dissenting.
I respectfully, yet vigorously, dissent from the Majority’s conclusion that evidence of Appellee’s pre-arrest lack of cooperation was properly admitted as rebuttal evidence because Appellee opened the “proverbial door” “by claiming that he gave police extensive information to advance their investigation.” Majority Op. at 445, 986 A.2d at 119. To the contrary, and consistent with the Superior Court’s decision herein, my review of the record indicates that it was the Commonwealth who first introduced evidence suggesting that Appellee was uncooperative in the police investigation, and improperly urged the jury to view such conduct as substantive evidence of Appellee’s guilt. For these reasons, I conclude that our previous decisions in Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996), and Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005), are clearly distinguishable, and the Majority’s reliance upon them is misplaced. Additionally, I disagree with the Majority’s finding of waiver, and conclude that Appellee properly preserved the specific claims upon which the Superior Court granted him relief.
It is undisputed that Appellee presented for payment a $100 check written to Linda McConnell, and, in doing so, provided the bank teller with his identity as set forth on his driver’s license. It is further undisputed that Appellee affixed his own signature on the back of the check underneath the purported signature of McConnell, and that McConnell never actually signed the check or gave Appellee authority to cash the check. The factual issue for the jury to resolve was whether Appellee knew that McConnell’s signature had been forged at the time he presented the check for payment, or whether he mistakenly believed that the “Linda” written on the check (Linda McConnell) was the same “Linda” (Linda Krieter) who had accompanied him to the bank.1
*453A review of the transcript of the very short trial reveals that the Commonwealth relied almost exclusively on Appellee’s lack of cooperation in the investigation conducted by Trooper Fagley to prove that he was guilty of the offenses charged, namely, forgery and theft by receiving stolen property. The Commonwealth’s method of establishing the elements of such offenses was to demonstrate that Appellee knew the $100 check had been stolen when he presented it for payment; not that Appellee, himself, forged McConnell’s signature. See N.T. 4/27/2007 at 40 (wherein the prosecutor noted in his closing argument, “And wouldn’t we all like to know who actually signed [the check]. Do we need to know retro whether this defendant committed forgery. No. Not at all. That’s not something that needs to be proven beyond a reasonable doubt.”); id. at 41 (wherein the prosecutor stated “So did [Appellee] utter, that means place into circulation, that means present to a teller, that commercial instrument, that check, knowing he was not authorized to do so. That’s the forgery.”); id. at 36 (wherein the prosecutor stated “[Appellee] presented the check as though he was authorized to do so. [Appellee] was not so authorized. And he knew it. Take a look at what he told the trooper.”) (emphasis added).
While it ultimately holds that Appellee opened the door to his lack of pre-arrest cooperation, the Majority recognizes that in the Commonwealth’s case in chief, it called Trooper Fagley to describe his investigation and give testimony about conversations he had with Appellee and the victim during his investigation. Op. at 439-40, 986 A.2d at 115-16. Significantly, the Majority acknowledges that, on direct examination by the Commonwealth, “[Trooper] Fagley also testified that [Appellee] refused to say where his church was located except that it was in the state of Pennsylvania and, in Fagley’s words, ‘that was the most amount of information I could get pertaining to *454that.’ ” Op. at 440, 986 A.2d at 116 (citing N.T., 4/26/2007, at 72.).
This statement elicited by the Commonwealth unmistakably introduced into the trial the notion that Appellee refused to participate in the police investigation.2 It was for this reason that Appellee, when testifying on his own behalf, attempted to rebut such inference by describing his efforts in answering Trooper Fagley’s inquiries.
Fundamental to my conclusion is that the specific claim upon which the Superior Court granted Appellee relief was based on: (1) the Commonwealth’s cross-examination of Appellee; and (2) the Commonwealth’s rebuttal testimony of Trooper Fagley, which occurred after the Commonwealth had introduced Appellee’s pre-arrest silence or lack of cooperation. Further, both of these particular references were met with prompt objections by defense counsel.
On cross-examination of Appellee, the following exchange occurred wherein the Commonwealth was questioning Appellee regarding whether he told Trooper Fagley Linda Krieter’s address.
THE COMMONWEALTH: You had been there [Linda Krieter’s house] six or eight times, right?
APPELLEE: More than that even by then.
THE COMMONWEALTH: Okay. So you told somebody [where Krieter lived]?
APPELLEE: Someone that was saying they were a State Police, Trooper Fagley.
THE COMMONWEALTH: Oh, and you think that was Trooper Fagley that you told?
APPELLEE: I don’t know. All I know is that when I talked I never saw his face, I never knew his voice.
*455THE COMMONWEALTH: He asked you to come to the barracks, didn’t he?
APPELLEE: No, he didn’t sir.
DEFENSE COUNSEL: Objection, Your Honor. Request a sidebar.
(Whereupon, a side-bar conference was held.)
N.T. April 26, 2007, at 123-24.
Defense counsel’s objection was based upon the Commonwealth’s violation of Appellee’s absolute right to remain silent by asking him whether he was invited to the police barracks to talk, and refused. The trial court overruled defense counsel’s objection.
Thereafter, the Commonwealth presented the rebuttal testimony of Trooper Fagley, whereupon the following exchange took place:
THE COMMONWEALTH: How many times did you try to get ahold of [Appellee] by the phone?
TROOPER FAGLEY: Numerous times. Originally it was probably three or four times before he returned my call.
COMMONWEALTH: And when you spoke with him, did you make inquiry of where, the — where you wanted the interview to be?
TROOPER FAGLEY: Yes. When he originally called back on the 5th of June at approximately 10:30 at night, I did ask him if he wanted to respond to the State Police barracks there in Butler and provide me a statement. He refused to do that. I then asked him, you know, what was his home address, I would come there and take a statement.
DEFENSE COUNSEL: Objection, Your Honor. Request a sidebar.
Id. at 169.
Defense counsel’s objection was again grounded upon Appellee’s Fifth Amendment right to silence, arguing that he was not required to go to the police station and give a written statement. The trial court overruled Appellant’s objection and denied his motion for a mistrial.
*456Accordingly, it is evident that the Commonwealth first introduced the subject of Appellee’s lack of cooperation in the police investigation during Trooper Fagley’s direct examination in its case in chief; and that Appellee promptly objected when the Commonwealth later exploited that evidence in the cross-examination of Appellee and the rebuttal testimony of Trooper Fagley. These circumstances, when viewed in the context of our decisions in Bolus and DiNicola, lead me to conclude that the Superior Court was correct in its ruling that the prosecutor’s questioning impaired the jury’s ability to render a fair and just verdict such as to make the grant of a mistrial imperative.
In Bolus, the defendant, an operator of a towing company, was charged with receiving stolen property, namely, a front-end loader. When initially questioned by police prior to arrest, the defendant denied having any knowledge regarding the whereabouts of the front-end loader, and then refused to cooperate with the police. 680 A.2d at 841. At trial, however, the defendant testified to a different version of the events, i.e., that he had purchased the front-end loader from an enumerated individual. Id. On cross-examination, the prosecutor questioned the defendant regarding the fact that he never told the officers that he had purchased the front-end loader. Id. The claim raised on appeal was whether trial counsel was ineffective for failing to object to the questions concerning the defendant’s pre-arrest failure to cooperate in the police investigation.
Our Court ruled in Bolus that counsel was not ineffective for failing to object as the claim lacked arguable merit. Id. at 844. We relied on Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), which held that the use of an accused’s pre-arrest silence to impeach his credibility on cross-examination when the defendant testifies at trial does not violate the Fifth or Fourteenth Amendments.3 680 A.2d at 843.
*457This case is distinguishable from Bolus because here, the Commonwealth initially introduced the evidence of Appellee’s lack of cooperation, and did not present such evidence to impeach any testimony of the defendant, as occurred in Bolus. In fact, Appellee had not even testified at the point of the trial when Trooper Fagley first remarked on Appellee’s failure to cooperate in the investigation. Moreover, the Commonwealth in Bolus did not use the defendant’s “silence” to suggest consciousness of guilt, as the Commonwealth did in the instant case, but rather used the evidence to impeach specific testimony relative to the elements of the offense charged. The same is not true here.
Our decision in DiNicola is likewise distinguishable. There, the defendant was charged with aggravated indecent assault of a minor. Unlike the case at bar where the Commonwealth initially introduced the evidence of the defendant’s pre-arrest “silence,” the defense in DiNicola presented the testimony of the investigating trooper to elicit responses indicating that the police investigation was inadequate. 866 A.2d at 331. The Commonwealth objected, noting that such questioning would lead to the trooper revealing the defendant’s pre-arrest assertion of silence. The trial court overruled the objection, and trial counsel proceeded with its direct-examination of the trooper, asking leading questions implying that the investigative efforts were minimal. The Commonwealth again objected, contending that the questioning would open the door to the trooper elaborating on his unsuccessful effort to interview the defendant. The trial court again overruled the objection, but tried to dissuade trial counsel from his intended course. Trial counsel then queried, “Now, was anything done by you— anything — did you look into any other direction to see if these charges were unfounded?” Id. at 332. When the trooper responded that he had contacted the defendant, trial counsel interrupted the response, shifting the focus away from the defendant’s response to the trooper’s inquiry. On cross-*458examination, however, the Commonwealth elicited the trooper’s explanation that the defendant denied his request for an interview. Id.
With new counsel, the defendant challenged trial counsel’s ineffectiveness for failing to object to the trooper’s reference to his pre-arrest silence, and for opening the door to the inevitable revelation. We held that trial counsel was not ineffective for failing to object to the trooper’s reference to the defendant’s pre-arrest silence because the Commonwealth’s elicitation of such testimony was in “fair response” to the defendant’s own questioning. Id. at 336. We relied on U.S. v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), which held that the Fifth Amendment is not violated when the government allows reference to defendant’s pre-arrest silence solely for the purpose of fair response to a defense argument. 866 A.2d at 336. As to the claim that counsel was ineffective for opening the door to the revelation, we held that the defendant failed to demonstrate prejudice because the reference was not used in any way that was likely to burden his Fifth Amendment right or to create an inference of guilt. Id. at 337.
Here, the Commonwealth did not reference Appellee’s prearrest conduct as “fair response” to an initial comment made by Appellee, but instead the Commonwealth, itself, initiated the subject and used that evidence to create an inference of guilt. We emphasized in DiNicola that a balance must be struck between “probative value versus prejudicial effect on appropriate objection,” 866 A.2d at 336. That balance in the instant case weighs in favor of Appellee. As cogently noted by the Superior Court, “[i]n this case, the record bears no semblance of the balance DiNicola requires; in point of fact, it documents a persistent line of inquiry by the prosecutor that effectively shredded the defendant’s presumption of innocence on no sounder a basis than his refusal to volunteer information to a state trooper.” Commonwealth v. Lettau, 955 A.2d 360, 366 (Pa.Super.2008).
Accordingly, I would affirm the Superior Court’s decision to vacate Lettau’s judgment of sentence and grant a new trial.
. Linda Krieter testified consistent with Appellee’s defense that she, in fact, requested him to cash the check upon the direction of Paul Hagley, *453and that she accompanied Appellee to the bank when the check was cashed. To the contrary, Paul Hagley testified that he never requested Appellee to cash a check for him. The defense theory was that Paul Hagley, and not Appellee, had committed the forgery and coaxed Appellee into cashing the $100 check for him.
. I concede that there was no defense objection made to Trooper Fagley's direct examination. This is not fatal to Appellee's claim, however, because he is not contending that Trooper Fagley's direct examination testimony constituted prejudicial evidence that denied him a fair trial. Instead, he is asserting that such reference by Trooper Fagley in the Commonwealth’s case in chief in fact opened the door to the subject of his pre-arrest lack of cooperation. Thus, under Bolus and DiNicola, the Commonwealth could not introduce Appellee's prearrest conduct and then proceed to exploit the same in its subsequent cross-examination of Appellee, and again in the rebuttal testimony of Trooper Fagley; the two instances where Appellee promptly objected.
. I emphasize that the High Court in Jenkins expressly noted that its decision did not force any state court to allow impeachment through *457the use of pre-arrest silence, but that each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial. 447 U.S. at 240, 100 S.Ct. 2124.