COMMONWEALTH OF PENNSYLVANIA, Appellant v. MICHAEL MOLINA, Appellee, #25 WAP 2012, 2014 WL 6477607. was an appeal from a ruling of the Superior Court, per Judge Ford Elliott, sitting en banc, #1948 WDA 2007, 33 A.3d 51 (Pa. Super. 2011), reversing and vacating a Judgment of Sentence of Judge Cashman of the Court of Common Pleas of Allegheny County, CP-02-CR-0007403-2004 and CP-02-CR-0009547-2004. MR. JUSTICE BAER wrote an Opinion for himself as a plurality of a five Justice Court although the two concurring Justices joined in the holding; two justices dissented. Thomas N. Farrell, Esq. of Pittsburgh represented the Appellee.
During a homicide investigation, the chief detective testified that she had a discussion with Molina, the prime suspect, and then asked him to come down to police headquarters so she could interview him but he refused. Molinas did not testify at the trial. At closing argument, counsel for the Commonwealth commented on Molina’s refusal to cooperate with the Detective, as follows:
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?
Defense counsel objected but 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….” The jury found Molina guilty of third-degree murder.
The Court had to consider whether a defendant’s right against self-incrimination, as protected by the Pennsylvania Constitution, is violated when the prosecution utilizes a non-testifying defendant’s pre-arrest silence as substantive evidence of guilt, an issue of first impression and one in which the United States Supreme Court has not definitively spoken. The Court held that the use of pre-arrest silence as substantive evidence of guilt violates a non-testifying defendant’s constitutional rights under Article I, Section 9 of the Pennsylvania Constitution. This rule of law precludes the prosecution from using a defendant’s pre-arrest silence as substantive evidence of guilt regardless of whether an invocation of that right may be discerned. Importantly, the Opinion rejected the Commonwealth’s argument that the prohibition against the use of a defendant’s silence applies only to post-arrest or post- Miranda situations: “The timing of the silence, whether it be pre or post-arrest, or pre or post-Miranda warnings, is not relevant to the question of whether a prosecutor’s use of the silence as substantive evidence of guilt violates an individual’s right against self-incrimination.”
Thus the Commonwealth cannot use a defendant’s pre-arrest silence as substantive evidence of guilt when a defendant chooses not to testify, unless it falls within an exception such as impeachment of a testifying defendant or fair response to an argument of the defense. Furthermore, 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.
Since the prosecutor deliberately exploited Molina’s silence by asking the jury to infer guilt from the fact that he refused to go to the police station to be interviewed, the prejudice to Molina cannot be considered de minimis. The fact that the jury was persuaded to acquit Molina of the most serious charges while convicting him of others cannot rule out the possibility that the jury was not overwhelmed by the credibility of the testifying witnesses. Since this possibility cannot be ruled out beyond a reasonable doubt, the error was not harmless.
Incidentally, it is worthwhile to note that the Opinion of the Superior Court, which was affirmed by the Supreme Court, disagreed with the trial court’s suggestion that Molina had waived the issue of whether the trial court erred in not granting a mistrial because trial counsel did not specifically ask for it, and cited Commonwealth v. McGeth, 622 A.2d 940, 943 (1993) ( “when an objection is overruled, failing to request curative instructions or a mistrial does not result in waiver”), affirmed, 535 Pa. 546, 636 A.2d 1117 (1994) and Commonwealth v. Lettau, 604 Pa. 437, 986 A.2d 114 (2009). In Lettau, the court found that due to a lack of objection to the direct examination of the investigating officer or the prosecutor’s closing argument referring to the defendant’s pre-arrest silence, the defendant failed to preserve for appellate review a claim that his constitutional right to remain silent was violated. In this case, a prompt objection was made during closing argument at the time the prosecution sought to use Molina’s pre-arrest silence as evidence of guilt and the claim was deemed preserved.