[J-55-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 25 WAP 2012
:
Appellant : Appeal from the Order of the Superior
: Court entered November 9, 2011 at No.
: 1948 WDA 2007, reversing and vacating
v. : the Judgment of Sentence of the Court of
: Common Pleas of Allegheny County
: entered March 15, 2007 at CP-02-CR-
MICHAEL MOLINA, : 0007403-2004 and CP-02-CR-0009547-
: 2004 and remanding.
Appellee :
: ARGUED: September 10, 2013
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
MR. JUSTICE BAER DECIDED: NOVEMBER 20, 2014
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
[J-55-2013] - 2
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.
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
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.
[J-55-2013] - 3
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
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 39.
[J-55-2013] - 4
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.
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
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.
[J-55-2013] - 5
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).
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.
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
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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.
[J-55-2013] - 6
“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
(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
(1976)).
In considering the time period between arrest and the provision of Miranda
warnings, the Superior Court found the caselaw to be more muddled than the first two
time frames. It recognized that the United States Supreme Court in Fletcher v. Weir,
455 U.S. 603 (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, 454 A.2d 537, 540 (Pa. 1982), concluded that the
Pennsylvania Constitution protected a defendant’s silence during the post-arrest, pre-
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, 586 A.2d 887, 894 (Pa. 1991). As noted, our holding today is based on the
Pennsylvania Constitution.
[J-55-2013] - 7
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 (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, 680 A.2d 839 (Pa. 1996), when it
likewise held that impeachment of a defendant’s testimony with reference to pre-arrest
silence does not violate a defendant’s right against self-incrimination under the
Pennsylvania Constitution, but did not speak to whether the silence could be used as
substantive evidence of guilt if the defendant did not testify. Moreover, the court
recognized that in Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005), we held that
the prosecution could use a defendant’s pre-arrest silence not only to impeach a
defendant’s testimony but as fair response to defense arguments.
The Superior Court acknowledged that none of the above-referenced cases
addressed a defendant’s pre-arrest silence where the defendant had neither waived his
right to self-incrimination by testifying nor opened the door to the Commonwealth’s use
of his silence as a fair response to defense arguments. Additionally, the court observed
that the federal circuit courts and state courts are divided upon this issue. Molina, 33
A.3d at 62 (collecting cases). The Superior Court concluded that Pennsylvania should
align itself with those jurisdictions which have held that the use of a non-testifying
defendant’s pre-arrest silence as substantive evidence of guilt violates the defendant’s
right against self-incrimination. The Superior Court opined, “If the prosecution were
[J-55-2013] - 8
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,
[J-55-2013] - 9
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, 51 A.3d 181, 182 (Pa. 2012).
I. Salinas v. Texas
In February 2013, we placed the case on hold pending the decision of the United
States Supreme Court in Salinas v. Texas, which, inter alia, raised a claim regarding the
use of pre-arrest silence as substantive evidence. As discussed below, the plurality
decision of the High Court in that case did not resolve the issue, but instead affirmed the
use of the defendant’s silence in a fractured decision. Salinas v. Texas, __ U.S. __, 133
S.Ct. 2174 (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.
[J-55-2013] - 10
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 Salina’s
claims because “he did not expressly invoke the privilege against self-incrimination in
response to the officer’s question.” Id. at 2178. Two concurring justices did not address
the issue of express invocation, but opined that “Salinas' claim would fail even if he had
invoked the privilege because the prosecutor's comments regarding his precustodial
silence did not compel him to give self-incriminating testimony.” Id. at 2184 (Thomas,
J., concurring). Finally, four dissenting justices determined that no ritualistic language
was needed to invoke the right against self-incrimination, which was implied by the
circumstances, and concluded that Salina’s right was violated. Id. at 2189-2191.
Accordingly, as three justices opined that Salinas did not properly invoke his privilege
and two justices concluded that the privilege never applies to pre-arrest silence, five
justices held that Salinas should not obtain relief. Given the absence of a majority on
any rationale, the splintered decision, however, fails to provide guidance as to whether
pre-arrest silence is ever protected under the Fifth Amendment if sufficiently invoked or
what constitutes sufficient invocation of the right.
A search of our caselaw interpreting both the state and federal protections does
not reveal any prior insistence by this Court that there be an express invocation of the
right against self-incrimination. Instead, our precedent is more aligned with the
dissenting four justices in Salinas, who concluded that the no ritualistic language is
needed but rather found that invocation of the right may be apparent from the
circumstances surrounding the defendant’s statement. See, e.g., Commonwealth v.
[J-55-2013] - 11
Chmiel, 889 A.2d 501, 529-31 (Pa. 2005) (viewing statement “I don’t think I better talk
about that” as invocation of right to remain silent after initial waiver of Miranda rights).
As applied to this case, we determine that Defendant’s actions in affirmatively
and definitively refusing to come to the police station and ending the phone call were
sufficient to invoke his right against self-incrimination and are distinguishable from
Salinas’s temporary muteness sandwiched between voluntary verbal responses to
police questioning. Defendant’s invocation is clarified upon consideration of the
circumstances of the case. Regardless of whether Defendant had been officially
designated a suspect, the detective’s testimony demonstrated that Defendant and the
detective were aware during the phone call that “[i]t was out on the street that someone
said that [Defendant] was involved in her being missing.” N.T., Dec. 14-20, 2006, at
480. Indeed, the prosecutor’s closing argument emphasized the detectives’ suspicions,
noting that three days after Victim’s disappearance, they were “knocking on the
defendant's door because of something they heard, maybe he was holding this person
against their [sic] will.” Id. at 579. Moreover, it appears that the detective’s suspicions
were further raised when Defendant contradicted himself in regard to when he had last
seen Victim, prompting her to request that he come to the station. Thus, at the least,
both parties to the phone call were aware that he was suspected in the disappearance
of Victim, even though the detective was unaware that the case involved a murder. We
conclude that refusing to come to the police station to speak further with a detective and
ending the phone call, in light of the circumstances of the case, constitutes an
invocation of his right against self-incrimination, even absent a talismanic invocation of
the constitutional provision.
II. Constitutionality of the Use of Pre-Arrest Silence as Substantive Evidence
[J-55-2013] - 12
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, 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, 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, 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, 680 A.2d 839, to pre-arrest silence in
impeachment cases, instead finding persuasive the decision in Jenkins, 447 U.S. 231
(concluding no due process or Fifth Amendment violation when using defendant’s pre-
[J-55-2013] - 13
arrest silence as impeachment evidence). The Commonwealth contends that the sole
distinguishing factor between our decisions in Turner and Bolus is the timing of the
silence in relation to the arrest.
Noting that Bolus did not provide any rationale for the distinction between pre-
and post-arrest, the Commonwealth ventures that the distinction is based upon the
proposition that a defendant in custody is compelled to give evidence against himself.
The Commonwealth emphasizes that the United States Supreme Court relied heavily
on the issue of compulsion in Miranda. In contrast, the Commonwealth argues that
defendants in the pre-arrest setting have not been removed from their normal
surroundings and are not in custody such that one is “not under any compulsion to
incriminate himself.” Com. Brief at 23. The Commonwealth relies upon Justice John
Paul Stevens’ concurring opinion in Jenkins where he stated, “the privilege against
compulsory self-incrimination is simply irrelevant to a citizen’s decision to remain silent
when he is under no official compulsion to speak.” Id. at 24 (quoting Jenkins, 447 U.S.
at 241 (Stevens, J., concurring)). Applying this language to the facts of this case, the
Commonwealth contends:
Given that [Defendant] was not only not under arrest when
speaking with [the detective] but also not surrounded by
antagonistic forces - rather, he was in his own home and
talking to the officer on the phone during a call that he
voluntarily made - there would seem to be no question that
he was not in any way compelled to incriminate himself at
that point.
[J-55-2013] - 14
Com. Brief at 25. Accordingly, the Commonwealth urges the Court to align with
jurisdictions which have found the Fifth Amendment does not prohibit the use of pre-
arrest silence as substantive evidence.7 8
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.
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, 279 P.3d 640, 645 (Ariz. Ct. App.
2012); State v. Leecan, 504 A.2d 480 (Conn. 1986); People v. Schollaert, 486 N.W.2d
312 (Mich. App. 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, 716 A.2d 14 (Vt. 1998).
8
The Pennsylvania District Attorneys Association filed an amicus curiae brief in
support of the Commonwealth.
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, 965 P.2d 174 (Idaho
1998); Commonwealth v. Thompson, 725 N.E.2d 556 (Mass. 2000); State v. Rowland,
452 N.W.2d 758 (Neb. 1990); State v. Cassavaugh, 12 A.3d 1277 (N.H. 2010); State v.
Leach, 807 N.E.2d 335 (Ohio 2004); State v. Palmer, 860 P.2d 339, 349 (Utah Ct. App.
1993); State v. Easter, 922 P.2d 1285 (Wash. 1996); State v. Fencl, 325 N.W.2d 703
(Wis. 1982); Tortolito v. State, 901 P.2d 387 (Wyo. 1995).
[J-55-2013] - 15
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,
58 A.3d 754, 762 (Pa. 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
[J-55-2013] - 16
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,
812 A.2d 591, 607 (Pa. 2002) (addressing freedom of expression) (citing
Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992) (extending double jeopardy
protection under Pennsylvania Constitution) and Ins. Adjustment Bureau v. Ins. Comm'r,
542 A.2d 1317, 1324 (Pa. 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, 598 A.2d 975, 979 n.8 (Pa. 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,
586 A.2d 887, 894 (Pa. 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
[J-55-2013] - 17
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
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).
[J-55-2013] - 18
1776., and appeared (not coincidentally) first in that document.” Edmunds, 586 A.2d at
896.
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, 664 A.2d
957, 961 (Pa. 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
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.
[J-55-2013] - 19
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,
341 A.2d 62 (Pa. 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).
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
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.
[J-55-2013] - 20
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
[J-55-2013] - 21
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 (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, 723 A.2d 162, 166
(Pa. 1999).13 Similarly, we opined generally that we should not extend rights under our
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:
(continuedS)
[J-55-2013] - 22
Pennsylvania Constitution beyond those in the federal charter absent “a compelling
reason to do so.” Commonwealth v. Gray, 503 A.2d 921, 926 (Pa. 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, 681 A.2d 1254, 1258 (Pa. 1996).
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, 454 A.2d 537 (rejecting Fletcher v. Weir, 455
U.S. 603, and holding that reference to post-arrest, pre-Miranda silence violates Article
I, Section 9); Triplett, 341 A.2d 62 (plurality) (diverging, under the lead opinion, from
Harris v. New York, 401 U.S. 222 (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
(Scontinued)
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.
[J-55-2013] - 23
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
[J-55-2013] - 24
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 (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,
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 (1990) (quoting Doe v. U.S., 487 U.S.
210, 212 (1988)).
[J-55-2013] - 25
The Pennsylvania Constitution, § 12.6(a), at 386 (internal quotations, citations and
footnote omitted).
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, 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, 227 A.2d 904, 907 (Pa. 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
15
As discussed infra at 33 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.
[J-55-2013] - 26
of a crime may also remain silent for fear that their explanation will not be believed or to
protect another. Molina, 33 A.3d 65-66.
Since Griffin, the protection of a defendant’s silence has become imbedded in
our jurisprudence. See, e.g., Com. v. Wright, 961 A.2d 119, 143 (Pa. 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, 350 A.2d 826, 828 (Pa. 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, 296 A.2d 765, 767 (Pa. 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 (1956)); see also Commonwealth v. Singletary, 387 A.2d 656, 657
(Pa. 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
[J-55-2013] - 27
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 (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 (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.
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.
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 30.
[J-55-2013] - 28
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, 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, 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
[J-55-2013] - 29
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, 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.
The High Court, in a per curiam opinion in Fletcher, 455 U.S. 603, 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, 454 A.2d 537. While Doyle and
[J-55-2013] - 30
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, 396
A.2d 1198, 1200-01 n.5 (Pa. 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
4. Pre-Arrest Silence
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 (1979),
where the High Court found evidence of an implicit waiver of rights to be sufficient.
Commonwealth v. Bussey, 404 A.2d 1309, 1314-5 (Pa. 1979) (plurality).
[J-55-2013] - 31
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, 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 pre-
arrest 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
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, 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
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.
[J-55-2013] - 32
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 (1999) (Scalia, J., dissenting); Jenkins, 447
U.S. at 241 (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
[J-55-2013] - 33
(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, 495
S.E.2d 522, 528 (Va. Ct. App. 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
[J-55-2013] - 34
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, 425 A.2d 387, 392 (Pa. 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
[J-55-2013] - 35
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
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, 965 P.2d 174 (Idaho 1998); State v. Lovejoy, 89 A.3d 1066 (Me.
2014); Commonwealth v. Thompson, 725 N.E.2d 556 (Mass. 2000); State v. Rowland,
452 N.W.2d 758 (Neb. 1990); State v. Cassavaugh, 12 A.3d 1277 (N.H. 2010); State v.
Boston, 663 S.E.2d 886 (N.C. St. App. 2008); State v. Leach, 807 N.E.2d 335 (Ohio
2004); State v. Palmer, 860 P.2d 339 (Utah Ct. App. 1993); Taylor v. Commonwealth,
495 S.E.2d 522 (Va. Ct. App. 1998) (based upon Virginia constitutional provision); State
v. Easter, 922 P.2d 1285 (Wash. 1996); State v. Fencl, 325 N.W.2d 703 (Wis. 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, 279 P.3d 640, 645 (Ariz. Ct. App.
2012); People v. Schollaert, 486 N.W.2d 312 (Mich. Ct. App. 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, 133 S.Ct 2174 (2013); State v. LaCourse, 716
A.2d 14 (Vt. 1998).
[J-55-2013] - 36
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.
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
[J-55-2013] - 37
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
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
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, 873 A.2d 698, 701-02 (Pa. 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 (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.
[J-55-2013] - 38
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, 383 A.2d 155, 162 (Pa.
1978) (citing Chapman v. California, 386 U.S. 18, 21 (1967)) see also Commonwealth v.
Murray, 83 A.3d 137, 165 (Pa. 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.
[J-55-2013] - 39
Wright, 961 A.2d at 143 (quoting Commonwealth v. Young, 748 A.2d 166, 193 (Pa.
1999) and Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 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
[J-55-2013] - 40
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,
[J-55-2013] - 41
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, 305 A.2d 715, 719 (Pa. 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.
Mr. Justice Stevens did not participate in the consideration or decision of this
case.
Former Justice McCaffery did not participate in the decision of this case.
Mr. Justice Saylor files a concurring opinion in which Madame Justice Todd joins.
Mr. Chief Justice Castille files a dissenting opinion.
Mr. Justice Eakin files a dissenting opinion.
[J-55-2013] - 42