Appeal from the Judgment of Sentence, March 15, 2007, in the Court of Common Pleas of Allegheny County Criminal Division at Nos. CP-02-CR-0007403-2004, CP-02-CR-0009547-2004
The opinion of the court was delivered by: Opinion BY Ford Elliott, P.J.E.:
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, DONOHUE, ALLEN, LAZARUS, AND OLSON, JJ.
Michael Molina appeals nunc pro tunc from the judgment of sentence entered in the Court of Common Pleas of Allegheny County following his conviction for murder in the third degree and unlawful restraint. Herein, we are asked to determine whether the Commonwealth may urge the jury to use a non-testifying defendant's pre-arrest, pre-Miranda*fn1 silence as substantive evidence of his guilt. For the following reasons, we conclude it cannot as such an inference is in violation of the constitutional protectionsafforded by the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.
Molina was charged at Criminal Information No. CC 200407403 with one count of criminal homicide in violation of 18 Pa.C.S.A. § 2501 for the beating death of Melissa Snodgrass, whose badly decomposed body was discovered in a basement under a pile of debris in March of 2004. In addition, at Criminal Information No. CC 200407611, Molina was charged with one count each of criminal conspiracy, 18 Pa.C.S.A. § 903, and unlawful restraint, 18 Pa.C.S.A. § 2902. On December 13, 2006, a jury trial commenced before the Honorable David R. Cashman.
A brief summary of the facts relevant to the issue is as follows. From the time of Snodgrass' disappearance on September 7, 2003, until her mummified remains were found on March 9, 2004, Snodgrass' disappearance was handled by Detective Stacey Hawthorne-Bey of the Missing Persons Unit of the Pittsburgh Police Department. (Notes of testimony, 12/18-12 & 20/06 Vol. II at 477-479.) At trial, Detective Hawthorne-Bey testified that she initially received information that Snodgrass might be held against her will in Molina's house on Perrysville Avenue in the City of Pittsburgh. The detective went to that address and was told that Molina no longer lived there. (Id. at 480.) She was told by Pamela Deloe that Snodgrass was not there. (Id. at 483.) Detective
Hawthorne-Bey asked Deloe to tell Molina to call her, and she gave Deloe her number.
Later the same day, Molina contacted the detective; and before she could ask him if he was aware that Snodgrass was missing, Molina told her that he did not know where she was but it was "out on the street" that he was somehow involved in her being missing and that was not true. (Id. at 480.) Detective Hawthorne-Bey asked Molina when he last saw Snodgrass, and he initially told the detective a year and a half ago; then moments later, Molina stated it had been approximately three months since he last saw Snodgrass. (Id. at 481.) The detective testified that she asked Molina to come down to police headquarters so she could further interview him and he refused. (Id.)
At closing argument, counsel for the Commonwealth commented on Molina's refusal to cooperate with Detective Hawthorne-Bey, and asked "Why?" (Id. at 580.) Defense counsel objected. The trial court overruled the objection and refused counsel's request for a curative instruction. The Commonwealth resumed and argued to the jury, "Factor that in when you're making an important decision in this case . . . ." (Id. at 581.)
On December 20, 2006, the jury found Molina guilty of third-degree murder and unlawful restraint.*fn2 On the same date, Molina proceeded tosentencing. At No. CC 200407403, appellant was sentenced to 20 to 40 years' imprisonment for third-degree murder, and no further penalty was imposed for the unlawful restraint conviction at No. CC 200407611. No post-sentence motions were filed, nor was a direct appeal perfected.
On July 11, 2007, Molina, acting pro se, filed an untimely notice of appeal with regard to his convictions relating to Snodgrass. Judge Cashman reinstated Molina's direct appeal rights on September 26, 2007, and appointed Thomas N. Farrell, Esq., to represent him.*fn3 A three-judge panel of this court initially authored an opinion that reversed Molina's convictions.
Commonwealth v. Molina, 2 A.3d 1244 (Pa.Super. 2010). The panel, and instructed the parties to re-file the briefs previously filed together with a supplemental brief or prepare and file a substituted brief. Both parties filed substituted briefs.
Herein, one issue is presented for our review. Molina contends that the trial court committed reversible error when it permitted the Commonwealth, over objection, to reference his pre-arrest silence in response to police questioning as substantive evidence of guilt. (Molina's substituted brief at 4.) Specifically, Molina challenges the following commentary by the prosecution at closing argument:
Look also at what happened in terms of the police investigation in this matter. Three days after [Snodgrass] goes missing, three days after she goes missing, detectives are already knocking on [Molina's] door because of something they heard, maybe he was holding this person against [her] will, and he calls the police back and is very defensive. I mean, before a question's even asked, he denied any knowledge or any involvement with this young lady. He makes contradictory statements to the police about when's the last time that he saw her. First he says, "I saw her a year and a half ago." Then he says, "I saw her three months ago." But most telling, I think, is the fact that the [detective] invited him. "Well, come on down and talk to us. We want to ask you some more questions about this incident, your knowledge of this young lady," especially because he made these contradictory statements. And what happens? Nothing happens. He refuses to cooperate with the Missing Persons detectives. And why?
Notes of testimony, 12/18-12/20/06, Vol. II at 579-580 (emphasis added).
Defense counsel objected, arguing that the prosecutor's commentary was improper; both counsel approached the bench. (Id. at 580.) After discussing the matter, the trial court overruled Molina's objection and refused his request for a curative instruction to the jury. (Id. at 580-581.)
The Commonwealth then resumed and argued to the jury: "Factor that in when you're making an important decision in this case as well." (Id. at 581.)
Molina argues that the trial court erred in overruling his objection to the Commonwealth's closing statement that the jury should consider Molina's refusal to go to the police station to discuss Snodgrass' disappearance as evidence of his guilt. Molina avers he is entitled to a new trial as the court's error violated the Fifth Amendment of the United States Constitution and also Article 1, Section 9 of the Pennsylvania Constitution as well as Pennsylvania law, including 42 Pa.C.S.A. § 5941(a). (Molina's substituted brief at 28-29.)
The Commonwealth first contends that Molina did not object to the testimony concerning appellant's pre-arrest silence at the proper stage and, thus, waived the issue. The Commonwealth argues that Molina failed to object to Detective Hawthorne-Bey's testimony when she originally stated that Molina refused to go to the police station to discuss the case. Thus, because Molina did not lodge a contemporaneous objection at the time the statement was first offered, the Commonwealth posits Molina lost his right to challenge any reference indicating that he refused to cooperate with the police. (Commonwealth's substituted brief at 12, 17-21.) We disagree and find that the Commonwealth's waiver argument misconstrues Molina's objection.
WAIVER DUE TO A LACK OF A CONTEMPORANEOUS OBJECTION
We agree with the Commonwealth that it is "well-settled that a defendant's failure to object to allegedly improper testimony at the appropriate stage in the questioning of the witness constitutes waiver." Commonwealth v. Redel, 484 A.2d 171, 175 (Pa.Super. 1984). However, Molina's lack of objection during Detective Hawthorne-Bey's direct examination is not fatal to Molina's claim as he is not contending that the detective's testimony constituted prejudicial evidence that denied him a fair trial. Rather, Molina is arguing that the prosecutor's use of the detective's testimony to suggest consciousness of guilt was improper. Thus, we find that Molina contemporaneously objected to the prosecutor's statement and timely requested a curative instruction.*fn4
As the trial court noted, Detective Hawthorne-Bey's testimony was originally offered to denote the extent and focus of the police investigation with regard to Snodgrass' disappearance. (Trial court opinion, 4/15/09 at 30.) The actual evidence which resulted in the detective's examination did not reveal that Molina tacitly admitted guilt, but instead it revealed the steps the police took to investigate Snodgrass' disappearance. The revelation of silence in this case was limited to its context. The trooper revealed the exchange with Molina wherein a denial of wrongdoing was immediate, and the decision to engage in further discussion with the trooper was declined. In this situation, the reference to silence was not used in any fashion that was likely to burden Molina's Fifth Amendment right or to create an inference of an admission of guilt. Cf. Commonwealth v. DiNicola, 581 Pa. 550, 563, 866 A.2d 329, 337 (2005) (The mere revelation of a defendant's pre-arrest silence does not establish innate prejudice; reference to silence was circumspect, and it was not used in any fashion that was likely to burden defendant's Fifth Amendment right or to create inference of admission of guilt.).
We find that the detective's testimony was originally offered for one narrow purpose -- the extent and focus of the investigation relating to Snodgrass' disappearance. However, the Commonwealth later used the same testimony for a different purpose during closing argument -- as evidence of Molina's guilt. While Molina did not object to the testimony for the purpose it was originally offered, Molina did promptly object and assert a claim of prosecutorial misconduct when the Commonwealth sought to indicate that such was evidence of guilt.*fn5 Therefore, we decline to find waiver.
A NON-TESTIFYING DEFENDANT'S PRE-ARREST SILENCE AS SUBSTANTIVE EVIDENCE OF GUILT
We now turn to the heart of Molina's claim which is whether the prosecution made an impermissible reference to his pre-arrest silence. The Commonwealth essentially argues that the prohibition against the use of a defendant's silence applies only to post-arrest or post-Miranda situations.
Both the United States Constitution and the Pennsylvania Constitution protect every person against being compelled to be a witness against himself or herself. U.S. Const. Amend. V; Article I, § 9. Pennsylvania courts generally interpret Article I, Section 9 of the Pennsylvania Constitution to provide the same protection as the Fifth Amendment to the United States Constitution. See Commonwealth v. Arroyo, 555 Pa. 125, 134-135, 723 A.2d 162, 166-167 (1999), citing Commonwealth v. Morley, 545 Pa. 420, 429, 681 A.2d 1254, 1258 (1996), and Commonwealth v. Swinehart, 541 Pa. 500, 512-518, 664 A.2d 957, 962-965 (1995). The privilege of the Fifth Amendment is protected by the now famous Miranda rights. State v. Leach, 807 N.E.2d 335, 337 (Ohio 2004), see also Miranda, 384 U.S. at 479 (holding that certain procedural warnings shall be read to a person being interrogated while in custody). Essentially, there are four relevant time periods at which a defendant may either volunteer a statement or remain silent: (1) before arrest; (2) after arrest but before the warnings required by Miranda have been given; (3) after Miranda warnings have been given; and (4) at trial. Although this case involves only pre-arrest, we touch on all four briefly in reverse order.
The Fifth Amendment protects a defendant's decision not to testify at trial from prosecutorial comment. See Griffin v. California, 380 U.S. 609, 613-614 (1965) (describing a state constitutional provision permitting comment on a defendant's silence at trial as a violation of the Fifth Amendment protection against self-incrimination); Commonwealth v. Randall, 758 A.2d 669, 681 (Pa.Super. 2000) ("It is axiomatic that a prosecutor may not comment adversely on a defendant's refusal to testify with respect to the charges against him since such commentary would compromise the defendant's privilege against self-incrimination and the defendant's constitutional presumption of innocence."), appeal denied, 564 Pa. 707, 764 A.2d 1067 (2000). As justification for its holding, the Griffin court broadly reasoned, "comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice, which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down the privilege by making its assertion costly." Griffin, 380 U.S. at 614 (quotation marks, citation, and footnote omitted). Thus, a criminal defendant has the absolute right to remain silent and to not present evidence.
Similarly, due process guaranteed by the Fourteenth Amendment protects post-Miranda silence for impeachment purposes. Doyle v. Ohio, 426 U.S. 610, 618 (1976) (holding that, in light of the assurance implicit in the Miranda warning that silence will carry no penalty, "it would be fundamentally unfair" and a denial of due process protected by the Fourteenth Amendment to allow post-Miranda silence to be used in a state criminal trial "to impeach an explanation subsequently offered at trial.").
Our supreme court in Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822 (2005), cert. denied, 546 U.S. 984 (2005), noted:
In the seminal case of [Doyle, supra] the U.S. Supreme Court determined that prosecutorial comment at trial on a defendant's post-Miranda silence may violate due process, and that the prosecution generally may not impeach a testifying defendant with the fact of his post-Miranda silence. The Court reasoned that it would be fundamentally unfair and a deprivation of due process to provide Miranda warnings, which imply that silence carries no penalty, and then allow the defendant's post- Miranda silence to be used by the prosecution as impeachment at trial. See Doyle, [426 U.S. at 617- 18]. In addition, the Court noted, when silence follows upon issuance of Miranda warnings, it may be a result of an exercise of Miranda rights (rather than, for example, a tacit admission); such silence, therefore, is "insolubly ambiguous." [Id. at 617].
Spotz, 582 Pa. at 222, 870 A.2d at 830-831 (footnote omitted).*fn6
The law regarding post-arrest, pre-Miranda silence is less clear. In Fletcher v. Weir, 455 U.S. 603 (1982), the Court held that when a defendant has already been arrested but not yet Mirandized and later takes the stand in his own defense, the Fifth Amendment is not violated when the government cross-examines him concerning his post-arrest silence. However, the United States Supreme Court has not yet addressed whether post-arrest, pre-Miranda silence may be used as substantive evidence of guilt in the state's case.
However, in Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), the Pennsylvania Supreme Court explicitly acknowledged a more restrictive position than that taken by the United States Supreme Court in Fletcher. The Turner court held that a defendant cannot be impeached by the use of the inconsistency between his silence at the time of arrest, but before Miranda warnings are provided. Id. at 583, 454 A.2d at 539. The court established that in Pennsylvania 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]." Id. at 584, 454 A.2d at 540.
The defendant in Turner was convicted of voluntary manslaughter following a shooting in a bar. At trial, the defendant, for the first time, stated that the shooting had been in self-defense. The prosecutor questioned him as to why he had never told the police this version of events. Id. at 581, 454 A.2d at 538. The defense objected and moved for a mistrial. Only a cautionary instruction was given. On appeal, the supreme court reversed, finding that the prosecution could not impeach the accused with his previous silence; rather, defendants ...