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Commonwealth of Pennsylvania v. Stephen Fischere


May 14, 2012


Appeal from the Judgment of Sentence of October 14, 2010 in the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002523-2009

The opinion of the court was delivered by: Mundy, J.:




Appellant, Stephen Fischere, appeals from the October 14, 2010 aggregate judgment of sentence of 10 to 20 years' imprisonment imposed after he was found guilty of aggravated assault and endangering the welfare of a minor.*fn1 After careful review, we affirm the judgment of sentence.

The trial court summarized the relevant facts of this case as follows.

On the evening of April 28, 2009, the Aldan Borough Police Department responded to a 911 call at 110 West Maryland Avenue, the residence of Barbara Grogan and [Appellant]. The call was received at approximately 6:40 P.M., and Sergeant James Fink, who was on duty that evening and already in the area, arrived on location within minutes of the call. Upon arrival, [Appellant] was observed outside of the residence. [] Appellant appeared upset and directed Sergeant Fink into the downstairs apartment, which belonged to his neighbor, Amber Graff-Eder, and where a small child, (herein after referred to as Z.G.), was observed lying on the living room floor. Z.G. appeared to be unresponsive, but upon closer observation was observed to be breathing shallowly. Sergeant Fink then briefly left the residence to obtain his CPR mask, which was located outside in his patrol vehicle. Sadly, by the time he returned, Z.G. was no longer breathing.

In an effort to resuscitate the child, Sergeant Fink placed his CPR mask on Z.G. and administered two breaths. By this time, Eric Davis, an EMT with Fitzgerald Mercy Hospital, had arrived on the scene and instructed Sergeant Fink to take Z.G. to the ambulance which he had parked outside of the residence. Sergeant Fink did as instructed, and Z.G. was transported to Fitzgerald Mercy Hospital for further care.

At the hospital, Maureen McCullian, a nursing supervisor on duty that evening, was told by Sergeant Fink and Eric Davis that the child had fallen down some steps. Ms. McCullian found this explanation to be at odds with the severity of the injuries and condition of the child upon his arrival to the hospital. Dr. Michelle Azer, who was also on duty at the hospital that evening, was called to the emergency room upon Z.G.'s arrival. Dr. Azer arrived to the emergency room at approximately 7:00 P.M., and, despite the efforts of herself and her medical staff, was unable to get the child's heart started.

At Appellant's [jury] trial [on July 19, 2010], Dr. Azer described the emergency room as chaotic, and relayed to the jury that she too was told that the child had fallen down five to six stairs. Dr. Azer explained that she had never before seen cardiac arrest from a fall down several stairs. Both Ms. McCullian and Dr. Azer observed bruises on the child's body.

On the day of the incident, Barbara Grogan, Z.G.'s mother, was working at a local diner. Her friend Tamera had driven her to work and had then taken Barbara's two children, Z.G. and X.G., back to Tamera's house. Upon the conclusion of her shift, Barbara was to be picked up by her boyfriend, [] Appellant, after he himself finished work. In addition to giving Barbara a ride to work, Tamera had also agreed to watch Barbara's children until [] Appellant finished work and was able to pick them up. Appellant did retrieve the children from Tamera's home around 5:15 that evening and then returned to the apartment he and Barbara shared at 110 West Maryland Avenue, mentioned above.

That evening Barbara received a call to her cell phone around 6:00 P.M., but could not answer the call while she was working. Later a call was made to her workplace, and Barbara was informed that her oldest son, Z.G., had been rushed to the hospital. Barbara was given a ride to the hospital and waited in an interview room while Z.G. was treated by the medical staff at the hospital. Shortly thereafter Barbara was informed by the doctor that, despite the doctors' efforts, her son Z.G. did not survive.

Following this incident, detectives William Gordon and Thomas Worrilow Jr., of the Delaware County Criminal Investigation Division, commenced an investigation into the cause of Z.G.'s death. Appellant, who was the last person to see Z.G. alive, recounted the events leading up to his death and explained that prior to the incident Z.G. had been eating a donut. He stated that he had been gathering the children's belongings before heading to his brother's home, where he intended to stay until Barbara's shift was over. Appellant explained that he had been preoccupied and that tragically, Z.G. had tripped over a seatbelt that had been hung over a railing and had fallen down the stairs. He explained that when he ran to Z.G.'s aid he was not breathing. Appellant explained that he performed CPR and then ran to his neighbor's apartment and asked her to call 911.

Following Z.G.'s death, an autopsy was performed by Delaware County's Chief Medical Examiner, Dr. Frederick Hellman. Dr. Hellman concluded that the manner of death was homicide caused by multiple blunt force trauma to various parts of his body and high neck subluxation. Dr. Hellman, in his professional opinion, did not believe that Z.G.'s injuries were consistent with the story provided by Appellant. Similarly, Dr. Lucy Rourke- Adams, a pediatric neuropatholigist at Children's Hospital of Philadelphia, who examined several of the child's organs following his death, also found it unlikely that Z.G.'s injuries could have been caused by a fall down the steps.

In the case sub judice, the Commonwealth argued that there were pre-existing bruises on Z.G. before the incident on April 28, 2009. The Commonwealth contended that these bruises were not the result of any sort of bruising disorder, but had been inflicted upon the child by the Appellant. The Commonwealth maintained that, on the night of the incident, Appellant had beaten the child to death, and the Commonwealth suggested that the bruising on the child was illustrative of this abuse. In order to establish this theory, the Commonwealth called several medical professionals at trial, some of whom had seen the child arrive at the emergency room on April 28, 2009[,] and some of whom had examined the child in the days leading up to and following his death. These witnesses included Dr. Richard Kaplan, Z.G.'s pediatrician; Dr. Michelle Azer, who was on duty in the emergency room on April 28, 2009 when Z.G. was brought in and unresponsive; Dr. Lucy Rourke-Adams, a pediatric neuropathologist at Children's Hospital of Philadelphia who examined Z.G. following his death, and Dr. Fredrick Hellman, the Chief Medical Examiner in Delaware County.

Additionally, the Commonwealth introduced pre-autopsy photographs of Z.G. to illustrate the condition of his body following the incident. Several of these photographs were shown to Barbara and Tamera during direct examination. Additional photographs were also shown to several of the medical professionals mentioned above, including Dr. Hellman. Several photographs were also shown to the jury during the trial and again during deliberations.

As set forth above, Tamera Campanese, Barbara's best friend, had spent the day caring for Z.G. and his brother on April 28, 2009. At trial Tamera testified that Z.G. seemed happy and had been playing outside in a small pool with her daughter that day. At trial Tamera was shown the pre-autopsy photographs of Z.G. Tamera testified that she did not recall seeing any unusual marks on Z.G.'s body that day.

Barbara was also shown several pre-autopsy photographs at trial. When shown these photographs, Barbara testified that she had not seen the bruising illustrated in the photographs on Z.G. before. On cross-examination, Barbara testified that she had seen some bruising around the child's penis about a week prior to the incident, but explained that it did not look anything like the bruising in the photographs. Barbara explained that she had noticed excessive bruising on Z.G. and, although she claimed she had directly observed the resultant bruises from various bumps and blunders, she was "concerned[] when they just started popping up like all over the place."

Dr. Richard Kaplan, the child's pediatrician, reported that, because of Barbara's concern over these bruises, tests had been performed on Z.G. several days before the day of his death to determine whether the child had a bruising disorder. The results of this test came back normal. Additionally, after tests were conducted on the child post mortem, the medical examiner, Dr. Hellman concluded that several of the bruises observed on Z.G.'s body had been inflicted anywhere from one hour to four hours before the child's death.

Dr. Hellman explained his findings in great detail at trial, and recounted that in addition to the bruises observed on the child's body, Z.G. had injuries to several of his organs, including his liver and spleen. Z.G. also had a subluxation, or "a loosening to tearing of the ligaments between the vertebrae and the spine", in his upper neck bone between the base of his skull and his first cervical vertebrae. Dr. Hellman explained that this type of injury occurs as a result of "considerable force." He explained that there was no bleeding observed at this site, but stated that he did find blood in Z.G.'s peritorial cavity, which he found to be unusual based upon the circumstances that were alleged to have surrounded the child's death.

Trial Court Opinion, 7/20/11, at 1-6 (citations and footnotes omitted).

Additionally, during the Commonwealth's case in-chief, defense counsel's cross-examination of Detective William Gordon raised "the inference that [Detective Gordon] did not ask enough or did not ask the proper questions of [Appellant] during the interview which took place at the hospital[.]" N.T., 7/22/10, at 125.

Detective Gordon and another detective took Appellant's initial statement at the hospital on April 28, 2009. Later that night, Detective Gordon spoke to Dr. Azer who informed the detectives that Appellant's statement was inconsistent with the injuries on Z.G.'s body. Id. at 128. Detective Gordon then returned to Appellant for another interview, at which time, Appellant declined to answer any more questions without first speaking to an attorney. Id.

After defense counsel finished cross-examining Detective Gordon, the Commonwealth asked the trial court for a ruling that if Appellant were to testify, the Commonwealth would be permitted to cross-examine him using his pre-arrest silence with regards to Detective Gordon's request for a second interview. The Commonwealth argued it would be permitted to do so as a fair response to the inferences raised by defense counsel during Detective Gordon's cross-examination. The trial court agreed.

At the conclusion of the trial, the jury found Appellant guilty of aggravated assault, and endangering the welfare of a minor. On October 14, 2010, the trial court imposed an aggregate judgment of sentence of 10 to 20 years' imprisonment. Appellant did not file any post sentence motions. On November 9, 2010, Appellant filed a timely notice of appeal.

On appeal, Appellant raises one issue for our review.

Whether the trial court erred in ruling that the Commonwealth would be permitted to cross-examine [Appellant] regarding his pre-arrest silence if he testified, thus preventing him from taking the stand in his own defense?

Appellant's Brief at 4.

Before we can address the merits of Appellant's claim, we must first discuss his failure to comply with Pennsylvania Rule of Appellate Procedure 1925(b). Rule 1925(b) requires an appellant to timely file a concise statement of matters complained of on appeal when ordered to do so by a trial court. Pa.R.A.P. 1925(b). Our Supreme Court has recently held that Rule 1925(b) is a bright-line rule.

Our jurisprudence is clear and well-settled, and firmly establishes that: Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered; any issues not raised in a Rule 1925(b) statement will be deemed waived; the courts lack the authority to countenance deviations from the Rule's terms; the Rule's provisions are not subject to ad hoc exceptions or selective enforcement; appellants and their counsel are responsible for complying with the Rule's requirements; Rule 1925 violations may be raised by the appellate court sua sponte, and the Rule applies notwithstanding an appellee's request not to enforce it; and, if Rule 1925 is not clear as to what is required of an appellant, on-the-record actions taken by the appellant aimed at compliance may satisfy the Rule. We yet again repeat the principle first stated in [Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998)] that must be applied here: "[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925.

Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived." [Id.] at 309.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

However, this Court has held that an untimely filing of a Rule 1925(b) statement is the equivalent of a failure to file said statement. Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012), citing Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc). Both are per se ineffective assistance of counsel, which in criminal cases would ordinarily require a remand for the filing of a Rule 1925(b) statement pursuant to Pa.R.A.P. 1925(c)(3). Id. However, this Court held "[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues we need not remand and may address the merits of the issues presented." Id.

In this case, the trial court ordered Appellant to file a Rule 1925(b) statement on November 16, 2010. The statement was due 21 days from the date of this filing, on December 7, 2010. On December 6, 2010, Appellant requested an extension of time to file a concise statement in accordance with Rule 1925(b). On December 8, 2010, the trial court granted Appellant an extension until December 27, 2010. Appellant's Rule 1925(b) statement was not filed until December 28, 2010. However, on July 20, 2011, the trial court issued its Rule 1925(a) opinion, accepting Appellant's untimely Rule 1925(b) statement, and addressing the issue Appellant now raises before this Court. Therefore, pursuant to this Court's holding in Thompson, we may address the merits of Appellant's claim.

Appellant avers that the trial court erred in ruling that the Commonwealth could cross-examine him using evidence of his pre-arrest silence if he were to testify. Appellant's Brief at 8. Our standard of review regarding evidentiary issues is well settled. "The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error."

Commonwealth v. Sanchez, 36 A.3d 24, 48 (Pa. 2011) (citations omitted). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill- will or partiality, as shown by the evidence of record." Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007) (citation omitted), appeal denied, 956 A.2d 432 (Pa. 2008). Furthermore, "if in reaching a conclusion the trial court over-rides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error." Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).

We begin by noting "[b]oth 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."

Commonwealth v. Lettau, 986 A.2d 114, 117 (Pa. 2009) (citation omitted). The right to remain silent is grounded in the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966). The Fifth Amendment also protects a defendant's decision to not testify at trial from being commented on by the prosecution to the jury.*fn2 Griffin v. California, 380 U.S. 609, 612 (1965).

However, the Supreme Court has recognized that it does not violate the Fifth and Fourteenth Amendments when the prosecution uses a defendant's pre-arrest silence if he testifies in his own defense. Jenkins v. Anderson, 447 U.S. 231, 238 (1980). Likewise, in Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996), our Supreme Court found the reasoning in Jenkins persuasive.

We ... 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 a defendant's credibility by referring to his pre-arrest silence.

Id. at 844. It would therefore appear, at least from Bolus and Jenkins, that there is no constitutional limit on the Commonwealth's decision of impeaching a criminal defendant's own testimony with evidence of pre-arrest silence when he testifies. Furthermore, our Supreme Court has also held "there is no Fifth Amendment proscription precluding the raising of silence in fair response to defense argumentation." Commonwealth v. DiNicola, 866 A.2d 329, 335 (Pa. 2005), citing United States v. Robinson, 485 U.S. 25, 32 (1988).

However, when an appellant does not testify, the Commonwealth's use of his or her pre-arrest silence is more restricted. In Commonwealth v. Molina, 33 A.3d 51 (Pa. Super. 2011) (en banc), the appellant was charged with third-degree murder and did not testify in his own defense at trial. Id.

at 53. Appellant specifically objected to the following commentary made as part of the Commonwealth's summation.

Look also at what happened in terms of the police investigation in this matter. Three days after [the victim] goes missing, three days after she goes missing, detectives are already knocking on [Appellant'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?

Id. at 55 (citations omitted; emphasis in original). The trial court overruled appellant's objection, and a curative instruction was refused by the trial court. Thereafter, the Commonwealth stated to the jury to "[f]actor that in when you're making an important decision in this case as well." Id. On appeal, the Molina Court concluded that the Commonwealth's use of the appellant's pre-arrest silence violated his constitutional rights, stating as follows.

[T]he [Commonwealth] may not use [pre-arrest]

silence as substantive evidence of guilt when a defendant chooses not to testify, and such use should not be limited to "persons in custody or charged with a crime"; rather, it may also not be used against a defendant who remained silent during the investigation of crime.

Id. at 63. However, this Court did not address the issue as to whether the Commonwealth may nevertheless use a non-testifying defendant's prearrest silence if the defendant opens the door first.

Recently, however, this Court addressed that very issue in Commonwealth v. Adams, 39 A.3d 310 (Pa. Super. 2012). In Adams, the appellant was charged with second-degree murder and various other crimes. Id. at 311. The appellant objected to the following exchange during the Commonwealth's case.

Assistant District Attorney: During your investigation, did you have the occasion to locate


Sergeant Gretsky: Yes.

Assistant District Attorney: And did you attempt to interview [Appellant]?

Sergeant Gretsky: Yes we did; however, he didn't want to speak to us at that time.

Assistant District Attorney: Did you identify yourselves as law enforcement?

Sergeant Gretsky: Yes. We identified ourselves and told him that we'd like to interview him in reference to the [victim's] homicide and that his name came up in the matter.

Assistant District Attorney: And in response to that what did he say?

Sergeant Gretsky: He said he had nothing to say.

Assistant District Attorney: What then--did you have a further conversation with him?

Sergeant Gretsky: Yes. We also asked him to consent to provide us with a DNA sample with the use of a DNA collector at which time he agreed.

Id. at 315. The trial court overruled the appellant's objection. During closing arguments, defense counsel offered several reasons to the jury as to why the appellant refused to speak to law enforcement. Id. The Commonwealth then made its own references to the appellant's pre-arrest silence in its summation.

But [Appellant] takes the odd step. He wants to-- police say hey, look, you've been implicated in a murder. You want to talk to us? He doesn't remain silent. He chooses to talk. And he doesn't say you are out of your mind. I was at this party. It was a month later. I'm at this party. I was having a great time all day. I remember it was at Big Tome's house. He didn't say that. He says I don't have anything to say to you. He chooses not to speak and he chose to say that. He didn't choose to say, whoa, I got an alibi. No prison for me. You're not catching me on a murder rap. He says I have nothing to say to you.

Id. The Adams Court found that the appellant's Fifth Amendment rights were not violated. Id. at 323. We concluded that the Sergeant Gretsky's original testimony "was offered for a narrow purpose, namely to demonstrate the nature and focus of the investigation, and as foundational evidence demonstrating how the police came to obtain [the a]ppellant's DNA sample, which was later admitted into evidence at trial." Id. at 319. As for the Commonwealth's comments during summation, we found Molina distinguishable and concluded the following.

Thus, here, unlike Molina, rather than preserving his right to silence, by remaining silent and continuing to object to any reference by the Commonwealth to that silence, Appellant's counsel made a tactical decision to comment on Appellant's pre-arrest silence during closing argument. In opting to comment about his silence, we conclude that Appellant "opened the door" to the Commonwealth making responsive closing remarks about Appellant's silence.

Id. at 320. Therefore, pursuant to this Court's ruling in Adams, an appellant can open the door to the Commonwealth using his or her pre- arrest silence under the "fair-response doctrine" even when the appellant does not testify.

In the case sub judice, during its cross-examination of Detective Gordon, defense counsel engaged in a line of questioning that inquired into whether law enforcement had asked Appellant specific questions when he gave his initial statement to law enforcement on April 28, 2009. Defense counsel wished to raise the inference that the police had failed to conduct a full investigation.

[Defense Counsel]: Did [Appellant] tell you that after he pressed on [Z.G.'s] chest and stomach and he started throwing up and puking that he did it one more time and he picked up [Z.G.] and ran downstairs to the neighbor's house and she called 911?

[Detective Gordon]: That's correct. ...

[Defense Counsel]: When [Appellant] told you that he did it one more time, ... when I [sic] picked him and ran downstairs to the neighbor's house, do you know what [Appellant] meant when he said, I did it one more time?

[Detective Gordon]: I would assume that was either mouth-to-mouth or chest or stomach compression.

[Defense Counsel]: Did you ask [Appellant] ... at that point in time to demonstrate for you how he performed those chest compressions and that breathing?

[Detective Gordon]: I did not, no.

[Defense Counsel]: While you were interviewing [Appellant] did it occur to you that the manner in which he performed CPR may become a relevant factor in this case?

[Detective Gordon]: Not at all.

[Defense Counsel]: You knew when you interviewed [Appellant] that this child had died, correct?

[Detective Gordon]: Correct.

[Defense Counsel]: Before you sat down and spoke to [Appellant] did you have an idea of what it was you wanted to asked [sic] him?

[Detective Gordon]: I just wanted to ask him what happened. Other than that I had no idea what to ask him.

[Defense Counsel]: You were not aware of how long or how many phone calls were made by [Appellant] from 5:35 p.m., when he came in custody of this child, until 6:40 p.m. when the ambulance was called?

[Detective Gordon]: I did not know how many calls were made, sir.

[Defense Counsel]: Detective, would you agree with me that one principle of effective criminal investigation provides that when conducting an investigation one should seek evidence tending to prove guilt, while at the same time seek evidence tending to prove that the accused is not guilty. Because no one should be accused of a crime they did not commit.

[Detective Gordon]: Sir, I don't understand the question.

[Defense Counsel]: Are you familiar with the principle of effective law enforcement?

N.T., 7/22/10, at 98-101, 103. Defense counsel expressly admitted that this was his purpose in this line of questioning.

[The Court]: ... I thought I saw where you were going. You were trying to show a deficit or a deficiency in his investigation.

[Defense Counsel]: Absolutely. And he's the lead investigator. Id. at 119.

The Commonwealth explained that after conducting their initial interview with Appellant when he gave his statement, the officers went to speak to Dr. Azer and explained Appellant's version of events. N.T.,

7/22/10, at 128. The doctor responded that Appellant's version of events was implausible and inconsistent with the injuries on Z.G.'s body. Id. It was then that the police went immediately back to Appellant for a second, presumably tougher interview. Id. It was upon being asked for that second interview that Appellant declined to answer any more questions. Id. at 128, 130. This is why Detective Gordon did not ask Appellant more questions.


Our Supreme Court has held that when this happens, an appellant has opened the door under the "fair-response doctrine" and the Commonwealth may use evidence of his pre-arrest silence. See Commonwealth v. Copenhefer, 719 A.2d 242, 252 (Pa. 1998) (stating "Appellant may not assert to a jury that on the one hand he was entirely cooperative with investigators but on the other hand not place before that same jury the fact that he belatedly invoked his right to remain silent to refuse to answer the most incriminating questions put to him[]"), cert. denied, Copenhefer v. Pennsylvania, 528 U.S. 830 (1999); see also DiNicola, supra (stating that an appellant's pre-arrest silence can be used in fair response to "trial counsel's strategy ... question[ing] the government's preparation of its case"). In this case, Appellant is asserting to the jury, albeit implicitly, that he was cooperative when he voluntarily spoke to police on April 28, 2009. However, Appellant also does not want the jury to know that on the same night he refused to give a second interview, where the police would have undoubtedly asked more incriminating questions. As noted above, our cases simply do not allow Appellant to have it both ways.

However, in order for evidence of pre-arrest silence to be admissible, it is not enough that defense counsel opened the door. As our Supreme Court noted, in order for the Commonwealth to be able to walk through that door, the evidence of pre-arrest silence must still be "subject[ed] primarily to the trial court's assessment of probative value versus prejudicial effect." DiNicola, supra at 336. In our view, the probative value of the Appellant's silence was to show, as was the case in DiNicola, that Appellant's refusal to speak to the officers again limited law enforcement's ability to conduct the full investigation that defense counsel was insinuating should have been conducted. See DiNicola, supra (stating when an appellant refuses an interview with police and also claims police conducted a deficient investigation, evidence of pre-arrest silence goes to show that the "investigation was obviously limited by [Appellant's] decision to reject the request for an interview[]"). While we understand that introduction of pre- arrest silence inherently carries some degree of prejudice, in light of defense counsel's questioning, we believe it does not outweigh the probative value of the evidence in this case.

We acknowledge that the instant matter is distinguishable from DiNicola because there defense counsel opened the door while performing a direct examination during its own case. However, we conclude it does not make a difference whose witness is on the stand when defense counsel opens the door. We extend the rationale of DiNicola and Adams to this case, and conclude that the Commonwealth would have been permitted to introduce evidence of Appellant's pre-arrest silence as a fair response to the inferences raised by defense counsel.

We further acknowledge that the Commonwealth introduced Appellant's voluntary April 28, 2009 statement to police as part of its direct examination, and raised the inference that Appellant's voluntary statement was inconsistent with Z.G.'s injuries. However, defense counsel's questioning went above and beyond that. In this case, defense counsel, through no provocation from the Commonwealth, engaged in the line of questioning that inquired into why law enforcement did not conduct a more comprehensive interview with Appellant. Allowing the Commonwealth to introduce evidence of Appellant's pre-arrest silence would have answered those inquiries.

Based on the foregoing, we hold that Appellant's constitutional rights would not have been violated had the Commonwealth cross-examined him using evidence of his pre-arrest silence. We therefore conclude that the trial court did not abuse its discretion. Accordingly, we affirm the October 14, 2010 judgment of sentence.

Judgment of sentence affirmed.

Judge Bender files a Dissenting Opinion.



No. 3053 EDA 2010

Appeal from the Judgment of Sentence of October 14, 2010 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002523-2009


The case before us presents a unique scenario concerning our jurisprudence regarding the use of pre-arrest silence. Here, the Commonwealth fired a pre-emptive strike during the presentation of its own case by seeking, successfully, a ruling by the trial court permitting it to use evidence of Appellant's pre-arrest silence against him should he choose to testify. The Majority concludes, by invocation of the doctrine of "fair- response," that the trial court did not abuse its discretion by issuing that ruling. Because I disagree with the trial court's application of the fair response doctrine, the scope of the remedy afforded by the trial court, and because of the ruling's unduly burdensome effect on Appellant's right to testify, I respectfully dissent.

As a preliminary matter, I do agree, in part, with the Majority's initial conclusion that Appellant's constitutional rights would not have been violated had the Commonwealth cross-examined him using evidence of his pre-arrest silence. Our Supreme Court has unambiguously held 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 prohibits a prosecutor from impeaching a defendant's credibility by referring to his pre- arrest silence." Commonwealth v. Bolus, 680 A.2d 839, 844 (Pa. 1996).

Nevertheless, the lack of a constitutional bar is not tantamount to a presumption that the Commonwealth is entitled to use of pre-arrest silence without scrutiny. The use of a defendant's pre-arrest silence is inherently prejudicial and, thus, the courts of this Commonwealth have heretofore been reluctant to permit its use except in limited circumstances. These limited circumstances have been drastically expanded by the Majority's questionable application of the "fair response" doctrine, particularly in the context of the manner in which the proverbial door was opened in this case. Even if the fair response doctrine were applicable in this case, the remedy afforded by the trial court was far in excess of what was required.

Furthermore, the issue presented to this Court for review was whether the trial court's preemptive ruling impeded Appellant's right to testify, an issue left unaddressed by the Majority, and not whether the ruling of the trial court was legally sound regarding Appellant's right to silence as grounded in the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). The Majority's subsequent conclusion, that the trial court's ruling was not an abuse of discretion because Appellant's constitutional right to remain silent would not have been violated by use of evidence of his prearrest silence, is simply unresponsive to the question before this Court. For each of these reasons, I respectfully dissent.

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.

Commonwealth v. Molina, 33 A.3d 51, 57 (Pa. Super. 2011). The Fifth Amendment clearly protects a defendant's decision not to testify at trial from prosecutorial comment. Griffin v. California, 380 U.S. 609 (1965). And prosecutorial comment at trial regarding a defendant's post-arrest, postMiranda silence is also restricted, because 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." Commonwealth v. Spotz, 870 A.2d 822, 831 (Pa. 2005) (citing Doyle v. Ohio, 426 U.S. 610, 617 - 18 (1976)).

Jurisprudence concerning post-arrest, pre-Miranda silence is less uniform. The United States Supreme Court held that the prosecution may cross-examine a defendant who has taken the stand in his own defense with regard to his post-arrest, pre-Miranda silence. Fletcher v. Weir, 455 U.S. 603 (1982). However, the Pennsylvania Supreme Court takes a more restrictive view, and in Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982), our Supreme Court acknowledged the Fletcher decision, stating that "as a matter of federal constitutional law, the use of pre-Miranda silence is permissible to impeach the defendant's trial testimony of exculpatory events." Turner, 454 A.2d at 539. Nevertheless, our Supreme Court distinguished Pennsylvania's regard for the sanctity of silence, stating that "we have traditionally viewed such references to the accused's silence as impermissible for a variety of reasons[,]" and that Pennsylvania has long recognized "a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt." Id.

Despite the fact that the trial court had provided a curative instruction to the jury, and regardless of the fact there was only a single reference to Turner's silence made by the prosecutor,*fn1 our Supreme Court found the reference impermissible and reversible error:

While it is efficacious for the Commonwealth to attempt to uncover a fabricated version of events, in light of the "insolubly ambiguous" nature of silence on the part of the accused, [Doyle, 226 U.S. at 617], we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant allowance of any reference at trial to the silence. Accordingly, the Commonwealth must seek to impeach a defendant's relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial. Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when in fact he remained silent.

Doyle[,]at 619, n.11 . Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

Turner, 454 A.2d at 539-40.

Turner, however, failed to address the issue of pre-arrest silence directly. Two years earlier, in Jenkins v. Anderson, 447 U.S. 231 (1980), the United States Supreme Court held that reference to a defendant's pre- arrest silence does not violate due process when used to impeach the credibility of a testifying defendant. In Molina, we summarized the Jenkins decision as follows:

In Jenkins, the defendant testified at his murder trial that he killed the victim in self-defense. The defendant had surrendered two weeks after the killing. On cross-examination, the state asked him why he had not reported the incident to the police and commented on a two-week period of silence in its closing argument. The defendant argued that proof of his pre-arrest failure to give an explanation violated his Fifth Amendment privilege against self-incrimination. The Jenkins Court held that neither the Fifth Amendment right to be free from self- incrimination nor the Fourteenth Amendment right to due process is violated by the use of pre-arrest silence to impeach a defendant's credibility. The Jenkins Court recognized that impeachment use of silence may be valuable to the trial process and imposes very little burden on an individual's right to remain silent.

Molina, 33 A.3d at 60 (internal citations omitted).

Our Supreme Court finally addressed the use of pre-arrest silence for the first time in Bolus. The Bolus court distinguished its holding from that of Turner because in Turner, "the period of silence which was referenced by the prosecution occurred after the defendant's arrest, but prior to the time the defendant was given his Miranda warnings." Bolus, 680 A.2d at 843. However, in Bolus, "the prosecutor questioned Appellant regarding his silence which occurred months before he was arrested." Id.

Our Supreme Court found Jenkins persuasive, concluding 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 prohibits a prosecutor from impeaching a defendant's credibility by referring to his pre- arrest silence." Id. at 844. However, the Court left "for another day the question of whether a prosecutor may introduce evidence of a criminal defendant's pre-arrest silence when the defendant exercises his constitutional right to remain silent and does not testify at his own trial. Id. at 844 n.5.

Subsequently, in Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005), our Supreme Court recognized that, in addition to the purpose of impeachment of a defendant who takes the stand in his own defense, prearrest, pre-Miranda silence may be used pursuant to the "fair response" doctrine. Id. The DiNicola Court based its holding on Commonwealth v. Copenhefer, 719 A.2d 242 (Pa. 1998), wherein the Supreme Court ruled that post-arrest silence may be addressed as fair response to particular arguments by the defense. Copenhefer, 719 A.2d at 251 - 252. As the Copenhefer Court explained:

Appellant may not assert to a jury that on the one hand he was entirely cooperative with investigators but on the other hand not place before that same jury the fact that he belatedly invoked his right to remain silent to refuse to answer the most incriminating questions put to him. Not only would such a situation be misleading to the factfinder, but it would allow appellant to convert the Fifth Amendment shield into a sword which could not be countered by the prosecutor's further inquiry or fair comment thereon.

Id. at 252.

Our Supreme Court's most recent foray into the realm of pre-arrest silence occurred in Commonwealth v. Lettau, 986 A.2d 114 (Pa. 2009). While not breaking any new ground on the issue, the Lettau Court upended a Superior Court ruling, which itself had reversed the trial court on the grounds "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.'" Id. at 117 (quoting Commonwealth v. Lettau 955 A.2d 360, 363 (Pa. Super. 2008)). In Lettau, the defendant testified extensively about his actions and the actions of others, and also testified that he had relayed all of that information to police when questioned. Id. at 116. On cross-examination, the prosecutor focused on the claim that the defendant had cooperated fully with the investigation, and also asked whether the police requested that he come to the station to make a statement. Id. The question survived an objection, and ultimately the prosecution elicited Lettau's claim that he had fully cooperated with the investigation. Id. A police officer was then recalled to rebut Lettau's claim of cooperation with authorities, testifying that Lettau had refused to divulge several pieces of information initially, and had refused to come to the station to make a statement. Id.

Our Supreme Court rejected the notion that the use of pre-arrest silence that occurred in Lettau was disproportional to what was sanctioned under Bolus and DiNicola. Id. at 117. The Court held that the extensive cross-examination of Lettau and the rebuttal testimony of the officer, regarding Lettau's pre-arrest silence, were both permissible to impeach Lettau's testimony as dishonest, and as fair response to the characterization of his behavior as cooperative. Id. at 120 - 121.

An en banc panel of this Court recently addressed the issue of pre- arrest, pre-Miranda silence in Molina. After careful consideration of the divisions between the various circuits of the Federal Courts and the appellate courts of the states, this Court held that the "Commonwealth cannot use a non-testifying defendant's pre-arrest silence to support its contention that the defendant is guilty of the crime charged as such use infringes on a defendant's right to be free from self-incrimination." Id. at 62. The en banc panel stated that:

We find it of no moment whether the silence occurred before or after the arrest or before or after Miranda warnings were administered. The Fifth Amendment was enacted to protect against self-incrimination, whether they are in custody or not, charged with a crime, or merely being questioned during the investigation of a crime. We clarify that our finding does not impose a prima facie bar against any mention of a defendant's silence; rather, we guard against the exploitation of appellant's right to remain silent by the prosecution. We conclude that the government may not use such silence as substantive evidence of guilt when a defendant chooses not to testify, and such use should not be limited to "persons in custody or charged with a crime"; rather, it may also not be used against a defendant who remained silent during the investigation of a crime.

Molina, 33 A.3d at 63 (internal citations omitted).

Even more recently, in Commonwealth v. Adams, 39 A.3d 310 (Pa. Super. 2012), defense counsel objected to the Commonwealth's witness's references to Adams' silence as a violation of his constitutional rights, but the trial court overruled the objection. Id. at 315. Adams did not testify in his own defense, but defense counsel, during closing arguments, "presented to the jury a variety of reasons justifying [his] decision not to speak with" the police. Id. Then, during the Commonwealth's closing, the prosecutor made several references to Adams' silence. Id. Defense counsel did not object to the comments made by the prosecutor during closing arguments. Id.

The Adams court determined, first, that the reference to the defendant's silence was limited in that it had been "offered for a narrow purpose, namely to demonstrate the nature and focus of the investigation, and as foundational evidence demonstrating how the police came to obtain Appellant's DNA sample, which was later admitted into evidence at trial." Id. at 319. Accordingly, the Adams court concluded that the trial court's denial of defense counsel objection was not reversible error because Adams' silence wasn't being offered as substantive evidence of guilt and because Adams had not been significantly prejudiced by the reference to his silence.*fn2 Second, the Adams court also concluded that Adams had waived his claim regarding the prosecutor's reference to his silence during closing arguments.

Id. at 319. Nonetheless, the Adams court went on to determine that had the issue been properly preserved, Adams' claim would have failed because defense counsel had opened the door to fair response when he offered several excuses for his client's silence during the defense's closing argument.

The instant case is simply not analogous, on many levels, to any of our prior decisions on the topic of pre-arrest silence. The Commonwealth chose to enter Appellant's statement into evidence. The Commonwealth then chose to create the inference in the jury's minds that Appellant's accounting of the events leading to the death of the victim in the statement was inconsistent with the testimony of the Commonwealth's experts. Disputing an inference made by the Commonwealth during its case-in-chief, by revealing corroborating facts through the Commonwealth's own witness during cross-examination, as occurred in this instance, is fundamentally different from the situation observed in Lettau. Lettau's testimony implied a failure to investigate by suggesting that he had been completely forthcoming with information and cooperative with police. Arguing that Appellant's initial statement was consistent with a different theory of how the injuries were caused simply does not constitute the same type of frontal assault on the quality of the investigation that was presented in Lettau.*fn3 In Lettau, the defendant was offering different information at trial than he had during his initial statement to police, and Lettau himself made claims that he had been fully cooperative during the course of his testimony. Reference to Lettau's pre-arrest silence was necessary to reveal and rebut those falsehoods.

No such necessity has presented itself in this case. There is nothing in the record to indicate that Detective Gordon was holding back from mentioning Appellant's pre-arrest silence. Appellant had not yet testified, and so there was no basis to conclude that the Commonwealth was entitled to use his pre-arrest silence against him as impeachment or fair response. The issues raised by defense counsel during the cross-examination of Detective Gordon predominantly related to the officer's failure to investigate other potential causes of the victim's injuries, issues not readily solved by reference to Appellant's pre-arrest silence.

Still, what question of real significance, raised by defense counsel during the cross-examination of Detective Gordon, is satisfactorily resolved by reference to Appellant pre-arrest silence after the first interview? And even assuming there was such a compelling question left unresolved, why would the prosecutor not seek to allow Detective Gordon to introduce evidence of Appellant's pre-arrest silence, either as an answer to defense counsel's cross-examination questions, or by conducting another round of direct examination, as was done in Lettau? The answer, I find, is quite obvious. The prosecutor was invoking the fair response doctrine as a pretext to allow pre-arrest silence to be used as impeachment, as is evidenced by the fact that no attempt was made to have Detective Gordon expose the pre-arrest silence. The prosecutor wanted to introduce the prearrest silence through Appellant in order to maximize the prejudicial effect of such information in the eyes of the jury, or as a means by which to induce Appellant to revoke his promise to testify.

Adams, a case the Majority 'extends' to apply to the instant case, is largely irrelevant to the facts before us. In Adams, the initial reference to Appellant's pre-arrest silence was minimal, and ostensibly offered only for the limited purpose of providing context to the fact that the police had obtained a DNA sample from the defendant (this was also the only reference that elicited an objection). Furthermore, the extent of the jury's exposure to the information in Adams was known, whereas in the instant case, the trial court was giving pre-approval to unlimited use of Appellant's pre-arrest silence during testimony that had yet to occur. Furthermore, with regard to the closing statements made in Adams, it was abundantly clear that Adams' attorney focused the jury's attention on the pre-arrest silence, by repeatedly offering excuses for it. Thus, the extent of the jury's exposure to the defendant's pre-arrest silence during the closing arguments in Adams was also known, and thus more readily subjected to harmless error analysis. Instead, in this case, the trial court was permitting the prosecutor carte blanche authority to utilize Appellant's pre-arrest silence to impeach him, and this was before anyone knew what the content of Appellant's testimony was going to be. This was not a scenario that any prior cases had addressed. In each of the cases addressed by our Supreme Court (Lettau and DiNicola), and in each case this Court has had the occasion to address (Molina, Adams), an objection was lodged following the reference to pre- arrest silence, allowing the trial court the ability to address the probative- versus-prejudicial effect of the evidence at the time the reference to pre- arrest silence was exposed to the jury. Here, on the other hand, the trial court is permitting the Commonwealth to reference pre-arrest silence for the purpose of impeaching a defendant who had yet to even testify, on the basis that the Commonwealth's witness's investigation was called into question, where the Commonwealth's witness could have addressed the pre-arrest silence to resolve the fair response issue. On this basis alone I would find that the trial court abused its discretion. However, there is an additional basis on which I would find the trial court abused its discretion, one more germane to the issues actually raise by Appellant.

Appellant was placed in an extremely difficult situation, a Hobson's choice if you will, or a Catch-22. Should the defense fulfill the promise made to the jurors during the opening statement,*fn4 exposing Appellant to highly prejudicial evidence of his pre-arrest silence? Or should the defense decline to have Appellant testify, at best undermining the expectation of the jurors, or worse, exposing themselves as liars? This dilemma was wholly unnecessary, since the trial court could have permitted Detective Gordon to reference Appellant's pre-arrest silence to satiate the prosecutor's insistence in providing fair response to the cross-examination of Detective Gordon. So, not only did the trial court's ruling drastically increase the prejudicial effect of the pre-arrest silence, but it also significantly impacted Appellant's right to testify.

"At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987). Though it was not always so in the English-speaking world, where, at one time, "all parties to litigation, including criminal defendants, were disqualified from testifying because of their interest in the outcome of the trial," the right of the accused to testify on his own behalf is now recognized as being fundamental to both the detection of guilt and protection of innocence in American jurisprudence. Id. at 49 - 50.

The right to testify derives from multiple provisions in the U.S. Constitution. Id. at 51. It is "essential to due process of law in a fair adversary process." Id. (citing Faretta v. California, 422 U.S. 806, 819, n. 15 (1975)). It is also a fundamental component of the Compulsory Process Clause of the Sixth Amendment, for "[l]ogically included in the accused's right to call witnesses whose testimony is 'material and favorable to his defense,' is a right to testify himself, should he decide it is in his favor to do so." Id. at 52 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). Furthermore, [t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,' who must be 'confronted with the witnesses against him,' and who must be accorded 'compulsory process for obtaining witnesses in his favor.' Although not stated in the Amendment in so many words, the right to self-representation- to make one's own defense personally-is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

Faretta, 422 U.S. at 819-20 (footnote omitted). And finally, "[t]he opportunity to testify is also a necessary corollary to the Fifth Amendment's guarantee against compelled testimony." Rock, 483 U.S. at 52. The Pennsylvania Constitution explicitly recognizes the right to testify in Article I, Section 9: "[i]n all criminal prosecutions the accused hath a right to be heard by himself and his counsel." Pa. Const. art. I, § 9. "The right of an accused to testify on his own behalf is a fundamental tenet of American jurisprudence and is explicitly guaranteed by Article I, Section 9 of the Pennsylvania Constitution." Commonwealth v. Nieves, 746 A.2d 1102, 1105 (Pa. 2000) (citing Commonwealth v. Jermyn, 533 A.2d 74 (Pa. 1987)). While that right can be waived, "the decision of whether or not to testify on one's own behalf is ultimately to be made by the defendant after full consultation with counsel." Id. at 1104.

When the trial court's ruling gave the Commonwealth license to impeach Appellant with his pre-arrest silence, pressure was placed on Appellant not to testify in a situation where he had already promised the jury he would testify. As stated above, this was a wholly unnecessary reaction to the Commonwealth's fair response argument, since it was Detective Gordon's cross-examination that gave rise to the issue of fair response, making him the more obvious conduit for revealing the pre-arrest silence. Impeaching Appellant with his pre-arrest silence would risk, in the eyes of the jury, implying that Appellant was guilty because he exercised his right to remain silent when it became clear he was going to be the target of a criminal investigation. The use of pre-arrest silence under the fair response doctrine does not permit such a use, and our Commonwealth's reverence for the right to remain silent should not be so easily thwarted by talismanic invocation of the doctrine of fair response.

I would hold that the trial court, when confronted with the Commonwealth's arguments regarding fair response as occurred in this case, abused its discretion because the remedy it afforded the Commonwealth unduly burdened Appellant's decision whether to testify. There is certainly a multitude of scenarios that might occur whereby an evidentiary ruling could be construed as having impacted a defendant's decision to testify, and I would not be inclined to afford relief purely on some tenuously drawn relationship between a particular ruling and the defendant's decision not to testify. However, this Court is presented with a unique set of circumstances that, in combination, lead me to the conclusion that relief is warranted under the facts of this case.

First, there was a presumption created in the jury's minds that Appellant would testify in this case. That factor would never be a sufficient basis for affording relief alone, for the obvious reason that a defendant naturally risks, during the course of events that transpire during a trial, that his inclination to testify might be yield to strategic or tactical decisions that counsel him against such testimony. However, because Appellant's intention to testify was known to the trial court, and because the pressure exerted against that inclination to testify was unnecessary and premature, this factor weighs in favor of finding that his decision whether to testify was unduly burdened.

Second, the decision to afford the Commonwealth the right to use Appellant's pre-arrest silence could have been fulfilled by introducing it through Detective Gordon. Instead, the Commonwealth was armed with potent, prejudicial ammunition to use during Appellant's testimony. The heart of the Commonwealth's fair response argument was that Detective Gordon's investigation was hampered by Appellant's failure to answer questions after the first interview. The pressure placed upon Appellant's decision whether to testify was a wholly avoidable consequence stemming from the trial court's discretion in fashioning a remedy. The use of the pre- arrest silence to impeach Appellant, rather than allowing it to be admitted through the testimony of Detective Gordon in response to questions regarding the quality of the investigation, does not fulfill the purpose of the fair response doctrine.

Third, largely due to the preemptive/premature nature of the trial court's ruling, the extent of the use of the pre-arrest silence and the nature of the testimony it was being allowed to impeach were purely speculative or indeterminate at the time the trial court issued its ruling. Had the trial court's ruling been sufficiently narrow and limited as to ensure that the use of pre-arrest silence during cross-examination of Appellant would not be just an indirect means by which the pre-arrest silence would be used as substantive evidence of guilt, I could conclude that the prejudice and burden on Appellant's right to testify was sufficiently mitigated as to constitute harmless error. Because the remedy was not narrowly tailored, the effect of the trial court's decision on the outcome of the trial is too speculative to consider harmless.*fn5

In conclusion, I dissent from the Majority's decision because application of the fair response doctrine in this case extends far beyond what was authorized in prior rulings of the Pennsylvania Courts. I also dissent because the remedy afforded the Commonwealth by the trial court, assuming the doctrine of fair response was applicable, was nonetheless incongruous with the harm the Commonwealth sought to rectify, as Detective Gordon was better situated to give "fair response" by reference to Appellant's pre-arrest silence. And I dissent because the trial court's ruling unduly burdened Appellant's right to testify.

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