denying appellant’s whether the trial court erred in motion following for a new prosecutor’s trial hearsay reference to a decedent, third, statement and trial whether counsel was ineffec- stipulating tive for appellant’s past to admission of convictions and failing explain stipulation appellant. ramifications of this NIX, Justice, dissenting. its majority premises relief on the grant theory there was an impermissible reference to appellant’s
post-arrest silence. I believe that the question real present- whether, ed is to the court’s action, corrective alleged reference reached the level of an use impermissible of the defendant’s silence. I post-arrest Since believe that it not, did I dissent.
McDERMOTT, Justice, dissenting.
The Fifth Amendment is a protection against compulsion.
When one
not
force,
compelled by
fear or favor to speak,
but does so
for his
reasons,
own
at a
voluntarily
time
his
own choosing, there is no
reason
he
earthly
why
should not
*7
be
subject
the same searching
as
other
inquiry
witness. The
Court in Fletcher
Supreme
Wier,
455 U.S.
603, 102
1309,
S.Ct.
In Anderson, Jenkins v. 447 231, 239, 86, U.S. 65 L.Ed.2d 100 2124 (1980), S.Ct. case with si- dealing pre-arrest lence, we said:
“Common law has allowed traditionally witnesses to be their impeached by previous failure to state a fact and in circumstances which that fact would naturally have been asserted. 3A J. Wigmore, Evidence, 1042, § p. (Chadbourne Rev.1970). 1046 jurisdiction Each may its formulate own rules of evidence to determine when prior silence is so inconsistent with present statements reference to such impeachment by silence is proba- tive.” 606,
455
1311,
U.S. at
102
at
71
S.Ct.
L.Ed.2d at 493-94.
The
law,
common
based on common experience, recog-
nized,
Court,
as
does
Supreme
silence has its risks.
That facts and circumstances may
natural,
indeed have
human
Moreover,
with
inconsistency
silence.
and
im-
more
portant, “silence” is not the
subject
the constitutional
provision. The Fifth Amendment
is not an exhortation to
silence or
a celebration
its golden qualities.
It
it
protects
exercised,
when
but it does not enforce or
silence.
encourage
Hence, despite its
twist
enigmatic
that Miranda “warnings”
are an inducement
silence,
Court is at
Supreme
pains
that the
say
federal Constitution does not prohibit men-
tion of the natural
inconsistency
exist between
may
silence and the facts and circumstances of a case. Jenkins,
2129;
U.S. at
Fletcher,
S.Ct. at
The Court therefore Supreme left the matter to the states in instances where no warnings inducements to silence exist. Id. Given this opportunity, case, in this majority continues its in adventures uncharted The puddles. majori- ty explicitly acknowledges that the rule is Pennsylvania more restrictive than the position taken Supreme so, Court. In doing I believe the Court has turned a cloak into a dagger.
That one remain silent in the may face of accusation is a personal and a option, constitutional There is a privilege. difference, however, between silence and compulsion. Com- pulsion never permissible. choice, choice, Silence is a the facts and depending upon circumstances, that con- may tain risks. confuses majority with compulsion “silence”. There
is a constitutional protection against silence is a compulsion, *8 choice and a waivable privilege. So as one maintains long silence, must, we as far as possible, it from protect unfavora- ble inference. one When chooses to speak, however, we owe no duty protect against natural that inconsistency exist between may elected, former silence and self-imposed trial testimony. case,
In this appellant, charged murder, with voluntarily took the witness stand to offer his version. No one forced or dragged him. He chose freely He offered speak. that he fired in self-defense because someone was shooting him. On cross-examination he was asked:
Did ever tell the you police was somebody shooting you?
The finds this an majority impermissible reference to appellant’s “silence” at acknowledged clear, arrest. It time, that at no trial, induced, at arrest or was appellant forced, promised or favored to He did so because he speak. to, wanted when he wanted to. To him protect from what ever that elected inconsistency silence have created is to may selected sanctuaries immune give from from the inquiry, truth and from the common testing process, experience Alicea, Commonwealth v. men. See Pa. 582-583, 1381, 1385(1982) (McDermott, J., 449 A.2d dissenting). Court, The not known for a hand in Supreme heavy these matters, has the rule. In each one of adopted these avant garde we we retire more of the minority positions espouse, Here, small tools available to the truth testing process. shield has become a As Mr. weapon. Justice Stevens said in a similar situation:
This is a case which the defendants’ silence at the time of arrest their was inconsistent with their graphically trial were victims of a testimony they unwitting in which the did not “frame-up” police If participate. framed, defendants had been their failure to mention that fact at the time of their arrest is almost inexplicable; for reason, evidence, under rules of accepted their silence is tantamount to a inconsistent statement and admis- sible purposes impeachment. Ohio, 610, 621-22, 2240, 2246,
Doyle J., L.Ed.2d 91 (1976) (Stevens, dissenting) (emphasis sup- (footnote omitted). plied) to save oneself or one’s friends is not always
Silence invoked to thwart it can be a self-cen- oppressors; greedy, Constitution, tered of terrible thing consequence. should not be distorted into a manual for artists to escape ward off threat. every possible
HUTCHINSON, J., in this joins dissenting opinion.