Commonwealth v. Molina

Full title: COMMONWEALTH OF PENNSYLVANIA, Appellant v. MICHAEL MOLINA, Appellee

Court: SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

Date published: Nov 20, 2014

628 Pa. 465 (Pa. 2014)

104 A.3d 430

Opinion

No. 25 WAP 2012

11-20-2014

COMMONWEALTH of Pennsylvania, Appellant, v. Michael MOLINA, Appellee.

Francesco Lino Nepa, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Commonwealth of Pennsylvania. Heather F. Gallagher, Esq., Lehigh County District Attorney's Office, Shawn C. Wagner, Esq., Office of the District Attorney, for Pennsylvania District Attorney's Association, amicus curiae. Thomas N. Farrell, Esq., Pittsburgh, for Michael Molina.

Justice BAER.

Francesco Lino Nepa, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Commonwealth of Pennsylvania.

Heather F. Gallagher, Esq., Lehigh County District Attorney's Office, Shawn C. Wagner, Esq., Office of the District Attorney, for Pennsylvania District Attorney's Association, amicus curiae.

Thomas N. Farrell, Esq., Pittsburgh, for Michael Molina.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice BAER.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 481.¹ 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.

1 We observe that the detective was not questioned as to exactly how the refusal was phrased or whether it implied an assertion of Defendant's rights against self-incrimination.

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.² The trial court sentenced him to twenty to forty years of imprisonment.³ 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.

2 The details of their testimony are not relevant to the primary issue before this Court, but will be discussed in conjunction with the harmless error analysis, infra at 453–54.

3 The trial court granted the defense motion for acquittal on the charge of criminal conspiracy to commit criminal homicide. On the same date, the court sentenced Defendant to four to eight years of imprisonment for aggravated assault, simple assault, and unlawful restraint for conduct related to witness Pam Deloe to which Defendant had pled guilty.

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 ⁴ silence as substantive evidence of his guilt.” Commonwealth v. Molina, 33 A.3d 51, 53 (Pa.Super.2011) (footnote omitted).

4 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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.⁵ 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.

5 The Superior Court also rejected the Commonwealth's waiver argument stemming from counsel's failure to object to the detective's testimony. Although the Commonwealth addresses this issue in a footnote, our grant of review does not extend to that question.

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.⁶ 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) ).

6 While the Superior Court's holdings were based primarily on the Fifth Amendment to the United States Constitution, we recognize that the Fifth Amendment provides the minimum level of protection of individual rights. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 894 (1991). As noted, our holding today is based on the Pennsylvania Constitution.

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 (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 (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 (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 (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 non-testifying 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 Salinas'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 Salinas'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 (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, 100 S.Ct. 2124 (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 prearrest silence as substantive evidence.^{7 , 8}

7 In support, the Commonwealth relies upon the following decisions of our sister courts: United States v. Oplinger, 150 F.3d 1061 (9th Cir.1998), overruled on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir.2010) ; United States v. Zanabria, 74 F.3d 590 (5th Cir.1996) ; State v. Lopez, 230 Ariz. 15, 279 P.3d 640, 645 (Ct.App.2012) ; State v. Leecan, 198 Conn. 517, 504 A.2d 480 (1986) ; People v. Schollaert, 194 Mich.App. 158, 486 N.W.2d 312 (1992) ; State v. Borg, 806 N.W.2d 535 (Minn.2011) ; State v. Helgeson, 303 N.W.2d 342 (N.D.1981) ; State v. LaCourse, 168 Vt. 162, 716 A.2d 14 (1998).

8 The Pennsylvania District Attorneys Association filed an amicus curiae brief in support of the Commonwealth.

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.⁹ 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 Miranda was based on the need for all defendants to be aware of their rights, not to suggest that the rights do not exist prior to arrest.

9 Defendant relies upon the following decisions of our sister courts: Combs v. Coyle, 205 F.3d 269 (6th Cir.2000) ; United States v. Burson, 952 F.2d 1196 (10th Cir.1991) ; Coppola v. Powell, 878 F.2d 1562 (1st Cir.1989) ; United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.1987) ; People v. Rogers, 68 P.3d 486 (Colo.App.2002) ; People v. Welsh, 58 P.3d 1065 (Colo.App.2002) ; State v. Moore, 131 Idaho 814, 965 P.2d 174 (1998) ; Commonwealth v. Thompson, 431 Mass. 108, 725 N.E.2d 556 (2000) ; State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990) ; State v. Cassavaugh, 161 N.H. 90, 12 A.3d 1277 (2010) ; State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335 (2004) ; State v. Palmer, 860 P.2d 339, 349 (Utah Ct.App.1993) ; State v. Easter, 130 Wash.2d 228, 922 P.2d 1285 (1996) ; State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703 (1982) ; Tortolito v. State, 901 P.2d 387 (Wyo.1995).

He avers that if the prosecution is allowed to argue pre-arrest silence as evidence of guilt, then:

[A] person being questioned by the police has no right to stop answering questions posed by the police and must tell the truth. Thus, under this new law posed by the Commonwealth, persons will be required to confess unless they are

innocent because the failure to talk and/or the failure to tell the truth will result in an instruction at trial to the jury that the defendant's response to the police questioning should be considered consciousness of guilt.

Defendant's Brief at 18.

Moreover, Defendant contends that to provide protection of the right against self-incrimination only upon arrest places the right inappropriately in the hands of the police. According to the Defendant, the police will interview a suspect prior to arrest in order to obtain either a statement or silence, knowing that the individual's pre-arrest silence can be used as evidence of guilt at trial, even though the same silence could not be used if it occurred the moment after arrest. Accordingly, Defendant urges this Court to affirm the Superior Court's decision that the prosecutor's use of his pre-arrest silence as substantive evidence violated his right against self-incrimination.

Accordingly, we consider whether the trial court committed reversible error in allowing the prosecutor, over defense counsel's objection, to use a non-testifying defendant's pre-arrest silence as substantive evidence of guilt because such use violated the defendant's constitutional right to be protected from self-incrimination. “As this is an issue involving a constitutional right, it is a question of law; thus, our standard of review is de novo, and our scope of review is plenary.” Commonwealth v. Baldwin, 619 Pa. 178, 58 A.3d 754, 762 (2012).

Initially, we recognize that the constitutionality of the use of pre-arrest silence as substantive evidence has split the federal circuit courts and state courts, engendering numerous fractured decisions across the United States. While the United States Supreme Court accepted review of Salinas to resolve the issue, it appears to have created a new question regarding the sufficiency of invocation of the right under the Fifth Amendment without resolving whether the Fifth Amendment applies to the use of pre-arrest silence as substantive evidence of guilt, even if properly invoked.When the federal constitutional jurisprudence has been unclear or in a state of flux, “this Court has not hesitated to render its independent judgment as a matter of distinct and enforceable Pennsylvania constitutional law.” Pap's A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 607 (2002) (addressing freedom of expression) (citing Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (1992) (extending double jeopardy protection under Pennsylvania Constitution) and Ins. Adjustment Bureau v. Ins. Comm'r, 518 Pa. 210, 542 A.2d 1317, 1324 (1988) (addressing commercial speech)). Similarly, we have recognized that decisions based on Pennsylvania's Declaration of Rights “ensure [s] future consistency in state constitutional interpretation, since federal law is always subject to change.” Commonwealth v. Lewis, 528 Pa. 440, 598 A.2d 975, 979 n. 8 (1991) (holding that defendant's rights under Article I, Section 9 were violated by the failure to provide a no-adverse inference instruction).

When considering the rights provided by the Pennsylvania Constitution, we are ever cognizant that the federal constitution provides the minimum levels of protection applicable to the analogous state constitutional provision. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 894 (1991). “[E]ach state has the power to provide broader standards, and go beyond the minimum floor which is established by the federal Constitution.”Id. Accordingly, we are not bound by the decisions of the United States Supreme Court on similar constitutional provisions but instead may consider the opinions for their persuasive value. Pap's A.M., 812 A.2d at 601 ; Edmunds, 586 A.2d at 894–5.

As we stated in Pap's A.M., we conduct Pennsylvania constitutional analysis consistently with the model set forth in Edmunds. Pap's A.M., 812 A.2d at 603. “Under Edmunds, the Court should consider: the text of the relevant Pennsylvania Constitutional provision; its history, including Pennsylvania case law; policy considerations, including unique issues of state and local concern and the impact on Pennsylvania jurisprudence; and relevant cases, if any, from other jurisdictions.” Id. A. Text

In considering the text of the provisions, we first look to their placement in the larger charter. The structure of the Pennsylvania Constitution highlights the primacy of Pennsylvania's protection of individual rights: “The very first Article of the Pennsylvania Constitution consists of the Pennsylvania Declaration of Rights, and the first section of that Article affirms, among other things, that all citizens ‘have certain inherent and indefeasible rights.’ ” Pap's A.M., 812 A.2d at 603.¹⁰ Moreover, our charter further protects the rights detailed in Article I in Section 25, providing, “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.” Pa. Const. art. I, § 25. “Unlike the Bill of Rights of the United States Constitution which emerged as a later addendum in 1791, the Declaration of Rights in the Pennsylvania Constitution was an organic part of the state's original constitution of 1776, and appeared (not coincidentally) first in that document.” Edmunds, 586 A.2d at 896.

10 Although originally contained in Article I, the Declaration of Rights were moved to Article IX, in the Constitution of 1790 and then returned to Article I in 1874. See Ken Gormley, The Pennsylvania Constitution: A Treatise on Rights and Liberties § 12.1, at 327, Appendix I, at 877–78, 880–81, 887–89 (2004).

One of the rights protected in Article I is Section 9's right against self-incrimination. As is true of most of the provisions of the Pennsylvania Declaration of Rights, Section 9 was adopted in 1776 and served as a model for the protections provided by the Fifth Amendment of the United States Constitution as it predated the federal provision by fifteen years. See generally id. at 896 (discussing the historical background of the Pennsylvania Declaration of Rights). Originally, the provision was worded to provide that no “man” can “be compelled to give evidence against himself,” with the current wording adopted in 1838. See Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957, 961 (1995). Section 9 currently dictates, “In all criminal prosecutions, the accused ... cannot be compelled to give evidence against himself.”¹¹ Pa. Const. art. 1, § 9. This language is very similar to the Fifth Amendment, which provides: “ [n]o person ... shall be compelled in any criminal case to be a witness against himself.”¹² U.S. Const. amend. V. While we recognize that “no man” in the federal provision is arguably broader than “the accused” in Pennsylvania's section, we also observe that Pennsylvania's protection against being forced “to give evidence” is potentially more extensive than the federal protection against being “a witness against himself.” Given the substantial similarity of the provisions, we do not find the textual differences dispositive. Moreover, “we are not bound to interpret the two provisions as if they were mirror images, even where the text is similar or identical.” Edmunds, 586 A.2d at 895–96. Indeed, we have previously found Section 9 to provide greater protection than the Fifth Amendment, despite the similar language. See, e.g., Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) (plurality) (holding, in the lead opinion as described below, that under the Pennsylvania Constitution an accused could not be impeached with his prior voluntary, but suppressed, statements; abrogated by subsequent amendment).

11 Article I, Section 9 provides in full:

Rights of accused in criminal prosecutions

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

Pa. Const.art. 1, § 9.

12 In full, the Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const.amend. V.

Other textual differences exist between the federal and state provisions which do not directly relate to the issue currently before this Court. For example, the final sentence of Section 9, which is not present in the Fifth Amendment, was added in 1984 in response to this Court's decision in Triplett. See Swinehart, 664 A.2d at 961. The amendment brought our jurisprudence into conformity with federal law on the limited issue of the use of prior suppressed statements. In Swinehart, 664 A.2d at 962, we stated that the amendment was “intended to ensure that the protection against self-incrimination under Article I, Section 9 would be interpreted similarly to the Fifth Amendment.” Respectfully, we believe it overstates the amendment's intent to read it as applicable to any matter relating to one's right against self-incrimination, given that the amended language solely addresses the relatively narrow issue of the use of suppressed voluntary statements and does not extend more broadly to other questions related to the right against self-incrimination. Indeed, even in Swinehart, we concluded that the amended language did not relate to Swinehart's case regarding the extent of immunity and, instead, looked for guidance in the prior decisions of this Court, ultimately concluding that Pennsylvania's provision was broader than the federal provision, as discussed below.

The Pennsylvania Constitution also historically contained two exceptions to the right against self-incrimination not present in the federal charter. In 1874, Article III, Section 32 (repealed in 1967) and Article VIII, Section 10 (now renumbered Article VII, Section 8) were added to allow for compelled testimony regarding cases involving bribery or corrupt solicitations and contested elections, respectively. See Ken Gormley, The Pennsylvania Constitution: A Treatise on Rights and Liberties, § 12.6(c) at 387 n.318 (2004). The provisions stated that testimony could be compelled but “ such testimony shall not afterwards be used against [the witness] in any judicial proceedings except for perjury in giving such testimony.” Pa. Const. art. 7, § 8 ; see generally Gormley, The Pennsylvania Constitution, § 12.6(c), at 387–88; Leonard Sosnov, Criminal Procedure Rights Under the Pennsylvania Constitution: examining the Present and Exploring the Future, 3 Widener J. Pub.L. 217, 306 (1993). While these provisions provide specific exceptions for when testimony can be compelled, they do not guide our analysis of whether the protections of Section 9 apply to pre-arrest silence.Given that the textual distinctions between Section 9 and the Fifth Amendment do not definitively speak to the issue before the Court, we find more persuasive our jurisprudence interpreting the provisions, which also incorporates underlying policy considerations.

B. History and Policy Considerations

Our precedent regarding the right against self-incrimination has generally developed in parallel or following the dictates of federal precedent interpreting the Fifth Amendment, particularly after the United States Supreme Court's 1965 decision in Griffin, 380 U.S. at 615, 85 S.Ct. 1229 (holding that “the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.”). On most occasions, we have not considered whether differences exist between the federal and state provisions.

We recognize, however, that this Court has taken inconsistent stances in determining whether the right against self-incrimination under Section 9 exceeds the protections of the Fifth Amendment. At times, we have “stated that, except for the protection afforded by our Commonwealth's Constitution to reputation, the provision in Article I, § 9 which grants a privilege against self-incrimination tracks the protection afforded under the Fifth Amendment.” Commonwealth v. Arroyo,

555 Pa. 125, 723 A.2d 162, 166 (1999).¹³ Similarly, we opined generally that we should not extend rights under our Pennsylvania Constitution beyond those in the federal charter absent “a compelling reason to do so.” Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926 (1985). In most of the cases where we have interpreted the rights as coextensive, however, we have indicated that the defendant failed to provide a convincing argument in favor of stronger protection under the Pennsylvania Constitution. See Arroyo, 723 A.2d at 167 ; Commonwealth v. Morley, 545 Pa. 420, 681 A.2d 1254, 1258 (1996).

13 While not relevant to the issues before this Court, Pennsylvania's constitution, unlike its federal counterpart, includes reputation as an “inherent and indefeasible” right:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Pa. Const.art. I, § 1.

On several occasions, our Court has specifically concluded that the protections of Section 9 exceed those in its federal counterpart. Swinehart, 664 A.2d at 969 (addressing immunity and opining that “Article I, Section 9 is, in fact, more expansive than the Fifth Amendment” but not so much as to require greater protection than that provided by the relevant statute); Turner, 499 Pa. 579, 454 A.2d 537 (rejecting Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490, and holding that reference to post-arrest, pre-Miranda silence violates Article I, Section 9 ); Triplett, 462 Pa. 244, 341 A.2d 62 (plurality) (diverging, under the lead opinion, from Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and concluding that use of suppressed but voluntary statements to impeach a defendant's testimony violated Article I, Section 9, later abrogated by constitutional amendment). Cf. Edmunds, 586 A.2d at 898 (observing in regard to Article I, Section 8 of the Pennsylvania Constitution that from 1961–1973, this Court “tended to parallel the cases interpreting the 4th Amendment,” but “beginning in 1973, our case-law began to reflect a clear divergence from federal precedent.”). Given the arguably contradictory holdings regarding the interaction between Section 9 and the Fifth Amendment, we must consider our precedent regarding the right against self-incrimination more broadly to determine whether Section 9 protects a defendant's decision to remain silent in the pre-arrest context.

Our jurisprudence regarding references to a defendant's silence is severable into identifiable categories. We initially consider precedent addressing the right against self-incrimination generally. Next, we review those cases where reference to silence is permissible to impeach a defendant who has waived his right by testifying at trial or where counsel has raised an argument necessitating the prosecution's fair response. Additionally, we recognize that courts have created an exception to this general impeachment and fair response rule when the provision of Miranda warnings induces a defendant's silence, such that reference to the silence would violate Fourteenth Amendment due process rights, even if it would not violate the Fifth Amendment right against self-incrimination. Finally, in turning to the specific question of pre-arrest silence, we discuss this Court's decision in Bolus, which addressed pre-arrest silence in the impeachment context, but specifically left open the question currently before the Court regarding the use of silence as substantive evidence of guilt.

1. General Right Against Self–Incrimination

Similar to the Fifth Amendment, Article I Section 9 dictates that the accused “cannot be compelled to give evidence against himself.” Pa. Const. art. I, § 9. The United States Supreme Court has broadly defined the reach of this protection, given its importance in the structure of our judicial system:

The privilege reflects a complex of our fundamental values and aspirations, and marks an important advance in the development of our liberty. It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.

Kastigar v. U.S., 406 U.S. 441, 444–45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (footnotes omitted).

We have acknowledged, however, the “inherent conflict” between the right against self-incrimination and our system's reliance on compelled testimony. Swinehart, 664 A.2d at 967. While we have credited the “public['s] right to every man's evidence,” our courts have emphasized the need for the protection against self-incrimination to avoid the “cruel trilemma of self-accusation, perjury or contempt” that faced those brought before tribunals such as the Star Chamber in England.¹⁴ Id. (internal citation omitted). Through forced confession, individuals had to choose whether to incriminate themselves, perjure themselves, or be held in contempt if they remained silent. See Id.; see generally Andrew Bentz, Note, The Original Public Meaning of the Fifth Amendment and Pre–Miranda Silence, 98 Va. L.Rev. 897, 909–912 (2012). As Dean Gormley has observed, “the prohibition against conviction by a process of inquisition is the crown jewel” of all rights afforded the accused under federal and state constitutions. Gormley, The Pennsylvania Constitution, § 12.6(a), at 386 (internal quotations, citations and footnote omitted).

14 The Star Chamber was an English court of law existing from the Fifteenth to Seventeenth Centuries. The United States Supreme Court described its relevance to the enactment of the Fifth Amendment's right against self-incrimination:

Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber—the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source.

Pennsylvania v. Muniz, 496 U.S. 582, 595–596, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (quoting Doe v. U.S., 487 U.S. 201, 212, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) ).

As the United States Supreme Court did in Griffin, this Court has viewed the right against self-incrimination as protecting silence as well as overt self-incrimination.¹⁵ In Dravecz,

15 As discussed infra at 450 we recognize that some justices of both the United States Supreme Court and this Court view the Fifth Amendment as limited to protecting only compelled speech, rather than silence.

Justice Musmanno explained how silence and self-incrimination are tied:

Under common law and, of course, this was doubly true in medieval continental Europe, forced confessions were as common as they were cruel and inhuman. The framers of our Bill of Rights were too aware of the excesses possible in all governments, even a representative government, to permit the possibility that any person under the protection of the United States flag could be forced to admit to having committed a crime. In order to make the protection hazard-proof, the framers went beyond coercion of confessions. They used the all-embracive language that no one could be compelled ‘to be a witness against himself’. What did the Trial Court in this case do but compel Dravecz to be a witness against himself? Dravecz had said nothing, yet because something was read to him, to which he made no comment, the prosecution insisted that Dravecz admitted guilt. If Dravecz could not be made a self-accusing witness by coerced answers, he should not be made a witness against himself by unspoken assumed answers.

Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904, 907 (1967) (plurality). Our Court took the occasion of the Dravecz case to further explore the ambiguity inherent in silence, as noted above, recognizing that not all those accused of a crime immediately declare their innocence, but some may be made speechless by the accusation. Id. Other courts, as did the Superior Court below, have similarly observed that innocent individuals accused of a crime may also remain silent for fear that their explanation will not be believed or to protect another. Molina, 33 A.3d at 65–66.

Since Griffin, the protection of a defendant's silence has become imbedded in our jurisprudence. See, e.g., Com. v. Wright, 599 Pa. 270, 961 A.2d 119, 143 (2008) (“[T]his Court vigilantly protects the right to remain silent and recognizes references to an accused's exercise of this right may jeopardize the presumption of innocence in the jury's mind.”); cf. Edmunds, 586 A.2d at 900 (discussing New Jersey Supreme Court's recognition of a right that is accepted and then becomes imbedded in the state's jurisprudence under a state constitution after twenty-five years of consistent application). Moreover, this Court additionally opined nearly forty years ago that “[t]he prohibition of any reference to an accused's silence reflects the court's desire that an accused not be penalized for exercising his constitutional rights.” Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826, 828 (1976). Our jurists have long recognized that “most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt,” noting that the privilege “would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765, 767 (1972) (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir.1968) and Slochower v. Board of Higher Ed. of N.Y., 350 U.S. 551, 557, 76 S.Ct. 637, 100 L.Ed. 692 (1956) ); see also Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656, 657 (1978) (finding that the Commonwealth violated the defendant's Fifth Amendment right and opining that “where one is accused of a criminal offense and remains silent, a lay person could and probably would consider this silence to be an unnatural reaction unless the accused was in fact guilty”). Accordingly, this Court has long protected a defendant's silence as part of the right against self-incrimination.

2. Permitted Use of Silence as Impeachment Evidence or Fair Response

Under both state and federal precedent, the analysis changes dramatically once a defendant decides to testify because he has waived his right against self-incrimination: “His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” Raffel v. U.S., 271 U.S. 494, 497, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). As the Supreme Court noted in Jenkins, it would undermine the fundamental truth-seeking purpose of our adversary system to prevent the prosecution from questioning the validity of the defendant's testimony in an attempt to uncover fabricated defenses: “Once a defendant decides to testify, the interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.”Jenkins, 447 U.S. at 238, 100 S.Ct. 2124 (internal quotation marks, alternation, and citation omitted). Accordingly, the prosecution may impeach the testifying defendant with his prior statements, actions, or silence, regardless of whether the statements, actions, or silence occurred prior to or after the reading of Miranda rights¹⁶ or the defendant's arrest, if the defendant waives his right against self-incrimination by testifying.

16 Although a testifying defendant's right is not infringed by reference to his prior silence, given his waiver, a violation of his due process rights may occur because his silence was induced by Miranda warnings, see infra at 448.

In addition to impeachment, the Commonwealth may utilize a defendant's silence, including pre-arrest silence, as fair response to a defendant's argument at trial. Specifically, in DiNicola, we allowed reference to a defendant's refusal to speak to a trooper as a fair response to defense counsel's questioning of the adequacy of the trooper's investigation. 866 A.2d at 335–36. Thus, while we hold the right to remain silent sacrosanct, we also protect our adversarial system by allowing cross-examination of a testifying defendant and fair response to the defense's arguments.

In a related issue, we recognize that three justices of this Court diverged from federal precedent involving the right against self-incrimination in an impeachment scenario. Triplett, 462 Pa. 244, 341 A.2d 62 (plurality). The lead opinion rejected the United States Supreme Court's decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, in which the court held that constitutionally infirm statements could be used to impeach a defendant's trial testimony if the statements were “obtained under circumstances that would not detract from the trustworthiness of the statement [s].” Triplett, 341 A.2d at 64. The justices opined under Article I, Section 9 that any statement deemed inadmissible by a suppression court could not be utilized to impeach the defendant's testimony at trial. Id. They observed, that to do otherwise, would force a Hobson's choice on the defendant faced with deciding whether to decline the right to testify or risk impeachment with the suppressed statements. Id. Later, however, Section 9 was amended to provide specifically that “The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.” Pa. Const. art. 1, § 9. This amendment protects our adversary system by allowing the Commonwealth to challenge the defendant's testimony at trial with prior inconsistent statements. We observe, however, that this amendment does not impact the question before this Court regarding the significance of the right against self-incrimination in a case not involving impeachment with prior inconsistent statements. Moreover, despite the amendment, the holding in Triplett indicates the lead opinion's view of Article I, Section 9 as broader than the Fifth Amendment.

3. Due Process Exception to Use of Silence as Impeachment in Post–Miranda Warning Cases

Although the case at bar involves pre-arrest silence, and thus does not concern the provision of Miranda warnings and resulting due process concerns, we consider the post-Miranda warning cases to understand why courts found the timing of a defendant's silence relevant to determining whether reference to that silence is permissible and to examine another area of jurisprudence where this Court has imposed more stringent protection of the right against self-incrimination.

Although, as discussed above, a defendant's testimony may generally be impeached with prior silence, courts have concluded that a prosecutor may not use a defendant's silence after the provision of Miranda warnings. In Doyle, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the Supreme Court held that the prosecution violated a defendant's due process rights when it used the defendant's pre-trial silence to impeach the defendant's testimony after the defendant had been assured of his right to remain silent through Miranda warnings and potentially induced to remain silent. The court additionally recognized the diminished probative value of silence, post-Miranda warnings. “Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.” Id. at 617, 96 S.Ct. 2240.

The High Court, in a per curiam opinion in Fletcher, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490, rejected an attempt to extend the due process protection of Doyle to the post-arrest, pre-Miranda warning period. Instead, the Court allowed prosecutors to impeach a testifying defendant regarding his post-arrest, pre-Miranda warning silence, given that the defendant had not been induced to remain silent by the warnings. The Court, therefore, found no due process violation.Mere months after Fletcher, this Court diverged from the High Court's view of the use of silence for impeachment purposes in Turner, 499 Pa. 579, 454 A.2d 537. While Doyle and Fletcher addressed due process concerns, this Court utilized Pennsylvania's protection against self-incrimination, deeming it more restrictive than the federal provision and concluding that Pennsylvania has “traditionally viewed such references to the accused's silence as impermissible for a variety of reasons.” Id. at 539. We “decline[d] to hold, under the Pennsylvania Constitution, that the existence of Miranda warnings, or their absence, affects a person's legitimate expectation not to be penalized for exercising the right to remain silent.” Id. at 540. Relying on our prior decisions in Singletary, Greco, and Haideman, we 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. at 539. Additionally, we rejected the High Court's conclusion that protection is only required post-Miranda warnings. Instead, we emphasized our prior conclusion that the extent of the right against self-incrimination is not altered by whether it was induced by Miranda warnings or by prior knowledge of the right. Id. (citing Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198, 1200–01 n. 5 (1979) ). Therefore, given the substantial prejudice to the defendant combined with the limited probative value resulting from the “insoluble ambiguity” of silence, we prohibited reference to a defendant's silence except to impeach a factual inconsistency in defendant's version of events, such as if he claimed to have provided a post-arrest statement to police. Turner, 454 A.2d at 539–40.¹⁷

17 In another case related to Miranda warnings not directly relevant to the issue before this Court, a plurality of this Court imposed more stringent protections on the right against self-incrimination than the federal jurisprudence, requiring that police obtain an explicit waiver of Miranda rights, rather than adopting the minimal criteria set by the United States Supreme Court in North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), where the High Court found evidence of an implicit waiver of rights to be sufficient. Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309, 1314–15 (1979) (plurality).

4. Pre–Arrest Silence

Given that this case does not involve the Fourteenth Amendment due process concerns of post-Miranda warning cases, we turn back to the right against self-incrimination, specifically in regard to pre-arrest silence. In Bolus, 545 Pa. 103, 680 A.2d 839, this Court refused to apply Turner to the pre-arrest period. While we acknowledged the demarcation, we failed to explain the relevance of the pre- and post-arrest time periods to the legal underpinnings of the right to silence. Id. at 843. Instead, we found persuasive the United States Supreme Court's holding in Jenkins, providing that prearrest silence could be utilized to impeach a testifying defendant's credibility. Id. Nonetheless, in a footnote, we specifically avoided deciding whether to extend the holding to situations involving the use of pre-arrest silence as substantive evidence, the issue before the Court herein. Id. at 844 n. 5.¹⁸

18 We also acknowledged that the defendant in Bolus failed to present an argument for distinguishing the protections provided by Section 9 from the federal provisions. Bolus, 680 A.2d at 844.

The question of whether reference to a non-testifying defendant's pre-arrest silence violates the defendant's right against self-incrimination is now squarely before this Court. As discussed below, we conclude that 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. While our courts have found the timing of a defendant's silence in relation to the provision of Miranda warnings to be extremely relevant to a defendant's due process rights, see Doyle, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the underpinnings of the right against self-incrimination are not based on timing but on whether a person has been compelled to be a witness against himself at a criminal proceeding. Regardless of whether a forced confession is obtained prior to the official act of an arrest or after, it is not admissible at trial as it would result in the defendant being “compelled to give evidence against himself.” Pa. Const. art. 1, § 9.

We recognize, however, that some do not view the drawing of an adverse inference of guilt from silence as within the protection of the right against self-incrimination because it is not “compelled” in the traditional sense. See Molina, 33 A.3d at 71 (opining that “the privilege against self-incrimination is irrelevant to a citizen's decision to remain silent when he or she is under no official compulsion to speak”) (Stevens, J., dissenting); see also Salinas, 133 S.Ct. at 2184 (Thomas, J., concurring); Mitchell v. United States, 526 U.S. 314, 331, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (Scalia, J., dissenting); Jenkins, 447 U.S. at 241, 100 S.Ct. 2124 (Stevens, J., concurring). We respectfully disagree with the non-binding reasoning of these jurists and, instead, view the drawing of an adverse inference from a defendant's silence to be encompassed within the right against compelled self-incrimination. We recognize that the right is not violated by a mere reference to a defendant's silence, as occurred during the detective's testimony in this case while she explained her investigation. See DiNicola, 866 A.2d at 336–37 (“[T]he mere revelation of silence does not establish innate prejudice”). The right against self-incrimination is burdened, however, when the mention of a defendant's silence is used by the prosecutor as substantive evidence of guilt. Cf. id. at 337 (finding no violation where the defendant's silence “was not used in any fashion that was likely to burden Appellee's Fifth Amendment right or to create an inference of an admission of guilt.”).

Justice Musmanno captured the conundrum: “If [a defendant] could not be made a self-accusing witness by coerced answers, he should not be made a witness against himself by unspoken assumed answers.” Dravecz, 227 A.2d at 907. Similarly, Justice Thurgood Marshall stated in Jenkins, “the only means of compelling a person to incriminate himself is to penalize him if he does not.” Jenkins, 447 U.S. at 250 n. 4, 100 S.Ct. 2124 (Marshall, J., dissenting); see also Bentz, 98 Va. L.R. at 930 (“[T]he government cannot argue both that the person's silence is relevant and therefore admissible because a normal person would feel compelled to speak, but also argue that the Fifth Amendment does not apply because the person is not compelled.”). Allowing a prosecutor to use silence as substantive evidence of guilt merely reintroduces a modern version of the “cruel trilemma,” where a defendant is compelled to choose between confessing, perjuring themselves, or remaining silent, where that silence can be used at trial to infer guilt. Combs v. Coyle, 205 F.3d 269, 285 (6th Cir.2000) ; Taylor v. Commonwealth, 26 Va.App. 485, 495 S.E.2d 522, 528 (1998).

Moreover, allowing reference to a defendant's silence as substantive evidence endangers the truth-determining process given our recognition that individuals accused of a crime may remain silent for any number of reasons. See Dravecz, 227 A.2d at 907. As in this case, a defendant's silence in the face of police questioning is “insolubly ambiguous” as it could be indicative of a busy schedule, a distrust of authority, an unwillingness to snitch, as much as it is indicative of guilt. Nonetheless, as we noted in Turner, jurors generally view silence as an indication of guilt. Turner, 454 A.2d at 539.

We observe that the timing of the silence has little relevance to whether use of that silence as evidence of guilt will impinge on the right against self-incrimination. We have previously concluded that “[t]he difference between prosecutorial use of an accused's silence at [t]rial and the use of an accused's silence at [a]rrest is ... infinitesimal.” Haideman, 296 A.2d at 767 (internal quotation marks and citation removed). In Turner, we likewise reiterated that no “reason exists to differentiate between situations where the right to remain silent is exercised following [Miranda ] warnings and where it is exercised without warnings being given,” especially considering that in this day most are aware of the Miranda warnings and their “right to remain silent.” Turner, 454 A.2d at 540 (quoting Commonwealth v. Easley, 396 A.2d at 1200–01 n. 5 ). Similarly, we have interpreted Dravecz to prohibit the use of silence as an implied admission where the silence occurred when in custody or “in the presence of police,” although it did not extend to the use of silence as an implied admission outside the presence of police. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387, 392 (1981) (opining that silence in the face of co-participant's inculpatory declaration was admissible pursuant to the implied admission exception to hearsay rule, given that it occurred outside the presence of police); accord Combs, 205 F.3d at 283 (quoting Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.1989) (holding “that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime”)). Thus, we conclude that the timing of the silence in relation to the timing of an arrest is not relevant to the right against self-incrimination.

Accordingly, we conclude that our precedent, and the policies underlying it, support the conclusion that the right against self-incrimination prohibits use of a defendant's pre-arrest silence as substantive evidence of guilt, unless it falls within an exception such as impeachment of a testifying defendant or fair response to an argument of the defense.

C. Other jurisdictions

In addition to reviewing the text, history, and policies relating to the Pennsylvania constitutional provisions, under Edmunds, we also consider the opinions of our sister states. In so doing, our goal is not to create a “score card,” but rather to consider whether the underlying logic of the decisions informs our analysis of the related Pennsylvania provision. Edmunds, 586 A.2d at 900. We recognize that the First, Sixth, Seventh and Tenth Circuits have concluded that use of pre-arrest silence as substantive evidence of guilt is inadmissible as violative of the right against self-incrimination, while the Fifth, Ninth, and Eleventh have found no constitutional violation, reasoning that the defendant is not subject to government compulsion before he is arrested.¹⁹ Similarly, the question has divided state courts across the nation, through numerous, often, fractured, decisions.²⁰ Jurists on these courts have ably set forth the competing arguments surrounding the use of pre-arrest silence as substance evidence. We find all of these discussions insightful and helpful to our analysis. However, we ultimately base our decision on the Pennsylvania constitution and our precedent applying the right against self-incrimination.

19 The following Courts of Appeals have concluded that use of pre-arrest silence as substantive evidence is unconstitutional: Combs v. Coyle, 205 F.3d 269 (6th Cir.2000) ; United States v. Burson, 952 F.2d 1196 (10th Cir.1991) ; Coppola v. Powell, 878 F.2d 1562 (1st Cir.1989) ; United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.1987).

The following Courts of Appeals have concluded that use, as substantive evidence, of silence prior to arrest is constitutional: United States v. Oplinger, 150 F.3d 1061 (9th Cir.1998), overruled on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir.2010) ; United States v. Zanabria, 74 F.3d 590 (5th Cir.1996) ; United States v. Rivera, 944 F.2d 1563, 1568 n. 12 (11th Cir.1991).

20 The following state courts have concluded that use of pre-arrest silence as substantive evidence is unconstitutional: People v. Welsh, 58 P.3d 1065 (Colo.App.2002) ; State v. Moore, 131 Idaho 814, 965 P.2d 174 (1998) ; State v. Lovejoy, 89 A.3d 1066 (Me.2014) ; Commonwealth v. Thompson, 431 Mass. 108, 725 N.E.2d 556 (2000) ; State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990) ; State v. Cassavaugh, 161 N.H. 90, 12 A.3d 1277 (2010) ; State v. Boston, 191 N.C.App. 637, 663 S.E.2d 886 (2008) ; State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335 (2004) ; State v. Palmer, 860 P.2d 339 (Utah Ct.App.1993) ; Taylor v. Commonwealth, 26 Va.App. 485, 495 S.E.2d 522 (1998) (based upon Virginia constitutional provision); State v. Easter, 130 Wash.2d 228, 922 P.2d 1285 (1996) ; State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703 (1982) ; Tortolito v. State, 901 P.2d 387 (Wyo.1995) (based upon Wyoming constitutional provision).

The following state courts have concluded that use of pre-arrest silence as substantive evidence is constitutional: State v. Lopez, 230 Ariz. 15, 279 P.3d 640, 645 (Ct.App.2012) ; People v. Schollaert, 194 Mich.App. 158, 486 N.W.2d 312 (1992) ; State v. Borg, 806 N.W.2d 535 (Minn.2011) ; State v. Masslon, 746 S.W.2d 618, 626 (Mo.Ct.App.1988) ; State v. Helgeson, 303 N.W.2d 342 (N.D.1981) ; Salinas v. State, 368 S.W.3d 550 (Tex.Ct.App.2011), affirmed on other basis, ––– U.S. ––––, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013) ; State v. LaCourse, 168 Vt. 162, 716 A.2d 14 (1998).

After reviewing Article I, Section 9 of the Pennsylvania Constitution pursuant to Edmunds, we conclude that the factors weigh in favor of diverging from the currently asserted minimum standard of federal protection of the right against self-incrimination in regard to the use of pre-arrest silence as substantive evidence. Specifically, while we recognize the textual similarities with the Fifth Amendment, we conclude that the primacy of the Declaration of Rights to Pennsylvania's charter requires stronger protection of our liberties than under the federal counterpart. More significantly, we emphasize that, while this Court has often tracked federal jurisprudence in regard to the right against self-incrimination, we have interpreted Section 9 to provider a broader right on several occasions, including Triplett, Turner, and Swinehart. We find significant guidance from Turner where this Court diverged from federal precedent on an issue closely related to the issue at bar. In Turner, we refused to allow the use of a defendant's decision to remain silent post-arrest to impeach the defendant's trial testimony, unless the defendant at trial claims he did not previously remain silent. Accordingly, we hold that Article I, Section 9 is violated when the prosecution uses a defendant's silence whether pre or post-arrest as substantive evidence of guilt.

Turning to the facts of this case, we agree with the Superior Court that the prosecutor violated Defendant's Fifth Amendment right against self-incrimination when he emphasized Defendant's silence as “most telling,” by asking “why” Defendant refused to cooperate with the detective, and then instructing the jury to “[f]actor that in when you're making an important decision in this case as well.” N.T., Dec. 14–20, 2006, at 581. While the prosecutor's argument is not evidence, the prosecutor used the evidence referencing Defendant's silence to imply his guilt, in essence making him “a witness against himself by unspoken assumed answers.” Dravecz, 227 A.2d at 907. Cf. Easley, 396 A.2d at 1202 (finding a prosecutor's comment on a prior, admitted reference to silence, unconstitutionally “implied to the jury that Easley's silence at the time of arrest was evidence of guilt”). Accordingly, we hold that the prosecutor's use of the properly admitted evidence of Defendant's pre-arrest silence to infer guilt violates Article I, Section 9 of the Pennsylvania Constitution.²¹

21 Moreover, I note that the ramifications of a decision condoning this prosecutor's closing statement are noteworthy. It is without controversy under our Fourth Amendment/Article I, Section 8 jurisprudence that a citizen has the right to break off a mere encounter with police by declining to speak and walking away. Commonwealth v. Ickes, 582 Pa. 561, 873 A.2d 698, 701–02 (2005). While the defendant in this case walked away telephonically, he nevertheless did no more than break off a mere encounter with a police officer. To find that his actions are admissions of substantive guilt unprotected by Article 1, Section 9 puts every citizen of Pennsylvania in the “cruel trilemma” referenced repeatedly by the United States Supreme Court and this Court. See Pennsylvania v. Muniz, 496 U.S. 582, 596, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) ; Swinehart, 664 A.2d at 967. If a citizen exercises his well-established right to walk away without consequences under the Fourth Amendment/Article I, Section 8, he can find that he has nevertheless somehow admitted guilt by remaining silent under Article I, Section 9. Removing the ability to remain silent without negative effect leaves a defendant with the choice to speak and incriminate himself or to commit perjury. These options are inconsistent with his seeming Fourth Amendment/Article I, Section 8 right to break off the encounter and his Article I, Section 9 right against self-incrimination. To place our citizens on the horns of this trilemma during every mere encounter with police simply cannot be constitutionally countenanced, yet that is the proposition the Commonwealth espouses herein.

III. Harmless Error Analysis

A violation of Section 9, however, does not automatically result in a reversal. Instead, we consider the Commonwealth's alternative argument that any error was harmless. The Commonwealth asserts that the reference to Defendant's silence in this case was a “lone mention” in a closing argument covering nearly thirty transcript pages that did not suggest that the failure to come to the police station constituted an admission of guilt. Accordingly, the Commonwealth urges the Court to reverse the decision of the Superior Court and reinstate the judgment of sentence.

In contrast, Defendant maintains that the error in this case was not harmless because the Commonwealth's evidence was based substantially upon what it viewed as the biased and contradictory testimony of Michael Benintend, who was initially charged with the murder, and Pam Deloe, who was a drug-addicted prostitute with a motive to testify against Defendant. Given the critical importance of the credibility assessments of these two witnesses, Defendant maintains that the evidence of guilt was not overwhelming. He further argues that the prejudice was not de minimis given that the prosecutor implored the jury to factor his silence in when deciding the case. Accordingly, Defendant urges this Court to affirm the Superior Court's decision.

“[T]he proper standard for determining whether an error involving state law is harmless is the same as the standard this Court applies to federal constitutional error: an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 162 (1978) (citing Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ) see also Commonwealth v. Murray, ––– Pa. ––––, 83 A.3d 137, 165 (2013) ( “[T]he same beyond a reasonable doubt measure should govern errors of state law, regardless of whether the error is of constitutional or non-constitutional magnitude.”) (Castille, C.J., concurring). We have found error to be harmless where:

(1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Wright, 961 A.2d at 143 (quoting Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166, 193 (1999) and Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 350 (1998) ). “[T]he burden of establishing that the error was harmless beyond a reasonable doubt rests with the Commonwealth.” Story, 383 A.2d at 162 n. 11.

The Commonwealth's case against Defendant was based on the testimony of the two eyewitnesses and several other witnesses who supported the details of the eyewitnesses' testimony and provided information regarding Victim's activities on the morning of the murder. Given the questionable credibility of the two primary eyewitnesses, Michael Benintend and Pam Deloe, as detailed below, we conclude that the prosecutor's entreaty for the jury to “[f]actor” in Defendant's failure to meet with the detective was prejudicial and not de minimis. Moreover, Defendant's silence was not cumulative of any other evidence. We additionally conclude that the other evidence in the case is not overwhelming. While we do not discount the heinous crime involved and have empathy for the loved ones of the victim, we cannot ignore that the blame for the crime was placed on Defendant by Michael Benintend and Pam Deloe whose credibility was significantly questioned during trial, allowing the real potentiality that the jurors could have been swayed to believe the witnesses after considering the inference that the Defendant had something to hide by not meeting with the Missing Persons Unit detective, as urged by the prosecutor.

To elaborate, Benintend testified that he called Victim to sell him drugs at Benintend's home where Defendant later arrived. Benintend further claimed to have witnessed Defendant ask Victim for money she owed him and, when she did not pay, watched Defendant beat Victim viciously with his hands and then a baseball bat. Benintend asserted that he ran out the back door while Defendant continued to beat Victim. Soon thereafter he moved to Key West, Florida. Given that the body was found in the house in which Benintend lived, he was originally charged with the murder. When first questioned by detectives in Florida, he did not reveal any information about the murder. However, in the second interview, he placed the blame on Defendant. Benintend eventually pled guilty to aggravated assault, unlawful restraint, and criminal conspiracy in exchange for his testimony against Defendant. Indeed, the trial court at sentencing recognized that, while the facts pointed to Defendant as the perpetrator, “Mr. Benintend's involvement was substantially greater than he has let it on to be.” N.T., March 15, 2007, at 13. Benintend also had prior crimen falsi convictions.Pam Deloe testified that she drove with Defendant to Benintend's house. After hearing screaming from the house, she claims to have entered the house and tried to stop the horrific beating of Victim, but Defendant pushed her away. Deloe also alleged that Benintend blocked Victim's exit from the premises. She claimed that she left the house and that Defendant followed approximately fifteen seconds later. As previously mentioned, Deloe was also present when the detective initially came to Defendant's house looking for Victim. Moreover, she claims that Defendant kidnapped her after Victim's body was found and took her to Connecticut, where he was eventually arrested.

However, Deloe admitted to being a prostitute and drug addict who was being supported by Defendant. She acknowledged having difficulty remembering, which she blamed on beatings she received from Defendant, for which he was also on trial at the time of the murder proceeding. Moreover, in a confusing portion of her testimony that evidenced her faulty memory, Deloe alleged that Defendant severely beat her when she accused him publicly of Victim's murder. However, the hospital record introduced to support the alleged beating was for treatment that occurred prior to the murder, thus arguably undermining her claims. N.T., Dec. 14–20, 2006, at 234–36. Defense counsel further highlighted several inconsistencies between Benintend and Deloe's testimony, including whether another man, named Troy, was present in the house during the murder and whether Benintend remained in the house after Defendant left. Recognizing the significant credibility issues concerning the eyewitness testimony of Benintend and Deloe, we are not “convinced beyond a reasonable doubt that the error was harmless.” Story, 383 A.2d at 162. As we have noted, “it is far worse to conclude incorrectly that the error was harmless than it is to conclude incorrectly that the error was reversible.” Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715, 719 (1973).

Accordingly, we conclude that the prosecutor's use of the non-testifying defendant's silence as substantive evidence of guilt was not harmless. Therefore, we would affirm the decision of the Superior Court reversing the judgment of sentence and remanding for a new trial.

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.

Justice SAYLOR files a concurring opinion in which Justice TODD joins.

Chief Justice CASTILLE files a dissenting opinion.

Justice EAKIN files a dissenting opinion.

Justice SAYLOR, concurring.

I join the lead opinion, subject to a few modest departures.

In terms of these differences, first, I believe that it is unnecessary to determine whether Appellant impliedly invoked his constitutional right against self-incrimination. See Opinion Announcing the Judgment of the Court, at 438 (concluding that Appellant effectuated an implied invocation). If, as I believe it is here, silence can be insolubly ambiguous (since there are many reasons why a person may decline to respond when questioned),^{1 1 1} I find it problematic to suggest a particular resolution concerning what was meant by Appellee's refusal to speak. Indeed, as I read the lead Justices' ultimate disposition, with which I agree, Article I, Section 9 of the Pennsylvania Constitution precludes the prosecution from using a defendant's pre-arrest silence as substantive evidence of guilt regardless of whether an invocation may be discerned. See id. at 452.

1 In addition to the reasons referenced by the lead Justices, see id. at 450–51, a person's decision not to speak to an officer who appears at his door, or whom he encounters in public, may stem from the notion, now widely known in our culture, that “anything he says can be used against him in a court of law[.]” Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966) ; see Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405 (2000) (explaining that Miranda warnings “have become part of our national culture”).

1 The Opinion Announcing the Judgment of the Court by Mr. Justice Baer (hereinafter “OAJC”) sets forth the prosecutor's argument, the defense objection, the relevant ensuing sidebar discussion, and the prosecutor's final comment, verbatim. OAJC at 433–34.

1 Salinas v. Texas, ––– U.S. ––––, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013) (plurality opinion). It is worth noting that the Salinas plurality required one to “expressly invoke” the Fifth Amendment right. While appellee debatably raises Article 1 § 9 of the state constitution, his argument treats the two rights as if they are identical.

Next, I have some difficulty to the degree the lead opinion treats “protection of the adversary system” as an end unto itself. Id. at 447, 447–78. The adversarial litigation scheme has its limits, and all actors involved in the criminal justice apparatus must both respect individual liberties and refrain from overreaching. To the extent we accept that silence is insolubly ambiguous in any given situation, and that the social science is tending to confirm the suspicion that jurors may be inclined to misperceive silence as evidence of guilt, see, e.g., Mikah K. Story Thompson, Me Thinks the Lady Doth Protest Too Little: Reassessing the Probative Value of Silence, 47 U. Louisville L.Rev. 21, 38–49 (2008) (discussing various studies demonstrating the ambiguity of silence); accord Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d 537, 539 (1982), it is troubling that the Commonwealth would seek to advocate convictions based on silence. In this regard, were it a matter of first impression, I am not certain that I would support the notion that the Pennsylvania Constitution permits the use of a defendant's silence—where it is ambiguous but prejudicial—even for impeachment purposes.^{2 2 2}

2 In the present state of the constitutional jurisprudence on this score, at the very least, trial judges should consider our evidentiary rules. See, e.g., Pa.R.E. 403 (providing that a court may exclude evidence if its probative value is outweighed by the danger of unfair prejudice).

2 The High Court had granted certiorari in Salinas “to resolve a division of authority in the lower courts over whether the prosecution may use a defendant's assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief.” Id. at ––––, 133 S.Ct. at 2179. The Court plurality ultimately found it “unnecessary” to reach that question “because petitioner did not invoke the privilege during his interview.” Id.

2 Further, the record does not contain any testimony at all that appellee's words indicated he was invoking any rights. The detective testified to what happened, but there was no detailing by either party of appellee's actual words. The detective said, “He said he refused to come in[,]” N.T. Trial, 12/14–20/06, at 481, and that was it. It seems unlikely that appellee's precise words were “I refuse to come in”—one surmises his refusal was a bit less stilted. But perhaps it is exactly those words that were used. Perhaps not. There are refusals, and there are refusals. The problem is that the examination of the detective was not aimed at evaluating whether there was an invocation of rights; therefore, the specific words were not sought from the witness. And now, based on a record where one can only speculate about appellee's actual words, to conclude those words were intended as such an invocation is just as speculative.

In terms of my agreement with the majority opinion, from my perspective, the majority does an admirable job working through what has become a highly complex and, indeed, counter-intuitive area of federal constitutional jurisprudence. See, e.g., Peg Green, Pre–Arrest, Pre–Miranda Silence: Questions

Left Unanswered by Salinas v. Texas, 7 Phoenix L.Rev. 395, 409 (2013) (“The odd result of Salinas is that one must speak in order to remain silent; and if a person remains silent instead of speaking up, that silence can be used against him as evidence of guilt.”). To my mind, the result is the delineation of a reasoned and just avenue of departure in our enforcement of a core right guaranteed by the Pennsylvania Constitution.

Justice TODD joins this concurring opinion.

Chief Justice CASTILLE, dissenting.

I dissent and also join Mr. Justice Eakin's Dissenting Opinion. Because the trial court committed no error, I would reverse the Superior Court decision and reinstate the judgment of sentence. My reasons follow.

At trial, the Commonwealth introduced, without objection, evidence that appellee had called a detective and provided some information about the missing victim. After appellee contradicted himself concerning when he had last seen the victim, the detective asked him to come to the police station to speak further; appellee refused. At issue on appeal is a later comment by the trial prosecutor in closing argument which adverted to the fact that appellee had refused to come down to the police station.¹ Appellee's counsel objected, asserting that the reference was “improper comment, absolutely improper.” In response, the prosecutor argued—correctly under existing law—that commentary on pre-arrest silence is not improper. In the ensuing sidebar discussion, defense counsel cited no law or other authority for his objection that a prearrest refusal to cooperate with police cannot be commented upon; much less did counsel argue that he was seeking to preserve a constitutional claim that would extend existing Fifth Amendment law to embrace the pre-arrest period. Nor did counsel forward an objection premised upon the Pennsylvania Constitution being more protective than the Fifth Amendment when it comes to purported references to prearrest silence. Rather, it appears, counsel erroneously thought that some unspecified law already prohibited all references to pre-arrest silence. The trial court overruled the objection. Given the objection and argument actually forwarded and preserved, it would have been patent error for the court to sustain the objection made.

In finding that the trial court erred, the Superior Court en banc majority strayed from its institutional role, which should counsel restraint when asked to innovate a federal constitutional right never accepted by the U.S. Supreme Court or by this Court—especially when the trial court was never asked to embrace the innovation. Instead, the intermediate court established a novel and far-ranging Fourteenth Amendment parameter for the Fifth Amendment right against “compulsion,” in circumstances that were not exactly crying out for the innovation. The court's holding essentially guaranteed that this Court would have to review the issue. After granting review, this Court then had the benefit of an intervening case from the U.S. Supreme Court, which offered the prospect of resolving the Fifth Amendment issue. See Salinas v. Texas, –––U.S. ––––, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013). As it happened, however, the High Court did what the Superior Court did not do: it exercised restraint and caution, upon recognizing that Salinas was not the appropriate vehicle for resolving the novel federal constitutional question presented.² The Salinas decision proves that the Superior Court's decision is unsustainable on its terms; summary vacatur and remand could decide this case.

The Superior Court should have been more cautious. The case presents multiple circumstances counseling restraint, including some of the same cautionary circumstances that led the Salinas Court not to act. I recognize the temptation when a constitutional claim is at issue. But, the Superior Court is not the U.S. Supreme Court and its primary institutional role vis a vis that Court in cases posing federal constitutional questions is to implement that Court's existing commands concerning questions of federal law. See, e.g., Purple

Orchid, Inc. v. Pennsylvania State Police, 572 Pa. 171, 813 A.2d 801, 806 (2002) (U.S. Supreme Court is ultimate authority in claims under U.S. Constitution). See also Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1, 8 (2013) (indicating that “state judges who may be circumspect about evolving normative pronouncements of five of nine Justices—which forcefully are rejected by four others—may be reluctant to apply those standards more broadly than is absolutely required.”); Id. at 12–13 (Castille, C.J., concurring) (extension of existing federal retroactivity law should only come from U.S. Supreme Court; this Court is “properly reluctant” to go beyond affirmative commands of U.S. Supreme Court where argument is premised solely upon federal law). State courts should proceed cautiously when asked to be the engine of innovation in federal constitutional law, since mistaken predictive judgments can be disruptive of Pennsylvania law and can cause substantial injustice where the predictive judgments are erroneous. See, e.g., Commonwealth v. Mouzon, 617 Pa. 527, 53 A.3d 738, 742–43 (2012) (recognizing effect of Pennsylvania Supreme Court's erroneous prediction that U.S. Supreme Court would hold that government was required to bear burden of disproving self-defense claim). See also Commonwealth v. Sanchez, –––Pa. ––––, 82 A.3d 943, 992 n. 4 (2013) (Castille, C.J., concurring) (predictive judgment of whether proportionality review might be required to satisfy Eighth Amendment was incorrect and eventually required repeal of relevant statutory proportionality review provision). Erroneous predictions of federal law affecting criminal cases can be corrected only by this Court or by the U.S. Supreme Court—a Court which generally has little time or inclination to correct every instance of over-reaching by a state appellate court—and this fact, too, should counsel judicial restraint. Accord Commonwealth v. Weiss, 622 Pa. 663, 81 A.3d 767, 811–12 (2013) (Castille, C.J., concurring) (“Errors in such predictions are subject to correction only by the U.S. Supreme Court, which accepts a handful of cases from state courts in any given term, and has no particular incentive to correct erroneous predictions in state collateral appeals. And, errors in such predictions favoring the defense run the risk of arbitrarily releasing murderers.”). One-sided mistakes affecting the evidence available to the Commonwealth—like mistakes wrongly imposing a burden of proof upon the Commonwealth—do not lend themselves to easy correction given that the prosecution has a limited right of appeal (a circumstance which itself is a product of the U.S. Supreme Court's earlier criminal procedural revolution).^{3 3}

3 See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (applying Fifth Amendment proscription against double jeopardy to state prosecutions via Fourteenth Amendment; overruling seminal due process decision in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937) ).

3 It is ironic that appellee's “silence” can be found in an articulated refusal to continue a conversation at the police station, while an articulated “invocation of rights” can be intuited from the exact same “silence.” Also ironic is the suggestion that his “silence,” such as it was, is so ambiguous that it cannot comprise substantive evidence, yet it is unambiguous enough to constitute an assertion of rights.

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Momentous decisions such as the one under review—affecting the conduct of police and the evidentiary options available to the Commonwealth—should be reserved for egregious circumstances. At a minimum, such decisions should be limited to circumstances where the constitutional innovation was plainly implicated both in terms of issue preservation and in terms of the circumstances. For multiple reasons, in my view, this case did not warrant indulging a predictive Fifth Amendment judgment. For one thing, under existing law—which the prosecutor invoked in response to the defense objection—the prosecutor did nothing wrong. Relatedly, appellee never put the trial court on notice that he was seeking relief based upon a theory that required an extension and fundamental alteration of federal constitutional law; thus, the trial court simply cannot be said to have “erred.”

Moreover, one has to strain to fit the facts into a Fifth Amendment invocation-of-rights paradigm. This is not a case where, for example, evidence came in over objection to the effect that: the police asked to speak to the defendant, not in custody; the defendant (perhaps being a law professor) said, “Absolutely not, I have a Fifth Amendment right to remain silent in all of my actions with the police department”; that exchange was introduced as substantive evidence at trial of a tacit admission of guilt; the Commonwealth then argued to the jury that it could conclude that the defendant was guilty because any innocent person would have spoken up and protested his innocence; and, finally, the trial court instructed the jury that it could draw an inference of guilt from the defendant's silence.⁴

4 Notably, the Salinas plurality was of the view that a defendant must expressly invoke his right to remain silent when he is otherwise not being compelled to speak, and that a “witness does not expressly invoke the privilege by standing mute.” Salinas, ––– U.S. at ––––, 133 S.Ct. at 2181–82 (“A suspect who stands mute has not done enough to put police on notice that he is relying on his Fifth Amendment privilege.”). In the absence of an express invocation of Fifth Amendment rights, it is unknown what the defendant's pre-arrest silence actually means; such silence is “insolubly ambiguous.” Id. at ––––, 133 S.Ct. at 2182 (quoting Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ). In this case, appellee phoned the police and freely spoke to them; what he “refused” to do is to go down to the police station to speak further. He never mentioned the Constitution or his “rights.” That is not so much an invocation of a broad constitutional right to silence as it is an expression of a preference respecting the place and manner of speaking with police.

Instead, what happened here was that appellee, prior to arrest, actually spoke to the police, he did not even necessarily decline to speak further, the trial event leading the Superior Court to grant relief did not involve substantive evidence of guilt, but only prosecutorial commentary in closing concerning evidence admitted without objection; and there was no instruction from the judge to consider the comment as if it were evidence, much less an instruction inviting the jury to treat appellee's interaction with police as a tacit admission of guilt. As then-President Judge, and now-Justice Stevens observed in dissent below, “the prosecution's statements during closing argument did not constitute the use of pre-arrest silence as substantive evidence of guilt.... The prosecution provided no additional commentary on this point, and nowhere did it specifically invite the jury to infer guilt from [Molina's] silence.” Commonwealth v. Molina, 33 A.3d 51, 71–72 (Pa.Super.2011) (Stevens, P.J., dissenting). This is hardly a record warranting a broad innovation in predictive federal constitutional law.The OAJC obviously realizes that the Superior Court's finding of trial court error cannot be sustained in terms of the federal constitutional right it conjured. The Justices favoring affirmance would instead affirm the grant of relief premised upon conjuring a distinct Pennsylvania constitutional argument that appellee likewise never forwarded to the trial court. I cannot join the innovation for the same reasons I believe the Superior Court erred in conjuring a new federal right on this record: the trial court committed no error, when measured against the objection actually forwarded, and therefore, appellee is not entitled to relief.

I am also disinclined to innovate new Pennsylvania constitutional law in this particular area because it is clear, to me at least, that the better objection in these cases is not a constitutional one, but a more modest one sounding in evidentiary relevance. The OAJC recognizes this point, noting the Superior Court's observation that the probative value of silence is minimal given the ambiguity inherent in silence. After noting that silence obviously does not necessarily convey guilt, the Superior Court also quoted Mr. Justice Musmanno's notorious observation that an accusation of criminal culpability may lead some to dramatically declare their innocence, but for others, “[t]he accusation may be so startling that the accused is benumbed into speechlessness.” Commonwealth v. Molina, 33 A.3d 51, 65 (Pa.Super.2011), quoting Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904, 907 (1967). Since silence does not reliably convey anything respecting the defendant's guilt or innocence, before rushing to make constitutional pronouncements, it may be more instructive to focus on the predicate question of relevance.

Indeed, given the multitude of circumstances that can lead a person not to speak, it is difficult to see the constitutional error. As the OAJC correctly concedes, the jury could have postulated any number of reasons for appellee's decision not to come down to the station and speak further to police, but the OAJC then declares that “jurors generally view silence as an indication of guilt.” OAJC at 451 (citing Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537, 539 (1982) ) (“The view of this Court that there exists a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt is well established.”) (citing cases construing Fifth Amendment). Certainly, Turner made this declaration, but the observation is hardly empirical and, in any event, in cases like this one (at best involving cooperation followed by silence before arrest and innocuous commentary), the observation, even if generally valid, is far less compelling—a reminder of the mischief that can be caused by constitutional over-generalization. Furthermore, to the extent the jury was tempted to draw an adverse inference, and to the extent the prosecutor can be said to have invited the jury to do so, defense counsel was free to argue from the trial evidence that there are many other possible reasons for a person's refusal to come to the police station. Not every trial event implicates constitutional values. But every trial event is subject to screening for relevance. Appellee here, however, did not forward this objection, either; and so, the trial court again cannot be said to have erred.

Finally, on the merits of the state constitutional issue addressed by the Justices supporting affirmance, I offer the following. There certainly have been state constitutional holdings rendered in this general area, as ably described by the OAJC. But, in my view, the decisions are a doctrinal disaster, and further counsel a nonconstitutional focus. The foundational decisions in the area obviously were powered by federal constitutional law. See e.g., Quinn v. U.S., 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955) (no ritualistic formula is necessary in order to invoke Fifth Amendment privilege). The real explosion occurred only after the High Court's “prophylactic” warnings decision governing custodial interrogation in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a case which itself is not exactly a paragon of clear constitutional explication. See Dickerson v. U.S., 530 U.S. 428, 443–44, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (declining to overrule Miranda premised upon stare decisis concerns, including that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture”).

Soon after Miranda, the High Court recognized an exception to its rule of exclusion, holding in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), that a statement held to be inadmissible during the prosecution's case-in-chief because the defendant had not been advised of the right to remain silent during custodial interrogation could nevertheless be used for impeachment of a testifying defendant. Not coincidentally, the first decisions from this Court discussing the Pennsylvania Constitution were a response to Harris. Thus, the three-Justice plurality opinion in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), would have departed from Harris and held that a properly suppressed statement could not be used for impeachment purposes, premised upon Article I, Section 9 of the Pennsylvania Constitution. However, that plurality opinion did not include a syllable of state constitutional explanation—a strange circumstance, indeed, since the entire area of concern sprang from Miranda and its progeny. In any event, the effect (and uncertainty) of Triplett was remedied by the citizens of Pennsylvania via an explicit 1984 amendment to Article I, Section 9, obviously designed to ensure that Pennsylvania constitutional law was coterminous with federal law.

There had been no independent Pennsylvania constitutional inroads in this area, in majority decisions at least, prior to the federal dictate in Doyle, supra, 426 U.S. at 617–18, 96 S.Ct. 2240 (every post-arrest silence is insolubly ambiguous because of what state is required to advise person arrested under Miranda ) (citing U.S. v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (inherent pressures of in-custody interrogation compound difficulty of identifying reason for silence)). And, as I have stated above, the 4–3 state constitutional holding in Turner, including the citation to Fifth Amendment cases as support for the supposed ineluctable perspective that all juries bring to bear on a reference to silence, was unsupported by anything in Pennsylvania constitutional doctrine. What is most notable, at least from my perspective, is that while the Turner Court dressed up its analysis in state constitutional garb, its reasoning in fact had more to do with simple evidentiary relevance. See 454 A.2d at 539 (“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, 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.”).

Furthermore, a subsequent state constitutional decision, Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996), is in apparent tension with Turner. In Bolus, this Court held that reference to a testifying defendant's pre-arrest silence during his trial testimony did not violate the Fifth Amendment or Article I, Section 9 of the Pennsylvania Constitution and, as such, Bolus provides further support for my preference for a nonconstitutional basis for deciding pre-arrest silence cases. In holding that trial counsel was not ineffective for failing to object to the prosecutor's use of Bolus's silence to impeach his credibility, the Bolus Court itself distinguished the facts before it from Turner based on the timing of the referenced silence. 680 A.2d at 843 (“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. In the instant matter, the prosecutor questioned [Bolus] regarding his silence which occurred months before he was arrested.”). In this case, of course, we are also presented with alleged commentary on pre-arrest silence, though not in the context of impeachment during a testifying defendant's trial testimony. As a matter of state constitutional explication, the Bolus case is no more helpful than Turner. This doctrinal mishmash is a further reason to tread cautiously before constitutionalizing a solution to a problem that sounds, primarily, in relevance.

For the reasons I have outlined, I do not believe that the trial court erred. Moreover, I view the core problem in this area not to be a constitutional one, but a question of relevance respecting what inferences can be drawn from silence—or noncooperation, for that matter—which is a point long made by this Court. See, e.g., Dravecz, 227 A.2d at 907. I would reverse and reinstate the judgment of sentence.

Justice EAKIN, dissenting.

My colleagues frame the Superior Court's sole rationale for reversal as “the prosecutor utilized [appellee]'s refusal to speak further with the detective as substantive evidence of his guilt in his closing argument.” Opinion Announcing Judgment of Court, at 436. Appellee puts it this way in his brief: “The Fifth Amendment violation did not occur when [appellee] refused to talk, or even at the time that the testimony of [his] silence was presented for another purpose; the violation occurred when the prosecutor told the jury to use [appellee]'s silence to convict him.” Appellee's Brief, at 14. He contends “[t]he prosecutor in this case during his closing argument told the jury that [his] silence prior to being arrested showed proof of guilt.” Id.

Thus, the issue before us is quite limited: whether the prosecutor's narrow remark constituted an improper reference to the accused's articulated exercise of his right against self-incrimination. I find three major problems with the decision to affirm the grant of a new trial on this basis.

First, there was no “silence” for the prosecutor to refer to in the first place—appellee verbalized a refusal to go to the police station, terminating a phone call which was initiated by appellee himself. This is not silence at all—it was an affirmative statement unrelated to an exercise of rights.

Secondly, there was no assertion whatsoever of the right against self-incrimination, express or implied, much less one which was unequivocal. Even if the Pennsylvania Constitution is implicated here, and even if that were to require the analysis my colleagues suggest, there must still be some affirmative evidence of that invocation; here, there was none.

Finally, the prosecutor's reference was to factual testimony already heard by the jury, which is unchallenged herein. Any effort to “utilize” the evidence or make argument about its significance was preempted by timely objection.

Respectfully, the prosecutor never committed the sins laid at his feet. He never told the jury appellee's “refusal to speak further” or his “silence” showed guilt. Whatever additional comments might have been considered by the prosecutor, the record shows he never utilized appellee's refusal at all—the timely objection by vigilant defense counsel cut short any utilization. The prosecutor repeated the acknowledged facts and testimony about appellee's refusal to continue the conversation at the police station; when he asked “and why?” the objection was lodged and nothing followed—the record shows the refusal was never argued. Had there been no objection, perhaps there might have been argument about the inferences that logically flow from a sudden shift from self-initiated cooperation, but the objection prevented it. The prosecutor never said his “silence prior to being arrested showed proof of guilt.”Cf. id. My colleagues adopt appellee's conclusory version of the statement, but the record shows clearly that the significance of the termination of the phone call was not argued to the jury at all. The very premise of appellee's complaint does not exist.

Even had such an argument been made by the prosecutor, a lawyer's argument is never substantive evidence. See Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 280 (2008) (“[A]rguments of counsel are not evidence [.]”). An argument takes the evidence the jury has already heard and suggests its relevance or importance and points out logical inferences. Absent a limiting order not present here, it is hardly a constitutional violation to refer to the evidence properly before the jury, which in this case included appellee's declining to go to the station. Whatever the value of that evidence, it was properly before the jury long before the prosecutor repeated it, and there was no argument involving silence. This isolated reference, 29 pages into the transcript of the closing argument, was a reference to existing evidence and was at most a mere preface to something that ultimately never happened. It is difficult to understand how it becomes a constitutional violation to repeat, without argument, affirmative evidence which no one argues was improperly admitted.

To complain of denial of the right against self-incrimination under either the federal or state constitution, one must empirically invoke that right. Such an invocation was never expressed and, in my judgment, is not reasonably inferred from appellee's declination to continue the conversation at the police station. I agree that “talismanic invocation of the constitutional provision” is not required to invoke the right, see Opinion Announcing Judgment of Court, at 439, but this does not excuse the obligation to say or do something to invoke it. The right still must be affirmatively asserted—a defendant “must claim it or he will not be considered to have been ‘compelled [.]’ ” Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (citation and internal quotation marks omitted). According to the lead opinion, this Court's state constitutional precedent has not required express invocation of the right against self-incrimination, but rather is “more aligned with” the reasoning of the Salinas ¹ dissent, which inferred invocation of the right from surrounding circumstances. See Opinion Announcing Judgment of Court, at 437–38. We have not adopted any such principle heretofore. In support, the lead opinion also cites Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005), where this Court stated a defendant's refusal to give his whereabouts on a specific date constituted invocation of his right against self-incrimination.

Chmiel and Salinas both involve custodial interrogations—they occurred while the accused was in what cases describe as the coercive clutches of the police. Specifically, Chmiel was in custody when police asked where he was on the night of the murder; he replied, “ ‘I don't think I better talk about that.’ ” Id., at 529. Chmiel does not comprise a departure from federal Fifth Amendment jurisprudence, which requires a clear invocation of the right against self-incrimination. Factually, the case includes an unequivocal statement that Chmiel did not wish to speak of the matter further. That contrasts sharply with the present non-custodial, pre-discovery-of-a-crime phone conversation, initiated by appellee, which terminated with a verbalized declination to go to the police station.²

Salinas was a fractured decision, but a majority of the Court clearly found no express invocation of rights. Salinas, in custody, stood mute, and intuiting invocation from the circumstances was not approved. However, the dissent, finding the circumstances sufficient to infer an invocation of the Fifth Amendment, emphasized “[p]olice ... made clear that [Salinas] was a suspect” and “[h]is interrogation took place at the police station.” Salinas, at 2189 (Breyer, J., dissenting). Here, again in stark contrast, appellee was not in custody. He did not stand mute. He was not told he was a suspect at all when he spoke to the detective—indeed, there was no known crime at this point, nor was that implied by police in any way. His refusal to meet with detectives occurred at the end of a voluntary telephone conversation, contact with police he initiated himself. Two factors emphasized by Justice Breyer were police-station interrogation and the declaration the person was a suspect—neither exists here. Even if Pennsylvania constitutional jurisprudence ignored the Salinas majority and aligned itself with the Salinas dissent, there was no invocation of rights in the present case. A fortiori, this was not just a pre-arrest scenario—this was a pre-discovery-there-was-even-a-crime scenario. Unlike the defendants in Salinas and Chmiel, appellee did not respond to interrogation that might incriminate him; there are no facts indicating police treated him as a suspect or suggested there was even a crime to be talked about. When he called, this was presented to appellee as a missing persons matter, nothing more. While appellee stated “it was on the street,” there was no express or implied effort by police suggesting they wished to extract incriminating evidence from him. Appellee volunteered information over the phone, then declined to meet with the detective in person. This was neither “silence” nor the invocation of rights.³

This case simply does not include “silence in the face of police questioning”—it involves termination of a self-initiated monologue without police questioning, without arrest, without suggestion of suspect status, and really without silence. Even the lead opinion acknowledges “a defendant's silence in the face of police questioning is ‘insolubly ambiguous' as it could be indicative of a busy schedule, a distrust of authority, an unwillingness to snitch, as much as it is indicative of guilt.” Opinion Announcing Judgment of Court, at 451. The action taken by the present appellee is certainly less ambiguous than silence, but even if equally ambiguous, the ambiguity precludes us from assuming—as a constitutional matter—that appellee declining the detective's invitation must necessarily constitute an invocation of his constitutional rights, rather than one of the myriad of other possible explanations.

Finally, even if the right against self-incrimination were applicable to pre-arrest silence, much less pre-discovery-of-a-crime silence, and even if appellee had somehow properly invoked it, he still would not be entitled to relief, as he must show prejudice, which is not established by a prosecutor's mere mention of testimony already admitted at trial. See Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329, 336–37 (2005) (citation omitted); Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 478 (1998) ( “Even an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt.” (citation omitted)).

Here, the prosecutor did nothing more than recapitulate testimony the lead opinion concedes was properly admitted. The absolute most that can be said is that the prosecutor asked the jurors to “[f]actor that in” when making their decision. N.T. Trial, 12/14–20/06, at 581. Indeed, this statement came after he enumerated the much more significant contradictions in appellee's statement—it is not clear that this isolated throwaway comment referred to the refusal to go to the station at all.

And while the single sentence at issue is assumed to have “emphasized” appellee's lack of cooperation with police, see Opinion Announcing Judgment of Court, at 452–53, that is what a closing argument is—emphasizing the evidence in a persuasive manner. The really worthwhile evidence to be factored in was the contradictions preceding the termination of the phone call, which were spoken of in detail immediately before mention of the refusal. Which was to be “factored in”? Any emphasis is really a matter of speculation, given we are limited to a transcript that reveals no emphasis at all. The prosecutor certainly did not make this the crux of the argument, and even if it can be read to refer only to the refusal to go to the station, this comprised a miniscule fraction of what was said. Reversal is appropriate only where the context of the statement is “likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt[,]” Whitney, at 478 (citation omitted), which cannot be found under these circumstances where any such argument was cut off by the prompt objection.

Accordingly, while the history of this line of cases as set forth by the lead opinion is intellectually appealing, it is inapplicable to the facts of this case. It is an expansive step to extend precepts from post-arrest cases to pre-arrest circumstances, much less pre-discovery-of-a-crime circumstances, and we certainly should not do so by means of a case where there was no silence, no invocation of rights, and no prosecutorial comment at all about silence or the meaning of testimony which the jury already heard without challenge.

The premise of any argument requires that the factual basis of the issue exists; merely saying so here begs the question. The testimony shows there was no silence. The record shows there was no invocation of rights, express or implied. Most importantly, the trial transcript shows beyond argument that the underlying premise of appellee's claim is not true: the prosecutor never said or implied to the jury that appellee's “silence” was substantive evidence or indicative of guilt.

Thus, as I would reverse the decision of the Superior Court and reinstate appellee's convictions and judgment of sentence, I respectfully dissent.