Appeal from the Order of the Superior Court entered July 10, 2008 at No. 1396 WDA 2007, vacating the Judgment of Sentence of the Court of Common Pleas of Butler County entered June 28, 2007 at No. CP-10-CR-0002635-2006, and remanding. 955 A.2d 360 (Pa. Super. 2008).
The opinion of the court was delivered by: Madame Justice Greenspan
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
ARGUED: September 15, 2009
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.
Appellee David John Lettau ("Lettau") was charged with forgery and theft for cashing a stolen check. Lettau, a minister who is licensed in pastoral counseling, testified at trial in his own defense. Lettau explained that he met Paul Haffley when he was referred by a local social service agency to counsel Haffley after Butler County Children and Youth Services removed Haffley's child. Lettau testified that he had met with Haffley several times at Haffley's home and that he occasionally performed favors for Haffley. Lettau also testified that while visiting Haffley's home, he met a woman named Sister Linda, later revealed to be Linda Krieter, who Haffley described as his cousin. Lettau explained that he soon began to counsel Sister Linda as well. According to Lettau, Haffley asked him to cash a $100 check written to someone named Linda McConnell. Lettau testified that he did not question whether the check belonged to Sister Linda because he did not know her last name. Lettau took Krieter to his bank where he cashed the check and then gave the received funds to Krieter.
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 name. Fagley also testified that Lettau told him that he did not know where Sister Linda lived but that she came to his church on occasion. N.T., 4/26/2007, at 71. According to Fagley, Lettau asked him what the big deal was, because McConnell had gotten her money back. Fagley also testified that Lettau 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 that." N.T., 4/26/2007, at 72.
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 to the barracks to give a statement, and moved for a mistrial based on a claim that the Commonwealth made improper use of Lettau's exercise of his right to remain silent. N.T., 4/26/2007, at 170. The trial court heard argument on the issue and denied the mistrial. The Commonwealth continued its cross-examination of Fagley, who contradicted Lettau's testimony regarding his cooperation with the state police. Previously, Fagley had testified that Lettau never mentioned Haffley or any visits to the Haffley residence and his contact with Krieter there. N.T., 4/26/2007, at 71-73. Instead, as Fagley explained earlier in his direct testimony, Lettau maintained that he did not know where Krieter lived but instead encountered her as a visitor to his church. N.T., 4/26/2007, at 71. At the close of trial, the jury found Lettau guilty of Forgery and Theft by Receiving Stolen Property,*fn1 and the court imposed a sentence of 15 to 30 days incarceration and $400 in fines.
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, 680 A.2d 839 (Pa. 1996) and Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 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.*fn2
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 police unduly prejudiced Lettau, and whether Lettau's trial counsel preserved the essential issues for appellate review. Commonwealth v. Lettau, 963 A.2d 905 (Pa. 2009).*fn3
Both the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution protect an individual's right not to be compelled to be a witness against himself. Article I, Section 9 explicitly allows the use of voluntary admissions for impeachment purposes, and case law under the Fifth Amendment allows a defendant's silence to be used as impeachment evidence when the defendant has testified in his own defense. See, e.g., Jenkins v. Anderson, 447 U.S. 231 (1980).*fn4
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 pulled over a tractor-trailer owned by Bolus and found the stolen front-end loader therein. Id.
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 Fifth Amendment and the Pennsylvania Constitution allow prosecutorial use of pre-arrest, pre-Miranda*fn5 warning silence in order to impeach a defendant who testifies in his own defense. Id. at 844.
In Commonwealth v. Turner, 454 A.2d 537 (Pa. 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 Pennsylvania Constitution prohibit a prosecutor from impeaching the defendant's credibility by referring to his pre-arrest silence."). Notably, in Bolus, the defendant professed ignorance as to the stolen front-end loader, and then testified at trial that the front-end loader belonged to him because he purchased it from an individual named Willie Thomson. Bolus, 680 A.2d at 841 ("[During the investigation,] Appellant denied having any knowledge regarding the whereabouts of the front-end loader. [a]t trial, Appellant testified to a different version of events from that which he had previously told the police. Appellant testified that he had purchased the front-end loader.").
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.*fn6 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 he had cooperated with the police investigation and provided Trooper Fagley specific, relevant information about Haffley and Krieter. For instance, after explaining how he met Haffley and Krieter, including his multiple visits to their residence and the way in which he came to cash the check, Lettau testified that he told Fagley "pretty much the whole scenario we just talked about." N.T., 4/26/2007, at 115. This was in response to a question from his own attorney asking him whether he told Fagley that he had taken Linda Krieter to the bank. Id. His attorney also asked him whether he told Fagley about Paul Haffley. Id. At this point, the Commonwealth offered Fagley's contrary testimony, namely, that Lettau refused to give relevant information about Krieter or about his church, and was not cooperative with Fagley's investigation. N.T., 4/27/2007, at 19.
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, 866 A.2d 329 (Pa. 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 Commonwealth objection and warning that it would lead to the officer's revealing the defendant's ...