concurring and dissenting.
I concur in the significant principle set forth today in the Majority Opinion that the pre-arrest silence of Appellee was properly admitted as “fair response” to the questioning by trial counsel of the investigating Trooper. The per se rule of the Superior Court in Commonwealth v. DiNicola, 751 A.2d 197 (Pa.Super.2000) (DiNicola 7), that pre-arrest silence can be considered by a jury only for the purpose of impeaching a testifying defendant’s credibility, imposes a limit without a purpose. The Majority Opinion correctly acknowledges that in United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), the United States Supreme Court recognized that a defendant’s silence may be admissible to establish issues in addition to impeachment that arise in a criminal proceeding. Majority Opinion at 559-61, 866 A.2d at 335.
Although I completely agree with the extension of the fair response doctrine to include evidence concerning pre-arrest silence, I dissent from the determination to reverse the Order of the Superior Court and reinstate the judgment of sentence. I dissent because I believe that the majority uses the inadequate record in this matter to make a determination on the merits, finding that Appellee suffered no prejudice. Because many mistakes were made during every level of the proceedings to date, I believe that it is imperative to remand for an evidentiary hearing to conduct a rigorous analysis of Appellee’s claim of ineffective assistance of counsel.
The majority notes that Appellee raised two claims of ineffective assistance of counsel. The first one is that trial counsel erred by not objecting to the testimony regarding his pre-arrest silence. Because pre-arrest silence is admissible as fair response, the failure of trial counsel to object to its admission does not constitute ineffective assistance of counsel. I agree with the majority’s resolution of this first issue.
*583My dissent regards the majority’s disposition of Appellee’s second claim, which posits that counsel erred by opening the door for the prosecution to introduce evidence of his prearrest silence. The majority opines that “this claim of ineffectiveness can be definitively resolved by going directly to a consideration of prejudice.” Majority Opinion at 561-63, 866 A.2d at 336 (internal citation omitted). I respectfully disagree that this Court can review the issue of prejudice on this record, and I believe that this matter must be remanded to the trial court. On remand, the trial court would now have the benefit of clear direction from this Court, which finds that pre-arrest silence is admissible as fair response and that the failure of trial counsel to object to its admission does not constitute ineffective assistance of counsel. However, the trial court would have to determine whether counsel was ineffective for opening the door to the admission. I believe that this claim must be resolved on the merits, and that, contrary to the disposition of the majority, it is impossible to do this with the existing record.
The majority describes the labyrinthine procedural path traversed by this matter. To illustrate, Appellee filed a post-sentence motion alleging ineffectiveness of counsel for, inter alia, opening the door to the testimony revealing the prearrest silence. As a result, “[a] hearing on the matter was scheduled; however, the original record presented to this court, contains no transcript of an evidentiary hearing at this stage or any other reference that would indicate whether or not it was actually conducted.” Majority Opinion at 555-56, 866 A.2d at 332 (footnote omitted). “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.” Id. at 555-56, 866 A.2d at 332.
Following that, on appeal, the first Superior Court panel disagreed and opined that “the prejudice resulting from reference to Appellee’s silence was substantial.” DiNicola I, 751 A.2d at 202 (emphasis added). However, the Superior Court “deemed the record inadequate to assess whether coun*584sel had a reasonable basis for failing to object” and remanded for an evidentiary hearing limited to this question. Majority Opinion at 556-58, 866 A.2d at 333. At this hearing, counsel gave inconsistent explanations regarding his failure to object to cross-examination of the Trooper, and the trial court determined that all three prongs of the ineffectiveness inquiry were met and that a new trial must be awarded for Appellee.
When the Commonwealth appealed, an en banc panel of the Superior Court affirmed, with one dissent, at Commonwealth v. DiNicola, 797 A.2d 966 (Pa.Super.2002) (DiNicola II)With respect to the prejudice prong of the ineffectiveness inquiry, the court concluded that the prejudice was substantial, because “the central evidence presented at trial concerning actual criminal conduct on Appellee’s part was sharply conflicting, and the jury’s resolution was necessarily grounded in credibility determinations.” DiNicola II, 797 A.2d at 972 (emphasis added).
Despite the findings of prejudice that the Superior Court in DiNicola I and DiNicola II made, the majority reaches a directly opposite conclusion in the matter sub judice by finding that Appellee’s claim fails because he has not proved that without the opening of the door to his pre-arrest silence, the outcome of the proceedings would have been different. The majority determines that “[t]aken at face value, the revelation of silence in this case was limited to its context.” Majority Opinion at 563-64, 866 A.2d at 337.
I disagree. Appellee’s constitutional right to remain silent may well have been implicated and he may have suffered prejudice as a result of the evidence concerning his pre-arrest silence. The majority concludes that Appellee’s Fifth Amendment privilege against self-incrimination was not violated by reference to his pre-arrest silence. Majority Opinion at 552-53, 866 A.2d at 330. I share the perspective of the Superior Court majority that “[w]hen the Commonwealth referenced DiNicola’s pre-arrest silence prior to DiNicola testifying, the Commonwealth removed an incentive for DiNicola to assert his right not to testify.” DiNicola II, 797 A.2d at 972. The Superior Court noted that “[t]his case was based solely on the *585jury’s credibility determinations.” Id. This results from the fact that the matter essentially pitted Appellee’s word against that of a fourteen-year-old girl, where the central evidence at trial was in sharp conflict regarding Appellee’s guilt and where it was incumbent on the jury to make essential credibility determinations. Like the majority in DiNicola II, I believe that the prejudice resulting from the reference to prearrest silence could have been significant and may have been a motivating factor in Appellee’s decision to forego his Fifth Amendment privilege.
This Court explained in Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994), that “there exists a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt.... The rationale is that jurors expect an innocent person charged with a crime to deny guilt.” Id. at 404-405.1
In the case sub judice, after interviewing employees at the facility, the Trooper called Appellee for an interview, indicating that there had been allegations made against him regarding his employment. Appellee declined to meet with him, saying that he wanted to consult his attorney. Later, the attorney contacted the Trooper, telling him that Appellee denied any inappropriate conduct, but that, on advice of counsel, would assert his Fifth Amendment right to remain silent at any police interview. Whether or not appropriate on their part, I believe that the jury might well have expected an innocent person to deny involvement in the offenses involving the child victim, rather than to assert his Fifth Amendment right to remain silent, and that evidence of Appellee’s refusal to speak with the Trooper and failure to deny the allegations in that conversation could well have prejudiced him. The majority recognizes that the panel in DiNicola I found that “the prejudice resulting from reference to Appellee’s silence was substantial.” Majority Opinion at 556-58, 866 A.2d at *586333. However, the majority labels this finding “conclusory.” Id. On remand following DiNicola I, the trial court determined that all three prongs of the ineffectiveness inquiry had been met and awarded Appellee a new trial. In the DiNicola II appeal, the Superior Court again found that the prejudice resulting from the reference to the pre-arrest silence was substantial. I respectfully posit that the majority in the matter sub judice has leapt to an unsupported conclusion with its determination that the revelation of the silence had a limited impact when taken at face value.
Because Appellee’s very freedom is at issue and given the many mistakes of law and fact that occurred prior to this time, I believe that a new evidentiary hearing is warranted with respect to Appellee’s second ineffectiveness claim. At such hearing, Appellee would have to prove each of the three prongs of the test for ineffectiveness of counsel demonstrating that: (1) his underlying claim has arguable merit; (2) counsel’s decision to question the Trooper with respect to the scope of his investigation did not have some reasonable basis designed to effectuate Appellee’s interests; and (3) Appellee was prejudiced by counsel’s action. Commonwealth v. Smith, 539 Pa. 128, 650 A.2d 863, 866 (1994).
While I fully concur with the extension of the fair response doctrine to allow admission of pre-arrest silence, this does not dispose of the need to remand this matter to address Appellee’s remaining claim alleging that counsel was ineffective for opening the door in the first place to the disclosure of his prearrest silence.
. Although Crews involved this Court’s analysis of post-arrest silence, I believe that our delineation of the circumstances in which prejudicial inferences can be drawn from silence is germane to the matter sub judice.