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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAMETT DIAZ :
:
Appellant : No. 1965 EDA 2019
Appeal from the PCRA Order Entered June 11, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000396-2014
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: Filed: May 7, 2020
Hamett Diaz appeals from the June 11, 2019 order denying his petition
for relief under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. After thorough review, we affirm.
We reproduce the trial court’s summary of the underlying facts from this
Court’s opinion on direct appeal:
[Appellant] is the stepfather of K.C., a 15 year old female. K.C.
has a 17 year old friend, K.O., who is the victim (hereinafter
referred to as “Victim”). On October 19, 2013, at around 12:00
p.m., [Appellant] drove K.C. and Victim from Blakeslee, Monroe
County, Pennsylvania to New York City, NY, so that K.C. and
Victim could get their nails done. During the drive, [Appellant]
furnished K.C. and Victim with alcohol. [Appellant] also drank
alcohol. While in New York when K.C. was getting her nails done,
[Appellant] and Victim went to a liquor store in order to purchase
more alcohol.
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* Retired Senior Judge assigned to the Superior Court.
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After K.C. and Victim were finished with their nails, [Appellant],
K.C., and Victim headed back to Pennsylvania. Upon returning
to Pennsylvania, they stopped at a Burger King restaurant for
Victim to use the bathroom. Victim was so intoxicated, she
required assistance walking to and using the bathroom. Around
11:00 p.m., [Appellant], K.C. and Victim arrived back at
[Appellant] and K.C.'s home in Blakeslee. When they arrived at
the home, [Appellant] sent K.C. into the house to see if K.C.'s
mother, [Appellant’s] wife, was awake.
After K.C. went into the house, [Appellant] drove off with the
Victim to a secluded service road. At this point, Victim began
zoning in and out. After pulling onto the service road, Victim
recalls [Appellant] getting out of the minivan, opening the trunk
door, and laying out the backseat. [Appellant] then called Victim
to move to the back of the minivan. When Victim moved to the
back of the minivan she hit her head. The next thing Victim
recalls she was lying on her back in the rear of the minivan.
Victim then remembers [Appellant] putting his mouth on her
vagina. Victim recalls [Appellant] putting his penis in her vagina.
She testified that she was in and out of consciousness and that
she was so intoxicated she was slurring her words and unable to
speak.
[Appellant] and Victim arrived back at [Appellant] and K.C.’s
house and she was unable to walk. Victim stated she “crawled”
up the stairs. When Victim entered the house, she was crying
and she immediately told K.C. that she and [Appellant] had
driven down the mountain and she believed “something may
have happened.” K.C. then helped Victim wash up, get changed,
and get into bed.
Victim later woke up around 4:00 a.m. on October 20, 2014, and
told K.C. that she thought [Appellant] had sex with her. K.C.
confirmed that Victim had come back to the house crying. Victim
then called her ex-boyfriend about the incident. Victim’s ex-
boyfriend told his mother; the ex-boyfriend's mother called
Victim’s mother who called the police. Victim’s mother then
drove to [Appellant’s] house and waited with Victim until the
police arrived. The police arrived with an ambulance and Victim
was transported to the hospital.
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Commonwealth v. Diaz, 152 A.3d 1040, 1042 (Pa.Super. 2016) (quoting
Trial Court Opinion, 10/2/15, at 1-3).
Appellant was convicted by a jury of rape of a person who is
unconscious, aggravated indecent assault, unlawful contact with a minor,
corruption of minors, and endangering the welfare of children. The trial court
sentenced him to a mandatory minimum sentence on the rape conviction
pursuant to 42 Pa.C.S. § 9714(a)(2) (“Where the person had at the time of
the commission of the current offense previously been convicted of two or
more such crimes of violence arising from separate criminal transactions, the
person shall be sentenced to a minimum sentence of at least 25 years of total
confinement”). On appeal, this Court vacated the judgment of sentence after
concluding that the mandatory minimum sentence was inapplicable. Appellant
was resentenced on September 8, 2017, to an aggregate term of incarceration
of 140 to 280 months, and he did not file a direct appeal.
On September 15, 2018, Appellant filed the instant, counseled PCRA
petition in which he identified three omissions of trial counsel that he
contended deprived him of a fair trial. First, he faulted counsel for failing to
object to inculpatory hearsay testimony elicited from Victim. Second, he
alleged that counsel should have called four witnesses, some of whom would
have impeached Victim’s testimony regarding her level of intoxication and
others also offering testimony as to the reasons why Appellant went to New
York the next day. Several of the witnesses would have confirmed that
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Appellant’s minivan remained in Appellant’s driveway for at least one week in
order to contradict State Police Trooper Wesnak’s testimony that he did not
obtain a search warrant for DNA testing on the minivan because he could not
locate it until such time as the testing would have been futile. Finally,
Appellant alleged that counsel was ineffective when he failed to object and
seek a curative instruction when the Trooper testified that Appellant opted not
to answer questions on the advice of his attorney.
Following an evidentiary hearing on March 25, 2018, the PCRA court
concluded that no relief was due. Appellant timely appealed, and both
Appellant and the PCRA court complied with Pa.R.A.P. 1925. Appellant
presents three issues for our review:
I. Whether the trial court erred in denying the [PCRA] Petition
where trial counsel was ineffective in failing to object to the
admission of hearsay testimony in which multiple witnesses
testified that [Appellant’s] step-daughter, K.C., confirmed
that [Appellant] raped [Victim] and encouraged [Victim] to
call for help.
II. Whether the trial court erred in denying the[PCRA] Petition
where trial counsel was ineffective in failing to call defense
witnesses who would have directly impeached critical
testimony from the Commonwealth’s witnesses such as the
allegations that [Victim] was too intoxicated to consent to
sexual intercourse and that [Appellant] had tampered with
the alleged crime scene and fled the jurisdiction.
III. Whether the trial court erred in denying the [PCRA] Petition
where trial counsel was ineffective in failing to object to the
investigating officer’s disparagement of [Appellant’s]
refusal to give a statement and instead hire an attorney on
the basis that the testimony violated [Appellant’s] rights to
counsel and his rights against self-incrimination under the
Pennsylvania and United States Constitutions.
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Appellant’s brief at vi.
On appeal from the denial of PCRA relief,
our standard of review calls for us to determine whether the ruling
of the PCRA court is supported by the record and free of legal
error. The PCRA court's credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court's legal
conclusions.
Commonwealth v. Williams, 196 A.3d 1021, 1026-27 (Pa. 2018) (internal
citations and quotations omitted).
All three of Appellant’s issues involve claims of ineffective assistance of
counsel. The law is well settled that counsel is presumed effective.
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). In order
to overcome that presumption, “a PCRA petitioner must plead and prove that:
(1) the legal claim underlying the ineffectiveness claim has arguable merit;
(2) counsel’s action or inaction lacked any reasonable basis designed to
effectuate petitioner’s interest; and, (3) counsel’s action or inaction resulted
in prejudice to petitioner.” Commonwealth v. Mason, 130 A.3d 601, 618
(Pa. 2015).
In determining whether counsel had a reasonable basis, the issue is not
“whether there were other more logical courses of action which counsel could
have pursued[,]” but “whether counsel’s decisions had any reasonable basis.”
Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014) (citations omitted).
If it is a matter of strategy, we will not find a lack of reasonable basis unless
“an alternative not chosen offered a potential for success substantially greater
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than the course actually pursued.” Commonwealth v. Spotz, 84 A.3d 294,
311-12 (Pa. 2014). In order to demonstrate prejudice, “a petitioner must
show that there is a reasonable probability that, but for counsel’s actions or
inactions, the result of the proceeding would have been different.” Mason,
supra at 389. All three prongs of the test must be satisfied in order for a
petitioner to be entitled to relief. Id.
We turn first to Appellant’s claim that counsel was ineffective when he
failed to object to Victim’s testimony recounting her conversations with K.C.
Victim testified to the following. She awoke at 4:30 a.m., and she told K.C.
that she had a crazy dream. K.C. replied, “it wasn’t a dream.” N.T. Trial Vol.
I, 2/11/15, at 51. K.C. added, “everything you told me, it happened.” Id.
According to Victim, K.C. told her she “needed to tell somebody.” Id. Victim
also recounted a telephone conversation she overheard between K.C. and
Victim’s former boyfriend in which K.C. told him “my stepfather [Appellant]
raped [Victim].” Id. at 52. Defense counsel did not object to any of the
foregoing hearsay testimony, and Appellant claims on appeal that counsel had
no reason not to object.
At the evidentiary hearing, trial counsel offered the following strategic
basis for not objecting to the hearsay testimony. He “wanted the testimony
in” because it supported the defense theory that Victim was intoxicated and
uncertain of what had occurred, and that K.C. “planted the seed” of the rape.
N.T. PCRA Hearing, 3/25/19, at 24. In counsel’s view, the hearsay testimony
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obviated the need for the defense to call K.C., whom counsel believed would
not have offered testimony favorable to the defense. Id.
The PCRA court credited trial counsel’s explanation of the reason why
he did not object. PCRA Court Opinion, 6/11/19, at 11. The court also
concluded that counsel “acted with a strategic basis, which he designed to
advance an alternate theory that supports [Appellant’s] innocence.” Id. at
10. According to the PCRA court, both Victim’s hearsay testimony of her
conversation with K.C. and her account of K.C.’s conversation with Victim’s
boyfriend served the same strategic purpose, and thus, did not lack a
reasonable basis.
Appellant contends that counsel had no reasonable strategic basis for
failing to object to hearsay statements made by a non-testifying witness that
Appellant raped Victim. Appellant’s brief at 8. He alleges further that counsel
recognized the damaging nature of the statements when he established on
cross-examination that the declarant would not have had any personal
knowledge of whether a rape occurred. Id. Appellant maintains that, “to the
extent that trial counsel actually pursued a theory that [Victim] had confused
a dream for reality, trial counsel already had what he needed to argue such a
theory . . . without admitting inculpatory hearsay.” Id. at 9. He directs our
attention to Victim’s testimony that she believed the alleged incident was
dream. N.T. Trial Vol. 1, 2/11/15, at 170. He contends that counsel could
have argued that Victim imagined the incident without allowing hearsay
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evidence of statements by K.C. incriminating Appellant. Appellant argues in
the alternative that there were wiser strategies, such as arguing that Victim
“fabricated the assault allegations rather than explain to her friend that she
had consented to sexual intercourse with her friend’s married step-father.”1
Appellant’s brief at 10.
Counsel’s assistance is deemed constitutionally effective “if he chose a
particular course that had some reasonable basis designed to effectuate [the]
client’s interest.” Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa.
2012). Counsel admittedly chose a hybrid strategy, which required him to
walk a fine line between the scenario where Victim was so intoxicated that her
memory was unreliable, and the situation where, although she had been
drinking, she was not unconscious and, thus, capable of consenting. In either
scenario, there was no rape. With regard to the first strategy, counsel sought
to establish that K.C. made up the rape and suggested that it occurred to the
intoxicated and confused Victim. The value in the hearsay testimony lay in
painting K.C., whom counsel established was not present when the rape
allegedly occurred, who would have had no personal knowledge of the facts,
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1 In the PCRA court, Appellant argued that the only two realistic defenses once
the Commonwealth introduced DNA testimony were: (1) that Victim was
capable of consenting, in fact consented, and later fabricated the rape
allegation; or (2) that the DNA results were erroneous. See Defendant’s
Supplemental Brief, 5/12/19, at 4. The PCRA Court found that neither
strategy was “so much more likely to succeed that it made trial counsel’s
chosen defense unreasonable.” See PCRA Court Opinion, 6/11/19, at 10 n.4.
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and who did not testify at trial, as the fabricator of the rape story.
Furthermore, K.C. propagated the lie when she called Victim’s former
boyfriend to report it. Admittedly, the strategy was not successful, but it was
not unreasonable.
The existence of other strategies that may have offered a greater
likelihood of success is of no moment unless the petitioner proves that the
alternative not chosen offered a substantially greater potential for success,
which the PCRA court found Appellant did not demonstrate. Commonwealth
v. Williams, 732 A.2d 1167, 1189 (Pa. 1999). We find no error. Hence, no
relief is due on this claim.
Appellant’s second claim of ineffectiveness involves counsel’s alleged
failure to investigate and call four witnesses, three of whom were present
when he and Victim arrived home. Two of the proffered witnesses would have
offered testimony tending to explain that Appellant went to New York for fear
for his safety and established that the minivan where the alleged sexual
assault occurred remained in Appellant’s driveway for at least a week after
the incident. Such testimony, Appellant contends, would have undercut
Trooper Wesnak’s testimony implying that Appellant fled in the minivan to
avoid apprehension and that the minivan was unavailable for execution of a
search warrant.
All four witnesses testified at the evidentiary hearing. Appellant’s
stepson, Angel Ramos, and Mr. Ramos’s girlfriend, Iraida Geldres, testified
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that they were at Appellant’s home that evening when he and Victim returned.
Mr. Ramos stated that when Victim walked in, “she walked in normally. She
wasn’t stumbling or staggering or anything like that. She just went right
upstairs to my sister’s room.” N.T. PCRA Hearing, 3/25/19, at 32. He also
reported that he received a telephone call early in the morning from Appellant.
Appellant told him that “he was in trouble, that somebody was threatening his
life[,]” and “I believe that somebody had came to the front door with a
baseball bat and the husband . . . had a weapon . . . a firearm.” Id. at 34.
In response to that call, Mr. Ramos went to Appellant’s home, retrieved him,
and drove him to New York. At that time, Mr. Ramos saw the gray minivan
parked in the driveway by the side entrance to the house, and he testified that
the vehicle remained in that location for two weeks. Id. at 35.
Ms. Geldres confirmed that she saw Victim and Appellant briefly when
they entered the kitchen that night. Victim was walking fine and showed no
signs of inebriation. Id. at 43-44. Ms. Geldres stated that she would have
been willing to testify if she had been asked.
Another stepson, Andrew Cordova, testified that he saw Victim come
into the house and go upstairs. He saw nothing unusual in the way she
proceeded. She seemed perfectly fine and there was no indication that she
was intoxicated. Id. at 52-53. He also explained that, at around 2:00 or 3:00
a.m. that night, Victim’s parents banged on the door. Id. at 54. The mother
had a bat in her hand and the father carried a firearm. Id. The father said
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he was going to kill Appellant. Id. Mr. Cordova also testified that the van
remained in the driveway for one week, and that he then moved it elsewhere.
Id. at 56. Two weeks after the incident, Mr. Cordova drove it to New York
and left it with his stepfather. No one contacted Mr. Cordova to determine
what he knew about the incident or whether he was willing to testify, although
he was willing to testify.
The fourth proffered witness was Appellant’s cousin, Damaris Otero. Mr.
Otero confirmed that Appellant was dropped off at his home in New York, and
remained there for several weeks. While there, Appellant used Mr. Otero’s
truck, and Mr. Otero stated that he never saw Appellant with a van while he
was in New York. The witness stated that he would have testified if asked.
Trial counsel testified that he did not call Mr. Ramos, Ms. Geldres, and
Mr. Cordova because they would have undermined the defense’s theory that
Victim was so intoxicated that her memory was unreliable. Id. at 54. He only
called Appellant’s wife because he wanted the jury to see that they were still
together.
The PCRA court accepted that there were four witnesses willing and
available to provide allegedly exculpatory testimony for Appellant, that
Appellant informed his counsel of these witnesses, and that other trial
witnesses referred to them. Addressing first the question of whether counsel
was ineffective for failing to elicit testimony from these witnesses impeaching
Victim’s account of her intoxicated condition, the court concluded that
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counsel’s decisions “were strategic decisions done with a purpose, as part of
a coherent plan for the defense.” PCRA Court Opinion, 6/11/19, at 14.
Moreover, the court concluded that such testimony would have been
cumulative of the testimony offered by Nilda Diaz, Appellant’s wife, and thus,
there was no prejudice. See Commonwealth v. Spotz, 896 A.2d 1191, 1229
Pa. 2006) (finding no prejudice for purposes of PCRA where counsel failed to
introduce cumulative testimony of substance abuse).
In addition, the PCRA court found no prejudice as the testimony of these
witnesses “carried little probative value.” PCRA Court Opinion, 6/11/19, at
15. The court pointed to inconsistencies in the testimony of Mr. Ramos and
Ms. Geldres about their marital status, where they were standing when Victim
entered the home that night, and whether Mr. Ramos was smoking a cigarette
at the time. Their testimony also contradicted that of Appellant’s wife, who
told the jury that only her children were with her that night. In the court’s
view, the inconsistencies in the evidence diminished its value as impeachment,
and its admission would have not changed the outcome of the case. Id. at
16.
As the PCRA court has the opportunity to assess and weigh the
credibility of witnesses, we generally defer to its credibility determinations.
See Commonwealth v. Spotz, supra at 1227 (citing Commonwealth v.
Spotz, 870 A.2d 822, 836 (Pa. 2005)) (“Appellate courts do not act as fact
finders, since to do so would require an assessment of the credibility of the
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testimony and that is clearly not our function.”). We find support for the PCRA
court’s conclusion that the proffered testimony tended to undercut counsel’s
strategy, was cumulative of the testimony of Appellant’s wife, and contained
inconsistencies that rendered it weak impeachment evidence. In light of the
foregoing, Appellant failed to demonstrate that there was a reasonable
probability that, but for counsel’s failure to elicit the foregoing testimony from
these witnesses, the outcome of the trial would have been any different.
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001) (defining prejudice
in the PCRA context as a demonstration “that there is a reasonable probability
that, but for counsel’s error, the outcome of the proceeding would have been
different.”).
Appellant also contends that the proffered testimony of Mr. Ramos and
Mr. Cordova regarding the threats made against Appellant were critical to
rebut Trooper Wesnak’s implication that Appellant fled to avoid police
questioning. In addition, their testimony that the minivan remained in the
driveway tended to refute the Trooper’s testimony that he could not find and
impound the minivan and obtain a search warrant to examine it for DNA and
other evidence. Appellant maintains that, without the witnesses’ testimony,
the jury was left to infer that Appellant fled out of consciousness of guilt, and
that he hid the minivan to avoid its inspection and perhaps destroy evidence.
The PCRA court concluded that the proffered testimony did “not rebut
Trooper Wesnak’s testimony in any material way, and so would not have had
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a consequence on the trial.” PCRA Court Opinion, 6/11/19, at 18. The court
pointed to cross-examination of the Trooper that he did “not examine the van
because he did not know where it was and could not contact [Appellant] about
locating it.” Id. (referencing N.T. Vol. 1, 2/11/15, at 187). The PCRA court
found that none of the witnesses would have dispelled any suggestion that
Appellant hid and destroyed evidence. The court characterized the Trooper’s
testimony as establishing only that, by the time he could locate the van, any
evidentiary value would have been compromised. In the court’s view, the
proffered testimony regarding the whereabouts of Appellant and the minivan
“would not have been material or helpful to the defense, and so [Appellant’s]
claim for ineffective assistance must fail.” Id. at 19.
Preliminarily, we note that much of what Appellant allegedly told Mr.
Ramos during the late night telephone call, specifically that he had been
threatened by Victim’s parents, was arguably inadmissible hearsay. Mr.
Cordova’s account of Victim’s parents banging on the door and threatening
Appellant was largely cumulative of the testimony of Victim’s mother. She
testified that she had a baseball bat in her hand when she, accompanied by
and her former husband, entered Appellant’s home to retrieve Victim on the
night of the incident. Furthermore, neither Mr. Ramos nor Mr. Cordova could
have testified from his own personal knowledge that Appellant went to New
York for fear of retaliation from Victim’s family, rather than to avoid police
questioning.
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Mr. Ramos and Mr. Cordova proffered inconsistent testimony regarding
the length of time the minivan remained in Appellant’s driveway. Assuming
that the minivan was at Appellant’s home for some time after the incident,
perhaps Trooper Wesnak could have obtained a warrant to examine and test
it for DNA evidence. However, such testimony did not exclude the possibility
that the minivan would have been cleaned before a warrant could have been
obtained. In short, while there may have been some minimal impeachment
value from the testimony of these witnesses regarding the whereabouts of the
minivan and its accessibility for testing, it was unlikely that the absence of this
evidence changed the outcome of the proceeding in light of DNA evidence
obtained from Victim. Hence, this claim does not merit relief.
Finally, Appellant contends that his counsel was ineffective for failing to
object and seek a curative instruction when Trooper Wesnak testified in
response to a question as to why he did not obtain a warrant for the minivan,
that Appellant chose to retain counsel and not make a statement. The Trooper
stated, “by the time [Appellant] had turned himself in, on the advice of his
attorney, he did not want to answer anymore (sic) questions.” See N.T. Trial
Vol. 1, 2/11/15, at 187. Appellant characterizes the Trooper’s offending
testimony as a non-responsive answer to defense counsel’s question whether
he had sought a warrant for the minivan. Appellant contends that there was
no legitimate purpose for the officer to refer to his post-arrest silence and
decision to hire an attorney, as it was not impeachment or fair response to
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the defense. He argues that the claim is of arguable merit as the prosecution
is not permitted to use a defendant’s decision to remain silent or retain counsel
as evidence of guilt, citing, inter alia, Commonwealth v. Molina, 104 A.3d
430 (Pa. 2014) (plurality) (reversing and ordering a new trial as prosecutor’s
exploitation of non-testifying defendant’s silence as substantive evidence of
guilt was not harmless). Appellant also directs our attention to
Commonwealth v. Costa, 742 A.2d 1076, 1077 (Pa. 1999), where the court
found no reasonable basis for counsel not to object to a police officer’s
testimony elicited by the prosecutor that the defendant did not say anything
to him after the charges were filed.
At the evidentiary hearing, trial counsel maintained that he did not
object because the jury had already heard the statement, and based on his
experience, an objection or curative instruction would only have highlighted
the testimony. N.T. PCRA Hearing, 3/25/19, at 23.
The PCRA court viewed Trooper Wesnak’s reference as fair response to
the defense’s criticism of the Trooper’s thoroughness in failing to apply for a
search warrant for the Appellant’s minivan. The court also characterized the
Trooper’s statement as a “fair recounting of the investigation concerning the
van” and an explanation why he believed that “enough time had passed to
make . . . a search . . . futile.” PCRA Court Opinion, 6/11/19, at 22. In the
court’s view, the answer did not imply that Appellant’s silence was an
admission of guilt, but merely explained the limits placed on the police
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investigation. Thus, the court concluded, there was “no arguable merit to the
claim that trial counsel should have objected[,]” or in the alternative, trial
counsel had a reasonable basis for not objecting. Id. at 23.
Preliminarily, we note that while Appellant characterizes the Trooper’s
testimony as a reference to his post-arrest silence, it is unclear from the
certified record whether Appellant was under arrest or had received his
Miranda warnings when he invoked his Fifth Amendment right against self-
incrimination. However, the timing of Appellant’s assertion of his right to
remain silent does not impact our legal analysis.2 In Molina, supra at 450-
51, a pre-arrest silence case, our Supreme Court held that “the timing of the
silence in relation to the timing of an arrest is not relevant to the right against
self-incrimination.” The relevant inquiry was whether the mention of the
defendant’s silence was used by the prosecution as substantive evidence of
guilt. The Court held that such use was prohibited unless it fell within an
exception such as impeachment of a testifying defendant or fair response to
an argument of the defense.
In Molina, the prosecutor argued that the defendant’s silence was
“most telling,” asked the jury “why” the defendant refused to cooperate with
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2 Appellant’s argument did not turn on whether the Trooper’s reference was
to his pre-arrest or post-arrest silence. He cited Commonwealth v. Molina,
104 A.3d 430, 450-51 (Pa. 2014), for the proposition that the timing of the
silence in relation to an arrest was not relevant to the right against self-
incrimination. See Appellant’s brief at 24.
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the detective, and directed the jury to “[f]actor that in when you're making
an important decision in this case as well.” Id. at 452-53. Our High Court
held that the defendant’s right against self-incrimination was violated as the
prosecutor used the defendant’s silence to imply his guilt, and concluded that
the error was not harmless.
The reference herein was brief and elicited upon questioning by the
defense. It was not exploited by the Commonwealth on cross-examination or
during closing argument. In response to defense counsel’s question why he
did not obtain a search warrant to examine the minivan for evidence of the
alleged sexual assault, Trooper Wesnak testified that he did not seek a search
warrant because he did not know where the van was and he could not locate
Appellant to ask him. He added that, by the time Appellant turned himself in,
he would not answer questions based on the advice of counsel.
As this Court held in Commonwealth v. Guess, 53 A.3d 895, 903
(Pa.Super. 2012), the rule precluding reference to a defendant’s silence “‘does
not impose a prima facie bar against any mention of a defendant's silence’
but rather ‘guards against the exploitation of a defendant’s right to remain
silent by the prosecution.’” Id. citing Commonwealth v. Adams, 39 A.3d
310, 318 (Pa.Super. 2012) (quoting Molina, supra at 63) (emphasis in
original). Moreover, in Adams, we relied upon Molina, in concluding that,
“the mere revelation of a defendant’s pre-arrest silence does not establish
innate prejudice where it was not used in any fashion that was likely to burden
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defendant’s Fifth Amendment right or to create [an] inference of admission of
guilt.” Adams, supra at 318 (quoting Molina, supra at 56).
We find that such evidence of Appellant’s silence was fair response to
the defense’s argument that the Trooper had not sought a search warrant for
the vehicle and an explanation of the investigative timeline. Consequently,
an objection would not have altered the outcome of this case. See
Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005) (reference to a
defendant’s refusal to speak to trooper constituted fair response to defense
counsel’s questioning of the adequacy of the trooper’s investigation). Herein,
the brief reference to Appellant’s silence served another purpose other than
suggesting guilt. See Adams, supra (finding that a brief reference by
detective to defendant’s silence did not violate the Fifth Amendment where it
was not intended to imply a tacit admission of guilt but to recount the
sequence of the investigation).
We find misplaced Appellant’s reliance upon Costa, supra. Therein, we
determined that trial counsel was ineffective for failing to object when a police
detective testified that the defendant said nothing to him when charges were
filed against him for the molestation of a young boy. The court concluded that
there was no proper purpose for the testimony other than to highlight the
defendant’s silence, which was not the case herein. Hence, we find no error
in the PCRA court’s conclusion that Appellant is not entitled to relief on this
claim.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/20
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