Argued September 10, 2013
Appeal from the Order of the Superior Court entered January 20, 2012 at No. 2464 EDA 2009 which Vacated/Remanded the Judgment of Sentence of Delaware County Court of Common Pleas, Criminal Division, entered July 14, 2009 at No. 23-CR-0002312-2008. Appeal allowed July 17, 2012 at 135 MAL 2012. Trial Court Judge: Ann A. Osborne, Judge. Intermediate Court Judges: Correale F. Stevens, President Judge. Jacqueline O. Shogan, Cheryl Lynn Allen, JJ.
For Shataan Adams, APPELLANT: William Patrick Wismer, Esq.
For Commonwealth of Pennsylvania, APPELLEE: George Michael Green, Esq., Delaware County District Attorney's Office; John Francis X. Reilly, Esq., Delaware County District Attorney's Office; John Joseph Whelan, Esq., Delaware County District Attorney's Office
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 Eakin joins the opinion. Mr. Chief Justice Castille files a concurring opinion. Mr. Justice Saylor files a dissenting opinion. Madame Justice Todd files a dissenting opinion.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
MR. BAER, JUSTICE
We granted review to consider whether the right against self-incrimination, as protected by the United States and Pennsylvania constitutions, is implicated when a Commonwealth witness, such as an investigating detective, testifies without adverse implication that the defendant refused to answer questions prior to arrest. As previously observed in Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329, 336-337 (Pa. 2005), and Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 478 (Pa. 1998), we reiterate that a mere reference to pre-arrest
silence does not constitute reversible error where the prosecution does not exploit the defendant's silence as a tacit admission of guilt. But cf, Commonwealth v. Molina, 104 A.3d 430, (J-55-2013) (Pa. 2014) (plurality opinion addressing the question of whether an arguably exploited reference to a defendant's pre-arrest silence violated the defendant's right against self-incrimination under the Pennsylvania Constitution). Accordingly, we affirm the decision of the Superior Court concluding that the defendant's constitutional rights were not violated by the detective's testimony in this case.
In the Highland Garden neighborhood of the City of Chester, during the evening of September 27, 2007, O'Neil Blackwood (Victim) suffered a fatal gunshot wound to his head during a burglary of his home by three assailants who intended to steal cash and drugs from Victim. The assailants also assaulted his wife, while their young children were upstairs in the home. Mrs. Blackwood identified Shaatan Adams (Defendant), who lived in the neighborhood, as one of the assailants, although his face was covered by a clear or flesh-toned mask. Moreover, at trial, one of Defendant's co-conspirators testified against him in exchange for a reduction of charges. A neighbor also testified to overhearing Defendant and the other assailants preparing for the crime.
As is relevant to the issue at bar, a detective investigating the crime testified as follows:
[Assistant District Attorney (" ADA" )]: During your investigation, did you have the occasion to locate [Defendant]?
[ADA]: Do you recall what date that was?
[Sergeant]: I believe it was October 19, 2007.
[ADA]: And on that date were you with anyone else?
[Sergeant]: Detective Slowik.
[ADA]: And did you attempt to interview [Defendant]?
[Sergeant]: Yes we did; however, he didn't want to speak to us at that time.
[ADA]: Did you identify yourselves as law enforcement?
[Sergeant]: Yes. We identified ourselves and told him that we'd like to interview him in reference to [Victim's] homicide and that his name came up in the matter.
[ADA]: And in response to that what did he say?
[Sergeant]: He said he had nothing to say.
[ADA]: What then - did you have a further ...