Argued September 10, 2013
Appeal from the Order of the Superior Court entered November 9, 2011 at No. 1948 WDA 2007, reversing and vacating the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered March 15, 2007 at CP-02-CR-0007403-2004 and CP-02-CR-0009547-2004 and remanding. Trial Court Judge: David R. Cashman, Judge. Intermediate Court Judges: Correale F. Stevens, President Judge, Kate Ford Elliott, President Judge Emeritus, John L. Musmanno, John T. Bender, Susan Peikes Gantman, Christine Donohue, Cheryl Lynn Allen, Anne E. Lazarus, Judith F. Olson, JJ.
For Commonwealth of Pennsylvania, APPELLANT: Francesco Lino Nepa, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office.
For Pennsylvania District Attorney's Association, APPELLANT AMICUS CURIAE: Heather F. Gallagher, Esq., Lehigh County District Attorney's Office; Shawn C. Wagner, Esq., Office of the District Attorney.
For Michael Molina, APPELLEE: Thomas N. Farrell, Esq.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE BAER. Mr. Justice Stevens did not participate in the consideration or decision of this case. Former Justice McCaffery did not participate in the decision of this case. Mr. Justice Saylor files a concurring opinion in which Madame Justice Todd joins. Mr. Chief Justice Castille files a dissenting opinion. Mr. Justice Eakin files a dissenting opinion.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
MR. BAER, JUSTICE
We granted review in this case to consider whether a defendant's right against self-incrimination, as protected by the federal and Pennsylvania constitutions, is violated when the prosecution utilizes a non-testifying defendant's pre-arrest silence as substantive evidence of guilt. After reviewing this issue of first impression, to which the United States Supreme Court has not definitively spoken, we agree with the Superior Court, as well as several of our sister courts, that the use of pre-arrest silence as substantive evidence of guilt violates a non-testifying defendant's constitutional rights. As discussed below, we would affirm the order of the Superior Court remanding for a new trial. However, given that the status of federal jurisprudence is uncertain, we base our holding upon the right against self-incrimination set forth in Article I, Section 9 of the Pennsylvania Constitution.
In this case, a jury convicted Michael Molina (Defendant) of third degree murder and related crimes resulting from the savage beating of Melissa Snodgrass (Victim), apparently as a result of drug debts owed by Victim to Defendant. On September 7, 2003, Victim told her mother, with whom she lived, that she was leaving the house to run some errands. When she did not return, Victim's mother reported her disappearance to the Missing Persons Unit of the Pittsburgh Police Department. Six months later, her decomposed remains were found under moldy clothing and other debris in the basement of a house in the Spring Garden section of Pittsburgh in which Michael Benintend, one of the prosecution's primary witnesses, resided during the relevant time period.
The issue presented to this Court requires consideration of the Missing Persons Unit detective's testimony and the prosecutor's closing arguments regarding the early days of the investigation into Victim's disappearance. Following a lead that Defendant was holding Victim against her will, the Missing Persons Unit detective assigned to the case went to Defendant's house two days after Victim's disappearance. Pamela Deloe, a second primary prosecution witness, answered the door and asserted that neither Victim nor Defendant were at the house. Accordingly, the detective left her card and asked that Defendant call her. Later that day, Defendant called the detective.
The detective testified regarding the phone call from Defendant:
I asked him -- well, before I could even ask him if he was aware of [Victim] being missing, he stated to me that there were -- that he didn't know where she was. It was out on the street that someone said that he was involved in her being missing and it wasn't him.
Notes of Testimony (" N.T." ), Dec. 14-20, 2006, at 480. The detective then inquired as to when Defendant had last seen Victim. He initially responded that he had not seen her for a year and a half, but then he immediately contradicted his statement, claiming instead that he had not seen her for three months. Subsequent to this contradiction, the detective testified that she asked him to come to the police station to speak to her and he refused:
A. Yes. After he stated that, I asked him if he could come into our office and sit down and talk with me about the case, and he refused. He said he refused to come in.
Q. So this contact that you had with him was over the telephone. Is that what you're saying?
A. Yes, it was over the telephone.
Id. at 481. Defense counsel did not object to the reference to Defendant's refusal to come into the office. In due course, the prosecution concluded its questioning of the detective, and defense counsel did not pursue that issue in his cross-examination. Id. at 482-85.
During closing argument, the prosecutor accentuated Defendant's refusal to go to the police station, and when defense counsel objected, the prosecutor stated before the jury that it was not improper to comment on Defendant's pre-arrest silence:
[Prosecutor:] Look also at what happened in terms of the police investigation in this matter. Three days after this young lady goes missing, three days after she goes missing, detectives are already knocking on the defendant's door because of something they heard, maybe he was holding this person
against their [sic] will, and he calls the police back and is very defensive. I mean, before a question's even asked, he denies 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 officer 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?
[Defense Counsel]: Your Honor, I have to object to that. That's improper comment, absolutely improper.
[Prosecutor]: Your Honor, pre-arrest silence is not improper comment at all.
Id. at 579-80.
In a brief sidebar discussion, defense counsel requested that the jury be instructed to disregard the statement, which the defense viewed as " absolutely improper; " " If somebody wants to assert their right not to cooperate and talk to the police, that cannot be commented upon." Id. at 580. Notably, defense counsel did not seek a mistrial at this juncture. The prosecution responded " there's a sharp line drawn between pre-arrest silence and post-arrest silence." Id. at 581. The court allowed the prosecution to proceed without issuing any instructions. Id. The prosecutor further emphasized the silence following the sidebar, stating, " Factor that in when you're making an important decision in this case as well." Id.
The jury found Defendant not guilty of first-degree murder but convicted him of third-degree murder and unlawful restraint based substantially on the eyewitness testimony of Benintend and Deloe, who claimed to have witnessed Defendant brutally beat Victim to death. The trial court sentenced him to twenty to forty years of imprisonment. Defendant appealed the judgment of sentence, raising four issues in his Pa.R.A.P. 1925(b) concise statement of issues presented on appeal, including the claim currently before this Court: whether the trial court erred in not sustaining the objection to the prosecution's reference to Defendant's pre-arrest silence and in not declaring a mistrial.
In its Pa.R.A.P. 1925(a) opinion, the trial court considered precedent from this Court and the United States Supreme Court regarding the right against self-incrimination, which will be discussed in detail below, and highlighted the distinction between pre- and post-arrest silence. After reviewing this precedent, the trial court briefly addressed whether it erred in allowing the prosecutor's statements during closing arguments and also considered whether it should have granted a mistrial sua sponte, because of the statements. The court opined that the prosecutor " did nothing more than talk about the police investigation and provide information to the jury which would allow them to assess the credibility of [Defendant's] 'testimony.'"
Tr. Ct. Op. at 30.
The court used the term " [Defendant's] 'testimony'" to describe the detective's summary of her phone call with Defendant, as Defendant did not take the witness stand in his own defense during trial. The trial court also concluded that it did not err in not granting a mistrial sua sponte, concluding that the detective's testimony did not prejudice Defendant. The court attempted to distinguish the facts of this case from those in which Fifth Amendment protection has been granted, observing that when Defendant spoke to the detective " the police were unsure if any crime had been committed for which [Defendant] could have been charged." Tr. Ct. Op. at 31.
Defendant appealed to the Superior Court challenging the use of his pre-arrest silence as substantive evidence of guilt. A three-judge panel initially heard the appeal and reversed Defendant's conviction. Upon the Commonwealth's motion, the court granted reargument en banc, and again reversed the trial court, concluding that Defendant's state and federal rights against self-incrimination were violated when the Commonwealth " urge[d] the jury to use a non-testifying defendant's pre-arrest, pre-Miranda silence as substantive evidence of his guilt." Commonwealth v. Molina, 2011 PA Super 237, 33 A.3d 51, 53 (Pa. Super. 2011) (footnote omitted).
The Superior Court recognized that Defendant's argument was limited to claiming that the prosecutor's closing argument violated his right against self-incrimination and did not contend that the detective's testimony itself was improper. It noted that the detective's testimony merely provided an account of the extent of the police investigation of Victim's disappearance as it related to Defendant and was not used to imply an admission of guilt at the time of the testimony. In contrast, the court opined that the prosecutor used the testimony in closing as substantive evidence of Defendant's guilt. Id. at 56, 61.
Prior to determining whether this use violated Defendant's rights, the Superior Court conducted a thorough review of the caselaw relating to the right against self-incrimination. The court identified four distinct time periods during 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," which the court considered in reverse order. Id. at 57.
The court recognized that defendants have an " absolute right to remain silent and to not present evidence" at trial and that prosecutors cannot comment on a defendant's refusal to testify. Id.; see generally Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Turning to post-Miranda, pre-trial silence, the court acknowledged that this Court and the High Court have held that the prosecution cannot reference a defendant's pre-trial silence following the reading of Miranda warnings, even when the defendant
chooses to testify. Molina, 33 A.3d at 58 (citing Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)).
In considering the time period between arrest and the provision of Miranda warnings, the Superior Court found the caselaw to be more muddled than the first two time frames. It recognized that the United States Supreme Court in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), found no violation of a defendant's right against self-incrimination when the prosecution used a defendant's post-arrest, pre-Miranda warning silence to impeach a defendant's testimony at trial, but observed that the High Court has not considered whether such silence can be used as substantive evidence of guilt when the defendant does not testify. Moreover, the Superior Court observed that this Court in Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537, 540 (Pa. 1982), concluded that the Pennsylvania Constitution protected a defendant's silence during the post-arrest, pre-Miranda period, even precluding the use of a defendant's silence to impeach his trial testimony, and opined that the right against self-incrimination preexists Miranda warnings.
Turning to the pre-arrest period relevant to the case at bar, the Superior Court acknowledged that the United States Supreme Court found in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), that the prosecution did not violate a defendant's due process rights or the right against self-incrimination when it referenced the defendant's pre-arrest silence while impeaching the defendant's testimony at trial. The court further noted that this Court relied upon Jenkins in Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (Pa. 1996), when it likewise held that impeachment of a defendant's testimony with reference to pre-arrest silence does not violate a defendant's right against self-incrimination under the Pennsylvania Constitution, but did not speak to whether the silence could be used as substantive evidence of guilt if the defendant did not testify. Moreover, the court recognized that in Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (Pa. 2005), we held that the prosecution could use a defendant's pre-arrest silence not only to impeach a defendant's testimony but as fair response to defense arguments.
The Superior Court acknowledged that none of the above-referenced cases addressed a defendant's pre-arrest silence where the defendant had neither waived his right to self-incrimination by testifying nor opened the door to the Commonwealth's use of his silence as a fair response to defense arguments. Additionally, the court observed that the federal circuit courts and state courts are divided upon this issue. Molina, 33 A.3d at 62 (collecting cases). The Superior Court concluded that Pennsylvania should align itself with those jurisdictions which have held that the use of a non-testifying defendant's pre-arrest silence as substantive evidence of guilt violates the defendant's right against self-incrimination. The Superior Court opined, " If the prosecution were allowed to suggest guilt at trial from a defendant's silence during the pre-arrest stage, silence would essentially equate to an admission of guilt." Id. at 64.
Accordingly, the Superior Court held that, while the detective's testimony, in and of itself, did not violate the right against self-incrimination, the right was violated when the prosecutor utilized Defendant's refusal to speak further with the detective as substantive evidence of his guilt in his closing argument. The court further concluded that the trial court's error was not harmless. Rather than constituting the overwhelming evidence necessary to meet the Commonwealth's burden
of proving harmless error, the Superior Court found the Commonwealth's case to be based upon the testimony of Benintend and Deloe, both of whose credibility was significantly challenged at trial. Accordingly, the Superior Court reversed the convictions and vacated the judgment of sentence.
Then-President Judge, now-Justice Stevens dissented, concluding that Defendant did not have a protected interest in remaining silent pre-arrest and, even if he did, the Commonwealth did not use his silence as substantive evidence of guilt in this case. The dissent emphasized that neither this Court nor the United States Supreme Court has found a " protected, constitutional interest in one's decision to remain silent in the pre-arrest, pre-Miranda setting" or " to remain silent in all of one's interactions with police." Id. at 71 (Stevens, P.J., dissenting). Instead, the dissent opined that the privilege against self-incrimination is " irrelevant" to the decision to remain silent when the individual is " under no official compulsion to speak." Id. Even assuming arguendo that Defendant had a protected interest, the dissent concluded that the Commonwealth did not use his silence as substantive evidence of guilt because it never " specifically invite[d] the jury to infer guilt from [Defendant's] silence." Id. at 72. Moreover, the dissent emphasized that the jury is presumed to follow the instructions of the court, which included a prohibition against viewing the statements of counsel as evidence and an acknowledgment that Defendant had a right not to testify. Alternatively, the dissent opined that it would find any error harmless in light of the evidence presented by the Commonwealth and the de minimis nature of the reference to Defendant's silence.
The Commonwealth filed a petition for allowance of appeal, and this Court granted review to consider whether " the Superior Court err[ed] in ruling that the use by the Commonwealth of a non-testifying defendant's pre-arrest silence as substantive evidence of his guilt infringes upon his constitutional right to be free from self-incrimination?" Commonwealth v. Molina, 616 Pa. 547, 51 A.3d 181, 182 (Pa. 2012).
I. Salinas v. Texas
In February 2013, we placed the case on hold pending the decision of the United States Supreme Court in
Salinas v. Texas, which, inter alia, raised a claim regarding the use of pre-arrest silence as substantive evidence. As discussed below, the plurality decision of the High Court in that case did not resolve the issue, but instead affirmed the use of the defendant's silence in a fractured decision. Salinas v. Texas, U.S., 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). Prior to hearing argument, we allowed the parties to submit supplemental briefing addressing Salinas.
Salinas involved a defendant who was interviewed by police regarding a double murder in Houston. At the time of the interview, Salinas had not been arrested nor provided Miranda warnings. Initially, Salinas answered the officer's questions. However, when the officers inquired whether the shotgun shell casings recovered from the scene would match Salinas's gun, he " [l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up." Id. at 2178 (brackets in original). " After a few moments of silence, the officer asked additional questions, which petitioner answered." Id.
While the High Court had accepted review in Salinas to resolve the split between the lower courts regarding the applicability of the Fifth Amendment to the use of a nontestifying defendant's precustodial silence as substantive evidence of
guilt, it eventually divided on how to resolve the case. Three justices in the lead opinion did not speak to the use of pre-arrest silence as substantive evidence and instead dismissed Salina's claims because " he did not expressly invoke the privilege against self-incrimination in response to the officer's question." Id. at 2178. Two concurring justices did not address the issue of express invocation, but opined that " Salinas' claim would fail even if he had invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony." Id. at 2184 (Thomas, J., concurring). Finally, four dissenting justices determined that no ritualistic language was needed to invoke the right against self-incrimination, which was implied by the circumstances, and concluded that Salina's right was violated. Id. at 2189-2191. Accordingly, as three justices opined that Salinas did not properly invoke his privilege and two justices concluded that the privilege never applies to pre-arrest silence, five justices held that Salinas should not obtain relief. Given the absence of a majority on any rationale, the splintered decision, however, fails to provide guidance as to whether pre-arrest silence is ever protected under the Fifth Amendment if sufficiently invoked or what constitutes sufficient invocation of the right.
A search of our caselaw interpreting both the state and federal protections does not reveal any prior insistence by this Court that there be an express invocation of the right against self-incrimination. Instead, our precedent is more aligned with the dissenting four justices in Salinas, who concluded that the no ritualistic language is needed but rather found that invocation of the right may be apparent from the circumstances surrounding the defendant's statement. See, e.g., Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 529-31 (Pa. 2005) (viewing statement " I don't think I better talk about that" as invocation of right to remain silent after initial waiver of Miranda rights).
As applied to this case, we determine that Defendant's actions in affirmatively and definitively refusing to come to the police station and ending the phone call were sufficient to invoke his right against self-incrimination and are distinguishable from Salinas's temporary muteness sandwiched between voluntary verbal responses to police questioning. Defendant's invocation is clarified upon consideration of the circumstances of the case. Regardless of whether Defendant had been officially designated a suspect, the detective's testimony demonstrated that Defendant and the detective were aware during the phone call that " [i]t was out on the street that someone said that [Defendant] was involved in her being missing." N.T., Dec. 14-20, 2006, at 480. Indeed, the prosecutor's closing argument emphasized the detectives' suspicions, noting that three days after Victim's disappearance, they were " knocking on the defendant's door because of something they heard, maybe he was holding this person against their [sic] will." Id. at 579. Moreover, it appears that the detective's suspicions were further raised when Defendant contradicted himself in regard to when he had last seen Victim, prompting her to request that he come to the station. Thus, at the least, both parties to the phone call were aware that he was suspected in the disappearance of Victim, even though the detective was unaware that the case involved a murder. We conclude that refusing to come to the police station to speak further with a detective and ending the phone call, in light of the circumstances of the case, constitutes an invocation of his right against self-incrimination, even absent a
talismanic invocation of the constitutional provision.
II. Constitutionality of the Use of Pre-Arrest Silence as Substantive Evidence
Turning to the issue upon which we granted review, the Commonwealth maintains that the Superior Court erred in concluding that the prosecutor's reference to Defendant's pre-arrest silence violated his right against self-incrimination. The Commonwealth claims that this Court has drawn a line of significance between pre- and post-arrest silence, and that the " privilege against self-incrimination" does not extend backward from the post-arrest period to cover the pre-arrest timeframe scrutinized herein. Commonwealth's Brief (" Com. Brief" ) at 17. In support, the Commonwealth recounts the development of case law in the United States Supreme Court and this Court, noting that neither court has prohibited the use of a defendant's pre-arrest silence as substantive evidence of guilt. The Commonwealth emphasizes that the High Court, in Fletcher, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490, held that the Fifth Amendment protection does not apply to post-arrest, pre-Miranda warning silence if the silence is used to impeach the defendant's testimony at trial. The Commonwealth observes that the High Court distinguished Fletcher from Doyle, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, where the Court had previously concluded that the defendant's due process rights would be violated by the use of defendant's silence after he had been assured of his right to remain silent through the provision of Miranda warnings.
Addressing our precedent, the Commonwealth acknowledges that this Court in Turner, 499 Pa. 579, 454 A.2d 537, rejected the United States Supreme Court's analysis in Fletcher and instead found that the Pennsylvania Constitution prohibited adverse comment upon a defendant's silence in post-arrest, pre-Miranda cases, where the Commonwealth attempts to impeach a defendant's testimony at trial. It emphasizes, however, that this Court refused to extend that protection in Bolus, 545 Pa. 103, 680 A.2d 839, to pre-arrest silence in impeachment cases, instead finding persuasive the decision in Jenkins, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (concluding no due process or Fifth Amendment violation when using defendant's pre-arrest silence as impeachment evidence). The Commonwealth contends that the sole distinguishing factor between our decisions in Turner and Bolus is the timing of the silence in relation to the arrest.
Noting that Bolus did not provide any rationale for the distinction between pre- and post-arrest, the Commonwealth ventures that the distinction is based upon the proposition that a defendant in custody is compelled to give evidence against himself. The Commonwealth emphasizes that the United States Supreme Court relied heavily on the issue of compulsion in Miranda. In contrast, the Commonwealth argues that defendants in the pre-arrest setting have not been removed from their normal surroundings and are not in custody such that one is " not under any compulsion to incriminate himself." Com. Brief at 23. The Commonwealth relies upon Justice John Paul Stevens' concurring opinion in Jenkins where he stated, " the privilege against compulsory self-incrimination is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak." Id. at 24 (quoting Jenkins, 447 U.S. at 241 (Stevens, J., concurring)). Applying this language to the facts of this case, the Commonwealth contends:
Given that [Defendant] was not only not under arrest when speaking with [the detective] but also not surrounded by
antagonistic forces - rather, he was in his own home and talking to the officer on the phone during a call that he voluntarily made - there would seem to be no question that he was not in any way compelled to incriminate himself at that point.
Com. Brief at 25. Accordingly, the Commonwealth urges the Court to align with jurisdictions which have found the Fifth Amendment does not prohibit the use of pre-arrest silence as substantive evidence.
In response, Defendant urges this Court to affirm the Superior Court and follow those jurisdictions that have found that the use of a non-testifying defendant's pre-arrest silence as substantive evidence of guilt is violative of the right against self-incrimination under both the federal and state constitutions. Defendant rejects the Commonwealth's reliance on Miranda to suggest that the Fifth Amendment does not provide protection prior to arrest. Instead, the Defendant contends that the concern with the post-arrest period in ...