Commonwealth v. DiNicola

OPINION

Chief Justice CAPPY.

This appeal presents the question of whether Appellee’s Fifth Amendment privilege against self-incrimination was violated by reference to his pre-arrest silence. This question is brought before our court by Appellant who challenges the determination that trial counsel was ineffective. Because we find no violation of Appellee’s Fifth Amendment privilege, the *553attendant finding of ineffective assistance of trial counsel was in error. Therefore, for the reasons stated below, we reverse the order of the Superior Court awarding a new trial and reinstate the judgment of sentence.

Appellee was convicted of aggravated indecent assault and related offenses, arising from his interaction with fourteen year old K.H., a resident at a youth placement facility where Appellee was employed as a staff member. Several weeks after Appellee’s unrelated, voluntary departure from his employment at the facility, K.H. confided to a staff member that Appellee touched her in an inappropriate, sexual manner. K.H. asked that her disclosure be kept in confidence. Against K.H.’s wishes, the staff member reported the disclosure, and an investigation ensued, first by facility staff and later by the Pennsylvania State Police.

The investigating trooper initially spoke with the facility supervisor and interviewed K.H., who confirmed her prior disclosure. The trooper also interviewed staff members who worked with Appellee and, to varying degrees, corroborated that Appellee had maintained a close relationship with K.H.

The trooper telephoned Appellee to request an interview, indicating that allegations had been made against him relating to his employment at the facility, but would not discuss details over the phone. Appellee declined to meet with the trooper, expressing a desire to consult his attorney. Later, the attorney contacted the trooper and stated that Appellee adamantly denied any inappropriate conduct, but, on the advice of counsel, would assert his right under the Fifth Amendment to the United States Constitution to remain silent at any interview with police.

Appellee was subsequently arrested and charged with offenses ranging from aggravated indecent assault of a person less than sixteen years old to corruption of a minor.

At the ensuing jury trial, after presenting testimony from K.H. and other witnesses, the Commonwealth called upon the arresting trooper solely to establish Appellee’s age at the time of his offenses. On cross-examination, Appellee’s trial counsel *554attempted to proceed beyond the scope of the direct examination but was precluded from doing so. After the Commonwealth rested, however, trial counsel called the trooper as a defense witness. On the Commonwealth’s request for an offer of proof, counsel for Appellee summarized his reason for calling the trooper by stating that he wished to question the trooper “to determine the adequacy of the Pennsylvania State Police investigation against my client, Dave DiNicola. I don’t think they put on an adequate investigation. These questions are directly proposed to be present [sic] to show the jury and I think I should be entitled to let them know this.” (T.T. p. 16).

The direct examination of the trooper followed. During that examination, the Commonwealth objected and raised the concern that the line of questions would lead to the trooper revealing Appellee’s pre-arrest assertion of silence. (T.T. p. 29) When presented with this concern at sidebar, trial counsel responded: “All I asked if he investigated anything that’s inconsistent with his theory of guilt on this case. I think it’s very clear cut.” (T.T. p. 30).1

After being permitted to proceed, trial counsel asked the trooper a series of leading questions implying that his investigative efforts were minimal and/or one-sided. See, e.g., N.T., Nov. 18,1998, at 29 (“In fact nothing here—nothing whatsoever was investigated that might be inconsistent with your theory that Dave DiNicola is guilty here; right? Was anything else investigated that might tend to show otherwise? Anything?”). On the Commonwealth’s objection, another sidebar discussion ensued, during which the district attorney *555advised that such questioning would open the door to the trooper elaborating on his unsuccessful effort to interview Appellee in furtherance of the investigation. The trial court attempted to discourage trial counsel from proceeding on his intended course, suggesting that the central issue before the jury was credibility and that aggressive questioning of the trooper might not resonate with the jury, particularly as trial counsel was unable to offer any evidence that the officer should have uncovered. The court nevertheless overruled the Commonwealth’s objection, and trial counsel reiterated: “Now, was anything done by you—anything—did you look in any other direction to see if these charges were unfounded?” The officer responded that he contacted Appellee, at which point trial counsel interrupted him, shifting the focus away from Appellee’s response to the trooper’s inquiry.

On cross-examination, however, the district attorney returned to the subject of the trooper’s conversation with Appellee, eliciting the trooper’s explanation that Appellee declined the request for an interview, and that counsel for Appellee later contacted the trooper and advised that Appellee denied the allegations but would invoke his right to remain silent in any discussion with law enforcement personnel.

The remainder of the defense case consisted of Appellee’s testimony, in which he refuted the Commonwealth’s allegations of criminal conduct, and of evidence from numerous character witnesses. The jury convicted Appellee of all counts, and the court imposed a sentence of incarceration for eleven and one-half to twenty-four months, with a subsequent term of probation.

Armed with new counsel, Appellee filed a post-sentence motion alleging ineffectiveness of trial counsel. It was asserted that trial counsel was ineffective, first, for failing to object to the trooper’s testimony revealing Appellee’s pre-arrest silence; and second, for opening the door to the inevitable revelation that Appellee asserted his right to remain silent. A hearing on the matter was scheduled; however, the original record presented to this court, contains no transcript of an *556evidentiary hearing at this stage or any other reference that would indicate whether or not it was actually conducted.2

The common pleas court did not separately assess the allegations of ineffectiveness; rather, it reached a global conclusion that there was no merit to the allegations of ineffectiveness and denied relief. The trial court’s decision rested on its determination that Appellee’s response to the trooper’s request for an interview was better characterized as a denial of the charges rather than as silence capable of being viewed by jurors as a tacit admission. Further, the court noted that while there is a strong proscription against references to a defendant’s post-arrest silence in circumstances in which the defendant elects not to testify at trial, see, e.g., Commonwealth v. Clark, 533 Pa. 579, 626 A.2d 154, 158 (1993), a defendant’s pre-arrest silence is more amenable to being offered into evidence, at least where the defendant elects to testify, as occurred in this case. See Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839, 844 (1996) (“[W]hen a criminal defendant waives his right to remain silent and testifies at his own trial, neither the United States nor the Pennsylvania Constitution prohibit a prosecutor from impeaching a defendant’s credibility by referring to his pre-arrest silence.”). The court concluded:

Therefore because the defendant was never directly confronted with an accusation of criminal misconduct to which he remained silent but rather was simply asked for an appointment for an interview and because pre-arrest silence is admissible under certain circumstances, the defendant has failed to satisfy the first prong of the ineffectiveness test, i.e. that the claim has arguable merit.

On appeal, however, a three-judge panel of the Superior Court disagreed. See Commonwealth v. DiNicola, 751 A.2d 197 (Pa.Super.2000) (“DiNicola /”). The court in DiNicola I focused on trial counsel’s failure to object. Reasoning that the inquiry into the scope of the investigation represented an attempt to obtain evidence that might have established Appel*557lee’s innocence and did not, in and of itself, reveal that Appellee had asserted his right to remain silent, the panel found a reasonable basis for counsel’s initial questioning of the trooper. See id. at 200. It was the elicitation by the prosecution of Appellee’s pre-arrest silence through cross-examination that caused the panel concern. Proceeding from that point, with the erroneous belief that Appellee had not testified at his trial, the panel found merit in the claim that trial counsel was ineffective in failing to object to the salient cross-examination. See id. at 202. Furthermore, the panel stated, in a conclusory fashion, that the prejudice resulting from reference to Appellee’s silence was substantial. See id. at 202. However, the court deemed the record inadequate to assess whether counsel had a reasonable basis for failing to object. See id. Accordingly, the panel remanded for an evidentiary hearing limited to this question.

At the subsequent hearing before the common pleas court, trial counsel confirmed what he had stated at trial, that his questioning was designed to expose inadequacies in the criminal investigation into Appellee’s conduct. Counsel gave inconsistent explanations regarding his failure to object to the relevant cross-examination of the trooper. On the one hand, counsel stated that he felt that an objection could have harmed the defense, particularly in light of his having asked similar questions. See, e.g., N.T., Oct. 23, 2000, at 20-21. On the other hand, counsel later conceded that he should have asserted an objection and that he could not recall having made any evaluative decision concerning whether or not to do so during the relevant inquiries. See id. at 30-31.

On remand, the common pleas court read DiNicola I as establishing a bright-line rule to the effect that a defendant’s pre-arrest silence may not be admitted into evidence. Further, the court, in considering trial counsel’s inconsistent responses regarding his failure to object to the elicitation of references to Appellee’s pre-arrest silence, ultimately concluded that counsel lacked any reasonable basis designed to effectuate Appellee’s interests. Accordingly, as the Superior Court had already determined the arguable merit and prejudice *558prongs of the ineffectiveness equation were present in this case, the trial court determined that all three prongs of the ineffectiveness inquiry had been met and that, thus, it was compelled to award Appellee a new trial.

The Commonwealth then appealed. A divided, en banc panel of the Superior Court affirmed. See Commonwealth v. DiNicola, 797 A.2d 966 (Pa.Super.2002) (“DiNicola II”). At the outset, the majority acknowledged that the decision to remand in DiNicola I was based in part on the panel’s incorrect understanding that Appellee did not testify at trial and, therefore, had not waived his Fifth Amendment right to remain silent. See id. at 968. The majority concluded, however, that the prior panel’s misapprehension of the record did not invalidate the trial court’s conclusion on remand that trial counsel rendered ineffective assistance, since, regardless of whether Appellee testified, his attorney should have objected to the Commonwealth’s inquiries that elicited testimony concerning his pre-arrest silence. The majority stated that references to pre-arrest silence are permissible only if used for impeachment. Id. at 971. Since the prosecutor’s reference to Appellee’s pre-arrest silence was not related to Appellee’s credibility, but rather, concerned with whether the trooper conducted a proper investigation, the majority again concluded that Appellee’s ineffectiveness claim was of arguable merit. See id.

Regarding the reasonable basis prong of the ineffectiveness inquiry, the majority endorsed the trial court’s holding based on its findings that counsel did not expect that his original question would reveal the pre-arrest silence, had no reason for failing to object to the prosecution’s question and, concededly should have objected earlier. See id. at 972. Therefore, the court concluded that trial counsel lacked a reasonable basis for failing to challenge the relevant cross-examination. See id.

As to the prejudice prong, the majority rejected the Commonwealth’s argument that based on the overwhelming evidence; Appellee would necessarily have been convicted even without the reference to pre-arrest silence. The court noted that the central evidence presented at trial concerning actual *559criminal conduct on Appellee’s part was sharply conflicting, and the jury’s resolution was necessarily grounded in credibility determinations. See DiNicola II, 797 A.2d at 972. Accordingly, the majority reiterated the previous panel’s conclusion that the prejudice resulting from the reference to pre-arrest silence was substantial. See id.

Having twice traveled through the Superior Court, allocatur was granted so this Court could consider whether Appellee’s Fifth Amendment privilege against self-incrimination was violated by reference to his pre-arrest silence. As stated earlier, this case involves two distinct questions of ineffectiveness of trial counsel. The first question focuses on the failure of counsel to object when the investigating state trooper testified that, pre-arrest, Appellee had asserted his right to remain silent. The second question of ineffectiveness concerns the stewardship of counsel in opening the door that led to the trooper’s reference to Appellee’s pre-arrest silence.

A claim of ineffectiveness of counsel is evaluated by the oft-stated three-prong test articulated in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987): 1) an analysis of the underlying claim of error for arguable merit; 2) application of the “reasonable basis” test to determine if the course chosen by counsel was designed to effectuate his client’s interests; and 3) a determination of whether the accused has demonstrated prejudice. It is not essential to apply the test in any given order, and if the proponent of ineffectiveness fails to satisfy any one prong of the test, the entire claim fails. Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 357 (1995).

We begin our analysis of the first ineffectiveness claim, the failure of trial counsel to object to the reference to pre-arrest silence, with a brief overview of the relevant facets of the United States Supreme Court’s jurisprudence on silence.3 In its seminal decision in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Court held that where *560the defendant does not testify at trial, the Fifth Amendment precludes the government from using a defendant’s post-arrest silence as substantive evidence of consciousness of guilt. Following Griffin, in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court invoked the Due Process Clause of the Fourteenth Amendment to extend the prohibition against prosecution use of post-Miranda4 silence, to impeachment. In Doyle, the defendant was provided Miranda warnings at arrest and, pursuant thereto, exercised his right to remain silent. At trial, when the defendant offered an explanation for his actions on the night in question, the prosecution attempted to impeach the defendant with the fact of his post-arrest silence. Characterizing silence in the wake of warnings of the right to remain silent as “insolubly ambiguous,” the Court held that it would be fundamentally unfair to provide Miranda warnings impliedly assuring the accused that silence carries no penalty and then to allow the prosecution to impeach a defendant with the fact of post-arrest silence, see id. at 617-18, 96 S.Ct. 2240.5 However, the Supreme Court also has determined that neither the Fifth Amendment nor due process forecloses prosecution use of a defendant’s pre-arrest, pre-Miranda silence for purposes of impeachment where the defendant elects to testify at trial. See Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); accord Bolus, 680 A.2d at 844.

More directly pertinent to the present case, the United States Supreme Court also has recognized that a defendant’s silence may bear relevance to, and be admissible to establish, other issues arising in a criminal proceeding. For example, in United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), the Court ruled there is no Fifth Amendment proscription precluding the raising of silence in fair response to defense argumentation. The case concerned a *561challenge to a prosecutor’s reference to the defendant’s silence at trial in response to defense arguments that the government had not allowed the defendant to explain his side of the story. Specifically, during his summation, the prosecutor informed the jury that the defendant “could have taken the stand and explained it to you.” Id. at' 26, 108 S.Ct. 864. Robinson first noted that “the prosecutorial comment did not treat the defendant’s silence as substantive evidence of guilt, but instead referred to the possibility of testifying as one of several opportunities which the defendant was afforded, contrary to the statement of his counsel, to explain his conduct.” Id. at 28, 108 S.Ct. 864. The Court recognized Griffin’s proscription against a prosecutor, on his own initiative, inviting the jury to draw an adverse inference from silence, but distinguished Griffin as follows:

It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence. There may be some “cost” to the defendant in having remained silent in each situation, but we decline to expand Griffin to preclude a fair response by the prosecutor in situations such as the present one.

Robinson, at 33-34,108 S.Ct. 864. (citations omitted).

By applying Robinson’s fair response doctrine, see, e.g., Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 251 (1998), our court implicitly rejected the DiNicola I court’s conclusion that impeachment is the sole permissible purpose for which a defendant’s pre-arrest silence may be referenced by the Commonwealth in a criminal trial. For purposes of fair response, admissibility is presently subject primarily to the trial court’s assessment of probative value versus prejudicial effect on appropriate objection, as is the case -with all other evidence adduced at trial. See Pa.R.E. 403.6

*562Here, as in Robinson, trial counsel’s strategy was to question the government’s preparation of its case, particularly in terms of the investigating trooper’s pursuit of potentially exculpatory evidence. Since the trooper’s investigation was obviously limited by Appellee’s decision to reject the request for an interview, we find that the Commonwealth’s elicitation of the trooper’s testimony regarding this fact constituted fair response, in the same manner as did the prosecution’s reference to the defendant’s post-arrest silence in Robinson. As this line of questioning did not violate the Fifth Amendment, trial counsel will not be deemed ineffective for failure to raise an objection. Therefore, it was error to award relief on the first portion of the ineffectiveness claim.7

The resolution of the second portion of the ineffectiveness argument raises different concerns. Here, the claim of error is that trial counsel opened the door to the inevitable revelation that Appellee had asserted his Fifth Amendment right to remain silent.

Despite our decision that the trooper’s reference to silence in the circumstances of this case did not violate the Fifth Amendment, consideration of the distinct allegation that trial counsel erred in opening the door for the trooper’s testimony is not foreclosed. Nonetheless, this claim of ineffectiveness can be definitively resolved by going directly to a consideration of prejudice. Travaglia, 661 A.2d at 357. We must, therefore, determine if Appellee met his burden of demonstrating a reasonable probability that but for counsel’s action, the result of the proceedings would have been different.

*563Appellee asserts prejudice by this revelation as the invocation of silence in the face of an accusation of criminal activity could be read as a tacit admission of guilt. Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537, 539 (1982). Appellee asserts that the prejudice he suffered by this admission outweighed any potential benefit derived from pursuing this strategy.

As explained herein, the mere revelation of silence does not establish innate prejudice. See also Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 478 (1998) (“Even an explicit reference to silence is not reversible error where it occurs in a context not likely to suggest to the jury that silence is the equivalent of a tacit admission of guilt”).8

Taken at face value, the revelation of silence in this case was limited to its context. The trooper revealed the exchange with Appellee wherein a denial of wrongdoing was immediate, and the decision to engage in further discussion with the trooper was declined. In this situation, the reference to silence and its Fifth Amendment source was circumspect; it 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.

Reviewing the record as a whole, we are compelled to conclude that Appellee has failed to establish that the outcome of this case would have been different absent the decision of trial counsel that opened the door to this testimony. Thus, Appellee was not entitled to relief on the second claim of ineffectiveness.

*564The order of the Superior Court is reversed, and Appellee’s judgment of sentence is reinstated.

Former Justice LAMB did not participate in the decision of this case. Justice CASTILLE files a concurring opinion. Justice SAYLOR files a concurring opinion. Justice NEWMAN files a concurring and dissenting opinion.

. As the trial court noted in its initial opinion regarding this exchange, defense counsel was looking for a response from the trooper as to information the trooper uncovered that would be either consistent or inconsistent with the trooper's conclusion that Appellee was guilty. Appellee's silence was not relevant and would not have been a proper response to that question. (Trial court slip opinion of 6/29/99, p. 3). The Superior Court in its initial decision in this case reviewed this particular exchange and concluded that ”[i]t is clear from the notes of testimony that trial counsel was trying to elicit evidence from the trooper that may have been favorable to DiNicola.” Commonwealth v. DiNicola, 751 A.2d 197, 200 (Pa.Super.2000).

. The Commonwealth notes in its brief that a hearing occurred; however, it does not discuss its scope and/or content.

. The parties to this appeal have not discussed the case in terms that would justify separate consideration of the substantive issues with reference to the Pennsylvania Constitution.

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

. Cf. Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (holding that due process does not preclude cross-examination of an accused as to his post-arrest silence in the absence of Miranda warnings or similar assurances).

. Further, we read Bolus as directed to the facts before the Court (the permissibility of the Commonwealth's use of pre-arrest silence in im*562peachment), see Bolus, 680 A.2d at 844, but not, as Appellee would have it, as foreclosing references to pre-arrest silence in other circumstances in which they may be relevant.

. We note that Appellee claims that the Commonwealth waived the opportunity to challenge the findings of arguable merit and prejudice on this claim by its failure to appeal the decision in DiNicola I. We reject this argument. When the Superior Court revisited this issue and corrected its erroneous assumptions in this case through its decision in DiNicola II, the slate was wiped clean; thus, waiver is inapplicable in this situation.

. The elusive nature of silence was a topic eloquently discussed by the late Justice Michael Musmanno in Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904, 907 (1967), wherein this court rejected the tacit admission rule:

It may be desirable and dramatic for the wrongly accused person to shout: "I am innocent!" but not everybody responds spontaneously to stimuli. The accusation may be so startling that the accused is benumbed into speechlessness. There are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.