Com. v. Dieffenbach, D.

J-S25008-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL STEVEN DIEFFENBACH :
:
Appellant : No. 685 MDA 2019

Appeal from the Judgment of Sentence Entered December 4, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000862-2018

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 29, 2020

Daniel Steven Dieffenbach appeals from the judgment of sentence,

entered in the Court of Common Pleas of Luzerne County, after a jury

convicted him of burglary,1 simple assault,2 recklessly endangering another

person (REAP),3 and resisting arrest.4 Upon careful review, we affirm.

On the morning of September 6, 2017, the victim, C.K., woke up and

readied her two children for school. She departed the house with her children

at 7:11 a.m., to drop them off at the bus stop. C.K. did not lock the door to

her home as she left. Nevertheless, she did have a security application on her

____________________________________________

1 18 Pa.C.S.A. § 3502(a)(1)(ii).

2 18 Pa.C.S.A. § 2701(a)(1).

3 18 Pa.C.S.A. § 2705.

4 18 Pa.C.S.A. § 5104.
J-S25008-20

phone that monitored and logged when the doors to her home opened and

closed. While C.K. was away, and without her knowledge, Dieffenbach, C.K.’s

ex-husband, entered the home at 7:12 a.m., which was logged by the security

application on C.K.’s phone. After getting the kids on the bus, C.K. returned

to her home at 7:19 a.m., locked the door behind her, and walked up to the

second floor master bathroom located within her bedroom.

As she got ready for work, C.K. looked into the bathroom mirror and

saw Dieffenbach appear in the reflection. C.K. had a valid protection from

abuse order (PFA)5 against Dieffenbach, which was in effect on that day.6 See

N.T. Trial, 10/16/18, at 28, 111, 149, 166-67. In response to seeing

Dieffenbach’s reflection, C.K. screamed. Dieffenbach then moved toward her,

put his hand over her mouth and nose, shut the bathroom door, and put C.K.

up against the bathroom wall. Id. at 40. C.K. could not breathe because

Dieffenbach was covering her nose and mouth. Id. at 40-41. When C.K.

____________________________________________

5 See 23 Pa.C.S.A. §§ 6202-6122 (Protection from Abuse Act (PFAA)).

6 At trial, Dieffenbach and the Commonwealth stipulated to the following facts:

[C.K.] was granted a [PFA] against Daniel Dieffenbach on January
27[,] 2016. The [PFA] prevents [] Dieffenbach from abusing or
having any contact with [C.K.]. The [PFA] completely evicts and
excludes [] Dieffenbach from the residence located [in] Newberry
Estates, Dallas, Pennsylvania, 18612. On December 8[,] 2016, a
Luzerne County Judge granted an extension of [C.K.’s] [PFA]
against [] Dieffenbach. The [PFA] shall expire on December 8[],
2019. A violation of [PFA] carries criminal penalties.

N.T. Trial, 10/16/18, at 28.

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stopped screaming, Dieffenbach removed his hand from her face. C.K. was

able to move towards the shower and sit down in the corner of the bathroom.

While on the floor, C.K. told Dieffenbach that he was not permitted to be in

the house and that he needed to leave. Id. at 41.

C.K. then remembered that she left her phone on the bench at the end

of her bed, located just outside of the bathroom door. C.K. asked Dieffenbach

if she could leave the bathroom “to breathe,” because she needed space and

she promised him that she would not scream. Id. at 42. Dieffenbach opened

the bathroom door. C.K. exited and sat on the bench, covered her phone and

hid it between her elbow and her side, to keep Dieffenbach from seeing it.

Once in possession of her phone, C.K. walked over to the bed and curled up

in it, facing away from Dieffenbach. With the phone hidden under the pillow,

C.K. dialed 911. Id. Although she was not able to have a direct conversation

with the 911 operator because she was speaking directly with Dieffenbach at

that time, C.K. did yell the address of her home prior to the conclusion of the

911 call, which alerted the police to her location.

Upon yelling her address through the phone, Dieffenbach was also

alerted to the phone call. He discovered C.K.’s phone and took it from her.

Dieffenbach began pacing back and forth in the bedroom asking why C.K. “did

[] this to him.” Id. at 46. As Dieffenbach was pacing, when he reached the

furthest point away from the bedroom exit, C.K. attempted to run to the exit,

to get to the stairs. However, Dieffenbach was able to prevent C.K. from

leaving by grabbing her and throwing her to the ground. Id. As C.K. was

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laying on her back, Dieffenbach put his hands around her throat and squeezed

hard, which made it difficult for C.K. to breathe, and placed her in fear. Id.

C.K. managed to kick herself free and crawl away.

At that point, the doorbell rang. In response to the doorbell, C.K. began

to scream. Dieffenbach put his hand over C.K.’s mouth again, which

prevented her from breathing. Id. at 47. Dieffenbach told C.K. to stop

screaming, removed his hand, and began pacing in the bedroom again. When

C.K. looked up at him, she noticed that Dieffenbach was now holding a

hammer, which was usually placed in a basket on C.K.’s dresser. Id. at 48.

The hammer was in the room because it was previously used to hang pictures

on the wall. The fact that Dieffenbach was holding a hammer scared C.K. “to

death.” Id. at 49.

At that point, the doorbell rang for a second time. Dieffenbach then

said, “just kill me,” as he threw the hammer onto the bed. Id. at 49-50. He

then asked C.K. if she would let him leave. Id. at 50. C.K. agreed, and

Dieffenbach proceeded down the stairs. C.K. followed him down the stairs

and opened the front door, where Police Officer David Rinehimer, of the Dallas

Borough Police Department, was waiting. C.K. informed Officer Rinehimer

that Dieffenbach was leaving through the rear of her home. Id. at 109.

Police Officer Wade Curtis, of the Township of Kingston, assisted Officer

Rinehimer on that day. Officer Curtis heard Officer Rinehimer call out that the

suspect was exiting the rear of the house. Id. at 100. Officer Curtis went to

the rear of the house and saw Dieffenbach running in the backyard. Officer

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Curtis drew his service weapon and commanded Dieffenbach to stop and get

on the ground, which Dieffenbach did not obey. Instead, Dieffenbach headed

into a wooded terrain with rocks and leaves, which had a significant drop-off,

before leveling off. Id. at 102. While he was running away, Dieffenbach

slipped and fell to the ground, before getting to his feet and continuing on.

Id. Officer Curtis also slipped, but managed to keep his footing. Id. Officer

Curtis noted that the terrain was dangerous for a foot chase. Id. Officer

Curtis eventually arrested Dieffenbach once he reached a fence that blocked

escape. Dieffenbach did not immediately comply with police commands,

though he did after a “few moments.” Id. at 103. Officer Curtis did not have

to “take him down,” though he did have his taser drawn. Id.

After the incident, hospital medical staff documented C.K.’s injuries,

which included bruising and swelling to her face, cuts inside of her mouth, a

scrape on her knee, scrapes on her legs, soreness in her throat, which made

it difficult to swallow, and general soreness throughout her body. Id. at 52-

54.

On October 17, 2018, a jury convicted Dieffenbach of the above charges

and additionally acquitted him of strangulation, criminal trespass, and one

count of simple assault. On December 4, 2018, the trial court sentenced

Dieffenbach to an aggregate term of two to ten years’ incarceration, followed

by five years’ probation. On December 14, 2018, Dieffenbach filed a

counseled motion for post-sentence relief and requested additional time to file

supplemental post-sentence motions pending receipt of transcripts. The trial

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court granted the request for additional time, and gave Dieffenbach until

February 19, 2019 to file supplemental post-sentence motions, which the

court ultimately denied on April 5, 2019. Dieffenbach timely appealed, and

the trial court and Dieffenbach subsequently complied with Pa.R.A.P. 1925,

wherein Dieffenbach, through counsel, alleged twenty-one instances of error.

On appeal, Dieffenbach presents the following three issues for our

review:7

(1) Whether the evidence, even when viewed in a light most
favorable to the Commonwealth, was insufficient as a
matter of law to establish [Dieffenbach’s] guilt beyond a
reasonable doubt regarding the offense of resisting arrest,
as charged in Count 7 of the Criminal Information, since
inter alia, the Commonwealth failed to establish that
[Dieffenbach] engaged in conduct that either constituted
“resistance,” created a substantial risk of bodily injury to a
public servant or required the public servant to utilize
substantial force to overcome the resistance to satisfy all
elements of § 5104 of the Pennsylvania Crimes Code[]?

(2) Whether the evidence, even when viewed in a light most
favorable to the Commonwealth, was insufficient as a
matter of law to establish [Dieffenbach’s] guilt beyond a
reasonable doubt regarding the offense of burglary, as
charged in Count 2 of the Criminal Information, since inter
alia, the Commonwealth failed to establish that
[Dieffenbach] possessed the “intent to commit a crime
therein,” before or at the time of entering the building, to
sustain all elements of § 3502(a)(1)(ii)?

____________________________________________

7 Although this Court granted Dieffenbach three continuances to file his
appellate brief, ordering that it be filed on or before January 22, 2020,
Dieffenbach nonetheless filed it after that date, on February 19, 2020. In the
interest of justice, we will consider his appeal on its merits.

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(3) Did the trial court err or abuse its discretion in concluding
that the door had been open[ed] and allowing Officer
Rinehimer to be called on rebuttal to testify that, after
[Mirandizing8] [Dieffenbach], [Dieffenbach] refused to
answer any questions, where the Commonwealth’s
discovery failed to disclose and the defense was not
provided with a supplemental report that [Dieffenbach] ever
declined to answer any questions, improperly disclosing to
the jury that [Dieffenbach] exercised his constitutional right
to remain silent and in violation of [his] rights under the
Fifth Amendment of the United States Constitution?

Appellant’s Brief, at 3.

Dieffenbach’s first two claims challenge the sufficiency of the evidence

supporting his burglary and resisting arrest convictions. Our standard of

review for challenges to the sufficiency of the evidence is well-settled:

As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable to
the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable
doubt. Nevertheless, the Commonwealth need not establish guilt
to a mathematical certainty. The facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant’s innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined
circumstances.

The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, the fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
____________________________________________

8 See Miranda v. Arizona, 384 U.S. 436 (1966).

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presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.

Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013))

(internal citations, quotation marks, and brackets omitted).

With regard to the crime of resisting arrest, our Supreme Court has

stated that:

[a] person commits a misdemeanor of the second degree if, with
the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a
substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force to
overcome the resistance.

Commonwealth v. Jackson, 924 A.2d 618, 620 (Pa. 2007) (citing 18

Pa.C.S.A. § 5104) (original emphasis omitted). Further, with regard to section

5104, we have previously stated that:

[t]he intent of this section is to confine the offense to forcible
resistance that involves some substantial danger to the person.
As a general rule, therefore, it is not criminal merely to flee arrest.
However, where the circumstances of the flight expose the
pursuing officers to substantial danger a conviction for resisting
arrest is proper. The statute, it is clear, does not require the
aggressive use of force such as a striking or kicking of the
officer. A person resists arrest by conduct which ‘creates a
substantial risk of bodily injury’ to the arresting officer or by
conduct which justifies or requires ‘substantial force to overcome
the resistance.’

Commonwealth v. Miller, 475 A2d 145, 146 (Pa. Super. 1984) (internal

citations and quotation marks omitted; emphasis added). “Bodily injury” is

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further defined as “[i]mpairment of physical condition or substantial pain.” 18

Pa.C.S.A. § 2301. Moreover, we have previously stated that, “[t]he statute

does not require serious bodily injury. Nor does it require actual injury to the

arresting officer. Rather, sufficient resistance is established if the arrestee’s

actions created a substantial risk of bodily injury to the arresting officer.”

Commonwealth v. Lyons, 555 A.2d 920, 925 (Pa. Super. 1989) (emphasis

added). See also Commonwealth v. Butler, 512 A.2d 667, 673 (Pa. Super.

1986).

With regard to his resisting arrest conviction, Dieffenbach claims that

he:

did not create, nor was [Officer Curtis] exposed, to a substantial
risk of bodily injury as intended by the legislature. [Dieffenbach]
did not fight and only fled through the woods. While [Officer
Curtis] testified that, when proceeding through the woods, leaves
lying on the rocks created a slippery condition, the risk that may
have been present does not rise to the same level as the risk which
existed in Lyons or Miller.

While the area may have been slippery, Officer Curtis failed, aside
from giving a general opinion, to describe the area or surface in
detail, in other words, if he slipped or fell, would he sustain injury,
because the entire area was rocky or, if he were to fall, would he
fall on leaves, grass or rocks. That [Officer Curtis] held a
generalized opinion that the area was dangerous, without further
description does not provide facts which, beyond a reasonable
doubt, established that a substantial risk of bodily injury existed.

Appellant’s Brief, at 24.

At trial, Officer Curtis described the events that led to Dieffenbach’s

charge of resisting arrest as follows:

[By Commonwealth Attorney]:

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Q. And when you encountered him at the back of the house, what
was he doing?

A. He was running.

* * *

Q. When you saw him running, what did you do?

A. I pulled out my gun.

Q. And did you give him any commands?

A. Several commands to stop; police, stop, get down on the
ground.

Q. Did he do so?

A. No, he did not. He immediately turned left. Right behind
there’s a wooded section, so he turned left and started to go into
the woods.

Q. Can you describe for the jury what that terrain is like in the
woods back there?

A. Well, what happened first off when he entered the woods, which
I didn’t know but I watched him do it, it stops, drops, levels out
and continues down a hill like this. So his first couple of steps in
he fell down and then he got up and continued to run down the
hill and I followed him down.

Q. And did you also fall down that hill?

A. Not the first one because I saw him do it so I was able to get
down without falling, but as we continued to run it was rock
covered, leaf covered, there were fallen leaves and stuff like that,
so eventually I slipped on that kind of stuff.

Q. In your over 20 years’ experience as a police officer, would you
have considered that terrain dangerous for a foot chase?

A. Yes.

Q. Is that because of the reasons you just described?

A. Yes.

Q. How did that chase end?

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A. Well, as you get towards the bottom there’s a fence, they have
it all fenced in, so he came up to the fence.

Q. Could he have—was there any way around the fence without
climbing over it?

A. Not there, no.

Q. So what did you do at that point?

A. As I got close to him, I pulled out my [t]aser and gave him
commands to stop, get down on the ground, until he complied.

Q. And at this point did he comply?

A. Yeah.

Q. Did it take him a moment or two to comply?

A. Yes.

Q. Did you have to take him down?

A. No, I did not.

N.T. Trial, 10/16/18, at 101-03.

Here, although it is true that mere fleeing is not sufficient to constitute

resisting arrest, upon review of the record, it is clear that Dieffenbach did not

merely flee, but instead, the circumstances of Dieffenbach’s flight exposed

Officer Curtis to substantial danger. See Miller, supra; see also Lyons,

supra. Officer Curtis testified that the terrain over which the foot chase took

place was uneven, covered in rocks and leaves, and had a drop-off that was

difficult to navigate, which Officer Curtis did not know about, and which he did

not initially see. Indeed, Officer Curtis testified that the drop-off in the ground

is what caused Dieffenbach to fall during the foot chase. Officer Curtis further

testified that he did not fall because he was able to observe Dieffenbach

navigate the drop-off first before attempting to traverse it, but that he too

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slipped at some point during the chase. Officer Curtis also testified that, based

on his over twenty years of experience as a police officer, he considered that

terrain to be “dangerous” for a foot chase. Contrary to Dieffenbach’s claims,

Officer Curtis did not simply give a “generalized opinion that the area was

dangerous.” Appellant’s Brief, at 24. Rather, Officer Curtis described with

particularity the rocks, leaves, and terrain in a manner that the jury could

conclude, that if Officer Curtis were to fall—as Dieffenbach did during the

chase—Officer Curtis could have suffered “impairment of physical condition”

or he could have endured “substantial pain.” See 18 Pa.C.S.A. § 2301.

Moreover, at trial, the jury viewed photographs of the terrain over which the

foot chase took place. See N.T. Trial, 10/16/18, at 116-17. Accordingly, we

conclude that the jury could find that Dieffenbach’s “actions created a

substantial risk of bodily injury” to Officer Curtis because both men were

unable to navigate the terrain through which the foot chase took place without

losing their footing. See Miller, supra. Therefore, each element of the crime

of resisting arrest was proved beyond a reasonable doubt. See Rahman,

supra.

Next, Dieffenbach challenges the sufficiency of the evidence with regard

to his burglary conviction.

A person commits the offense of burglary if, with the intent to
commit a crime therein, the person . . . enters a building or
occupied structure, or separately secured or occupied portion
thereof that is adapted for overnight accommodations in which at
the time of the offense any person is present.

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18 Pa.C.S.A. § 3502(a)(1)(ii). With regard to the specific intent element of

burglary, our Court has previously said that:

[t]he intent to commit a crime after entry may be inferred from
the circumstances surrounding the incident. While this intent may
be inferred from actions as well as words, the actions must bear
a reasonable relation to the commission of a crime. Once one has
entered a private residence by criminal means, we can infer that
the person intended a criminal purpose based upon the totality of
the circumstances. The Commonwealth is not required to allege
or prove what particular crime a defendant intended to commit
after his forcible entry into the private residence.

Commonwealth v. Lambert, 795 A.2d 1010, 1022 (Pa. Super. 2002)

(internal citations omitted). Additionally, burglary is complete at the moment

of entry into an occupied structure with the intent to commit a crime therein:

The crime of wilfully and maliciously breaking and entering any
building with intent to commit any felony therein is completed
when the felon breaks into the building either actually, or
constructively by fraud, conspiracy or threats, with the intent
above named. Consummation or execution of the intent to steal
or to commit some other felony is not necessary to complete the
crime of burglary . . . . Whatever felony is committed in the
building broken into is separate and distinct from the offense of
breaking and entering into that building.

Commonwealth v. Tavarez, 174 A.3d 7, 12 (Pa. Super. 2017) (quoting

Commonwealth ex rel. Moszczynski v. Ashe, 21 A.2d 920, 921-22 (Pa.

1941)) (internal brackets and original emphasis omitted).

Dieffenbach claims that the Commonwealth failed to prove the specific

intent element of burglary at trial. More specifically, he states that the trial

court instructed the jury, during the jury charge, that the Commonwealth

alleged there were three possible underlying crimes for the basis of his

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burglary charge: (1) strangulation; (2) violation of the PFA; and (3) simple

assault. Dieffenbach argues that: (1) the jury acquitted him of the

strangulation charge,9 so that crime cannot be the underlying intentional

crime for burglary; (2) the legislature never intended for a PFA violation to be

the underlying intentional crime for burglary; and (3) the evidence adduced

at trial was insufficient to find Dieffenbach guilty of simple assault. Therefore,

he asserts that simple assault cannot be the underlying intentional crime

either. See Appellant’s Brief, at 25-31. We disagree.

Our Supreme Court has previously stated that, with regard to burglary,

there is no requirement that the Commonwealth allege that the defendant

intended to commit a particular crime. Commonwealth v. Alston, 651 A.2d

1092, 1095 (Pa. 1994). The Court explained this point further in a footnote:

[w]e conclude that the specific intent element of the crime of
burglary is limited to whether the accused entered with a “general
criminal intent” to commit any crime. Thus, an intent to commit
a particular crime is not a material element of the offense of
burglary under the law of this Commonwealth. To hold otherwise
would require the Commonwealth to predict what crime Appellant
intended to commit[.] Such a requirement would essentially
eviscerate the Commonwealth’s ability to prove the specific intent
element of burglary based upon inference from the totality of the
circumstances of Appellant’s intrusion—a manner of proof to
which the Commonwealth was clearly entitled.

Id. (emphasis in original). In addition, we have previously stated that “[w]hen

the Commonwealth does specify, in the information or indictment, the crime

____________________________________________

9 The jury acquitted Dieffenbach of the strangulation charge and one count of
simple assault, but, as discussed above, convicted Dieffenbach of one other
count of simple assault.

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defendant intended to commit, the Commonwealth must prove the requisite

intent for that particular crime in order to prove a burglary or attempted

burglary.” Commonwealth v. Brown, 886 A.2d 256, 260 (Pa. Super. 2005)

(emphasis added).

Here, the Commonwealth’s information alleged in relevant part:

COUNT 2: Burglary - Overnight Accommodations; Person Present
- (F1)

On or about: 09/06/2017 18 § 3502 §§ A1II

The [a]ctor did enter a building or occupied structure, or
separately secured or occupied portion thereof that was adapted
for overnight accommodations, namely, [] Newberry Estate,
Dallas Borough, with the intent to commit a crime therein and
there was an individual present at the time of entry.

Information, 3/16/18, at 1. Thus, the Commonwealth did not allege the

specific underlying crime for Dieffenbach’s burglary charge in the

information.10 Just as in Alston, the Commonwealth’s information was not

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10 At trial, the court explained in its final jury charge:

The defendant has been charged with burglary. To find the
defendant guilty of this offense you must find that all of the
following elements have been proven beyond a reasonable doubt:
[f]irst, that the defendant entered the location at [] Newberry
Estates in Dallas Borough[; s]econd, that the defendant entered
that location with the intent to commit a crime inside. And in this
case the crimes that the Commonwealth alleges he intended to
commit were criminal contempt or a PFA violation or strangulation
or simple assault. And third, that the location was a building or
occupied structure or a separately secured or occupied portion of
a building or structure that is adapted for overnight

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“constitutionally defective for failing to provide notice of that which need not

have been alleged or proven.” See Alston, supra, at 1095.

Here, we agree with the trial court that, when “[t]aken together, the

early morning hour of [Dieffenbach’s] entry into [C.K.’s] home,

[Dieffenbach’s] knowledge that the PFA prohibited him from entering the

home, [Dieffenbach’s] attack on [C.K.], and [Dieffenbach’s] flight when

confronted, all allowed the jury to reasonably infer [Dieffenbach] possessed

the intent to commit a crime” at the time of his entry into C.K.’s home. Trial

Court Opinion, 9/6/19, at 24. See Lambert, supra. See also

Commonwealth v. Hargrave, 745 A.2d 20, 23 (Pa. Super. 2005) (holding

that, “[f]light does indicate consciousness of guilt, and a trial court may

consider this as evidence, ‘along with other proof, from which guilt may be

inferred.’”). Therefore, we conclude that the evidence was sufficient to prove

all elements of Dieffenbach’s burglary conviction beyond a reasonable doubt.11

See Rahman, supra.
____________________________________________

accommodations in which at the time of the offense any person is
present.

N.T. Trial, 10/16/18, at 248-49 (emphasis added). Because our decision in
Brown, supra, stated that the Commonwealth must prove the specific intent,
as stated in the information or complaint, we conclude that the trial court’s
misstatement to the jury regarding Dieffenbach’s charges was harmless. See
Alston, supra at 1094 n.3 (“an intent to commit a particular crime is not a
material element of the offense of burglary under the law of this
Commonwealth.”).
11 That Dieffenbach entered C.K.’s home before she returned from the bus
stop is of no moment. “[T]he statutory words, ‘individual is present at the

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In his final claim on appeal, Dieffenbach argues that a new trial is

warranted because: (1) the trial court erred when it admitted evidence of

Dieffenbach’s silence after he was Mirandized, which was a violation of

Dieffenbach’s right to remain silent pursuant to the Fifth Amendment of the

United States Constitution; and (2) the prosecution failed to disclose to

Dieffenbach that it could use his silence in rebuttal, a violation of the

mandatory disclosure requirement of Pa.R.Crim.P. 573 (relating to pretrial

discovery and inspection). See Appellant’s Brief, at 31-42.

At trial, the court found that Dieffenbach’s testimony attacked the

thoroughness of the Commonwealth’s investigation into his case, and that

Dieffenbach opened the door to “fair response” by the Commonwealth. See

Trial Court Opinion, 9/6/19, at 21-22. Dieffenbach’s testimony on direct

examination, which gave rise to Officer Rinehimer’s rebuttal testimony,

proceeded as follows:

[By Dieffenbach’s Attorney:]

Q. And then when you came—were you taken into custody at that
point?

A. Yes.

Q. And were you brought back around to the front of the house?

A. Yes.

____________________________________________

time of entry’ apply when an occupant or owner is actually present at the time
of entry or enters the structure while the defendant is still inside the
structure.” Commonwealth v. Rivera, 983 A.2d 767, 760 (Pa. Super.
2009).

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Q. Were there any requests that you made to the police?

A. She had said—[C.K.] had said that I had broken into the house.
So I was going to be taken away. I didn’t want somebody to
smash a window or jimmy the lock or kick the door in as we were
gone, so I had asked Officer Rinehimer to take pictures because
there was nothing. There was nothing physically that said that I
had broken into the house. I knew that she had invited me in. I
knew that none of this had happened, so I had asked him so this
wouldn’t be an issue later. All somebody had to do was come
along and smash the window after that and then it looks like I’ve
broken in the house.

Q. And you heard Officer Rinehimer testify that you asked him to
do that?

A. Yes, which I did.

Q. And were there any statements you made to the police at that
point?

A. No.

Q. Did you tell the police about how you got in the house?

A. Other than him asking—I don’t know if it was him or the chief—
as we were at the station about whose baby it was, no one to this
day has asked me a question about anything.

N.T. Trial, 10/16/18, at 160-61 (emphasis added). On cross-examination, the

Commonwealth gave Dieffenbach the opportunity to clarify his testimony:

[By Commonwealth Attorney:]

Q. And it was also your statement on direct examination that—I
think you said to this day that no one has asked you what
happened that day, correct? Was that your testimony on direct
examination?

A. Yes.

Id. at 178. On rebuttal, the trial court permitted the Commonwealth to recall

Officer Rinehimer, in “fair response” to Dieffenbach’s claims. Officer

Rinehimer’s relevant testimony proceeded as follows:

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By [Commonwealth Attorney]:

Q. Officer Rinehimer, as the affiant in this matter you were present
for the defendant’s testimony, correct?

A. Correct.

Q. And did you hear him say that to this day no one has asked
him his side of the story?

A. I did.

Q. Is that true?

A. No.

Q. Please tell the jury what you know about that.

A. After Mirandizing him and asking him a couple questions, I
asked him to put it in his own words and he refused.

Id. at 187 (emphasis added).

Dieffenbach first claims that the trial court erred when it determined

that the Commonwealth’s reference to his post-arrest silence was “fair

response.” See Appellant’s Brief, at 36-39. We disagree.

With regard to the right to remain silent, we have previously said that:

Both the United States Constitution and the Pennsylvania
Constitution protect a person from being compelled to be a
witness against himself. Our cases have established and analyzed
four distinct time periods during which a defendant may remain
silent or offer a statement during the criminal process: (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.

Commonwealth v. Kuder, 62 A.3d 1038, 1049 (Pa. Super. 2013) (internal

citations, quotation marks, and footnote omitted). Further, with regard to a

prosecutor’s reference to a defendant’s silence, our Supreme Court has

stated:

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[i]n general, after a defendant has been given Miranda warnings,
the defendant’s post-arrest silence may not be used against him
to impeach an explanation subsequently offered at
trial. However, where a prosecutor’s reference to a defendant’s
silence is a fair response to a claim made by defendant or his
counsel at trial, there is no violation of the Fifth Amendment
privilege against self-incrimination. The protective shield of the
Fifth Amendment may not be converted into a sword that cuts
back on an area of legitimate inquiry and comment by the
prosecutor on the relevant aspects of the defense case.

Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1988) (internal

citations omitted; emphasis added).

In Copenhefer, our Supreme Court described a similar set of facts,

where a defendant’s testimony, which concerned answers given to police that

were selectively non-responsive, gave rise to the prosecution’s permissible

use of his post-arrest silence as “fair response.” Id. at 252. During the

investigation of that case, police questioned the defendant concerning his

whereabouts over a three-day period. At trial, the defendant testified that he

fully cooperated with police, when, in fact, he had refused to answer questions

regarding his whereabouts on one of the days:

In [his] testimony, appellant clearly states that he cooperated
with the police because he had nothing to hide, and further
insinuates that everything the police believed to be relevant—the
‘whole list of questions’—was included in the conversation
between appellant and the police. This testimonial assertion
simply did not reflect the reality of appellant’s selective non-
responsiveness to certain highly relevant questions, and the
prosecutor properly pointed this out by confronting appellant with
his invocation of silence in response to the question[.] Appellant
may not assert to a jury that on the one hand he was entirely
cooperative with investigators but on the other hand not place
before that same jury the fact that he belatedly invoked his right
to remain silent to refuse to answer the most incriminating
questions put to him. Not only would such a situation be

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misleading to the factfinder, but it would allow appellant to
convert the Fifth Amendment shield into a sword which could not
be countered by the prosecutor’s further inquiry or fair comment
thereon.

Id. at 252 (quotation marks omitted; emphasis added).

Dieffenbach attempts to distinguish his case from Copenhefer by

arguing that, “[u]nlike the appellant in [] Copenhefer, here, Dieffenbach did

not deny that he was asked questions and did not deny that he responded to

those questions. Rather, he merely denied [sic] that, after he arrived at the

stations, no one asked him anything further.” Appellant’s Brief, at 38.

Restated, Dieffenbach argues that his testimony on direct examination was

that he denied making statements once arriving back at the station, but that

Officer Rinehimer’s rebuttal testimony described Dieffenbach’s silence at the

scene of his arrest. Id.

After reviewing the relevant testimony above, we conclude that

Dieffenbach’s testimony belies this alleged distinction. On direct examination,

Dieffenbach stated in response to whether he told the police how he got in the

house, that, “[o]ther than [Officer Rinehimer] asking—I don’t know if it was

him or the chief—as we were at the station about whose baby it was, no one

to this day has asked me a question about anything.” N.T. Trial, 10/16/18,

at 161 (emphasis added). Dieffenbach’s mention of Officer Rinehimer’s asking

questions is clearly in reference to when Dieffenbach was still at the scene of

the crime, when Officer Rinehimer questioned Dieffenbach after giving him

Miranda warnings. Dieffenbach’s testimony, therefore, was not solely

confined to when he was brought to the police station.

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Moreover, we conclude that the trial court did not err in finding that

Officer Rinehimer’s testimony was “fair response.” Indeed, Dieffenbach’s case

is exactly like that of the defendant’s in Copenhefer, insofar as each

defendant questioned the thoroughness of the Commonwealth’s investigation

into his case; each stated that he was cooperative with investigators, yet,

simultaneously invoked “his right to remain silent to refuse to answer the most

incriminating questions put to him.” See Copenhefer, supra at 252. Thus,

the trial court did not err in allowing Officer Rinehimer to testify in rebuttal

regarding Dieffenbach’s post-arrest silence. Id.

Finally, Dieffenbach argues that Pa.R.Crim.P. 573 provides for

mandatory disclosures, and that rebuttal evidence is mandatory under the

rule. See Appellant’s Brief, at 41. Dieffenbach states that he never received

a disclosure from the Commonwealth regarding its use of his silence in

rebuttal, and consequently, he is entitled to a new trial. Id. at 43. We

disagree.

Pennsylvania Rule of Criminal Procedure 573 provides in relevant part:

Rule 573. Pretrial Discovery and Inspection

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the
defendant, and subject to any protective order which the
Commonwealth might obtain under this rule, the
Commonwealth shall disclose to the defendant’s attorney all
of the following requested items or information, provided
they are material to the instant case. The Commonwealth
shall, when applicable, permit the defendant’s attorney to
inspect and copy or photograph such items.

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J-S25008-20

* * *

(b) any written confession or inculpatory statement, or the
substance of any oral confession or inculpatory statement,
and the identity of the person to whom the confession or
inculpatory statement was made that is in the possession or
control of the attorney for the Commonwealth;

* * *

(f) any tangible objects, including documents,
photographs, fingerprints, or other tangible evidence[.]

Pa.R.Crim.P. 573(B)(1)(b), (f).

Dieffenbach points to our decision in Commonwealth v. Thiel, 470

A.2d 145 (Pa. Super. 1983), and our Supreme Court’s decision in

Commonwealth v. Ulen, 650 A.2d 416 (Pa. 1994), for the proposition that:

[i]t is true that we cannot expect the Commonwealth to anticipate
the materiality of all possible rebuttal evidence. [W]e can imagine
cases in which the materiality of certain evidence in the
Commonwealth’s possession might not become apparent until
after trial has begun. On the other hand [former] Rule 305 (B)(1)
makes no distinction between rebuttal evidence and evidence the
Commonwealth expects to use in its case-in-chief. In cases where
the prosecutor can reasonably predict possible defense strategies
and evidence, he must also be held to reasonable anticipation of
what evidence in his possession might be material in rebuttal.

Appellant’s Brief, at 41. Finally, Dieffenbach cites to our Supreme Court’s

decision in Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992), where the

Court stated that “[t]he purpose of the discovery rules is to permit the parties

in a criminal matter to be prepared for trial. Trial by ambush is contrary to

the spirit and letter of those rules[.]” Id. at 1274.

Here, it is not clear to us what evidence was “in the Commonwealth’s

possession,” under these circumstances, that was not also in Dieffenbach’s

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possession. See Ulen, supra; see also Pa.R.Crim.P. 573(B)(1)(b). The

Commonwealth merely was aware, as was Dieffenbach, that Dieffenbach

invoked his right to remain silent once Officer Rinehimer read him his Miranda

warnings. Our review of the cases to which Dieffenbach cites reveals a

common thread that warranted reversal: the Commonwealth’s failure to

disclose “tangible” evidence, see Pa.R.Crim.P. 573(B)(1)(f), that was actually

in its possession. See, e.g., Ulen, supra (Commonwealth failed to disclose

tape of recorded conversation in its possession); Moose, supra

(Commonwealth failed to disclose defendant’s incriminating statements in its

possession); Commonwealth v. Jenkins, 383 A.2d 195 (Pa. 1978)

(Commonwealth failed to disclose, and denied existence of, report in its

possession); Commonwealth v. Jackson, 319 A.2d 161 (Pa. 1974)

(Commonwealth refused to disclose list of names of witnesses it intended to

produce that placed defendant at scene of crime); Commonwealth v.

Hanford, 937 A.2d 1094 (Pa. Super. 2007) (Commonwealth failed to disclose

recording of defense witness in its possession); Thiel, supra (Commonwealth

failed to disclose two airplane tickets in its possession). Here, because

knowledge of Dieffenbach’s post-arrest silence was not solely in the

Commonwealth’s “possession,” and because there was nothing “tangible” for

the Commonwealth to turn over, there was no violation of Rule 573. See

Pa.R.Crim.P. 573(B)(1)(b), (f). Moreover, there was no unfair surprise or

“trial by ambush,” since Dieffenbach was aware that he invoked his Fifth

Amendment right to remain silent at the scene. See Moose, supra; see also

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Ulen, supra. Consequently, we conclude that Dieffenbach is not entitled to

a new trial on these grounds.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/29/2020

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