J-S41011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

KARL BROWN,

                         Appellant                No. 1364 EDA 2013


        Appeal from the Judgment of Sentence December 19, 2012
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013707-2010


BEFORE: BOWES, DONOHUE, and MUNDY, JJ.

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 28, 2014

      Karl Brown appeals from the judgment of sentence of seven to

fourteen years imprisonment imposed by the trial court after a jury found

him guilty of aggravated assault and possession of an instrument of crime.

After careful review, we affirm.

      The victim, David Montgomery, arrived at Melrose Bar in Philadelphia

at approximately 8:00 p.m. on September 22, 2010.       Montgomery saw a

                                                              he two sat at

a booth. Montgomery ordered a beer for Linda and the two remained at the

bar without incident until 10:30 p.m.   At that time, Appellant entered the

establishment, approached Linda, and began to quarrel with her. Appellant

and Montgomery then exchanged words. Another patron, Raymond Brown,
J-S41011-14


who is not related to Appellant, indicated that Montgomery appeared to

brandish a knife during the argument. Raymond Brown then left the bar.

     Due to the argument, the bar owner asked Montgomery and Appellant

to leave. Appellant exited and utilized a payphone outside the bar. While

Appellant was on the phone, Montgomery approached and indicated to a

friend traversing down the street that he had a problem with Appellant.

Appellant and Montgomery continued their previous argument, resulting in

Appellant stabbing Montgomery.      Montgomery left the area and walked

approximately one and one-half blocks to a Chinese restaurant before asking

                                                                  lacerated

and he was transported to the hospital where he underwent emergency

surgery. Police arrived and detained Appellant as he exited another bar in

the area. At the time, Appellant had a bloody knife on his person. Testing

on the knife confirmed that the blood matched the DNA of Montgomery.

     Appellant proceeded to a jury trial. At trial, Appellant argued that he

acted in self-defense and contended that the police investigation was less

                                                                 d weapon.

Appellant did not testify.   During closing arguments, the prosecutor set



Montgomery, not even the defendant when the police were just having a

casual conversation with him, no

9/25/12, at 239.     Appellant objected, and was overruled.       After the


                                   -2-
J-S41011-14




In doing so, Appellant averred that the prosecutor improperly commented on

his silence in violation of his right against self-incrimination.         The court

denied the motion, and the jury returned the aforementioned guilty

verdicts.1 Prior to sentencing, Appellant again moved for a new trial based

                                          ppellant not telling police that the victim

had a knife. The court denied that motion and sentenced Appellant to seven

to fourteen years incarceration on the aggravated assault charge.

        Appellant filed a timely post-sentence motion, which the court denied

by operation of law.          This timely appeal ensued.        The court directed

Appellant to file and serve a concise statement of errors complained of on

appeal.    Appellant complied, and the trial court authored its opinion.         The

matter is now ready for this Cour




decision to remain silent during and immediately afte



        We evaluate the denial of a mistrial based on an abuse of discretion

standard. Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008). A

mistrial is only mandated where the objected-to action is of such a nature
____________________________________________


1
    The jury also acquitted Appellant of attempted murder.




                                           -3-
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that its unavoidable effect is to deprive the defendant of a fair and impartial

trial. Id.




because, after all, a person who actually defended himself surely would have



Quoting Commonwealth v. Greco, 350 A.2d 826, 828 (Pa. 1976),

                                                                    nce of a




12.     In Greco, the Commonwealth questioned a police officer about

whether the defendant had ever said anything to police. The officer related

that he had several conversations with the defendant, had advised him of his

right to remain silent, and that the defendant did not make any statements

aside from general conversation. The Greco Court ruled admission of this

evidence to be error.

      Appellant also highlights that he did not testify at trial. Accordingly,

he maintains that this case does present the situation where his silence at



reference by the prosecutor to previous silence is impermissible and

                   Id. (quoting Commonwealth v. Turner, 454 A.2d 537,


                                     -4-
J-S41011-14


539-540 (Pa. 1982)).       Appellant continues that a prosecutor cannot



custody. See Commonwealth v. Easley, 396 A.2d 1198, 1201 (Pa. 1979).



comment referred to pre-arrest silence. He asserts that at the time of his

silence he was in custody because police approached him, removed the knife

from his possession, and placed him under arrest.        In this respect, he

highlights that the arresting officer did not testify to a conversation with

him, only that the officer approached and detained him.      Thus, Appellant



unsupported by the evidence.

                                                        en banc decision in

Commonwealth v. Molina, 33 A.3d 51 (Pa.Super. 2011) allowance of

appeal granted 51 A.3d 181 (Pa. 2011). In Molina, an en banc Court ruled



                    -arrest silence, in not speaking to a missing persons

investigator, should be used as a tacit admission of guilt in a homicide case.

After collecting cases from various jurisdictions and discussing a split in

authority on pre-arrest silence, the Molina

no moment whether the silence occurred before or after the arrest or before

or after Miranda warnings were administered.      The Fifth Amendment was

enacted to protect against self-incrimination, whether they are in custody or


                                    -5-
J-S41011-14


not, charged with a crime, or merely being questioned during the

                               Id. at 63.



handcuffs or advised of his rights pursuant to Miranda, supra, prior to his
                                                                      2
                                                                          In this

regard, Appellant quotes from Easley, supra at 1201, wherein the Court set

forth,

         We do not believe any reason exists to differentiate between
         situations where the right to remain silent is exercised following
         warnings and where it is exercised without warnings being given.
         Whether or not the exercise of the right to remain silent is
         induced by being advised of it at the time of arrest or is self-
         motivated by prior knowledge of it by the accused should not
         limit or extend the effect of exercising the right.

         Appellant adds that the

his defense. In leveling this aspect of his argument, Appellant posits that,


____________________________________________


2
  A panel of this Court recently noted that Pennsylvania case           have
established and analyzed four distinct time periods during which a defendant

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
       Commonwealth v. Kuder, 62 A.3d 1038, 1049 (Pa.Super. 2013)
(footnote omitted). In addition,
Circuits have held that pre-arrest, pre-Miranda silence is not admissible as
substantive evidence of guilt.... The Fifth, Ninth, and Eleventh Circuits, on
the other hand, have held that pre-arrest, pre-Miranda silence is admissible
                                    Commonwealth v. Molina, 33 A.3d 51,
61 (Pa.Super. 2011) allowance of appeal granted 51 A.3d 181 (Pa. 2011).




                                            -6-
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completeness of an investigation or otherwise comments on the presence or

lack of evidence, the prosecutor is automatically entitled to argue to the jury

that the defendant, while being arrested or immediately thereafter, could



brief at 15.    Appellant distinguishes the Pennsylvania Supreme Court

decision in Commonwealth v. Copenhefer, 719 A.2d 242 (Pa. 1998), and

the United States Supreme Court decision in United States v. Robinson,

485 U.S. 25 (1988), and avers that this case is more analogous to

Commonwealth        v.   Dulaney,     295   A.2d    328      (Pa.    1972),   and

Commonwealth v. DiPietro, 648 A.2d 777 (Pa. 1994).

      In   Copenhefer,    the   defendant   testified   in   his    own   defense.

Copenhefer was charged with, among other crimes, kidnapping and killing

the victim therein. During questioning by his own attorney, he related that

he spoke with police and did not have anything to hide and told them

everything.    The prosecutor during cross-examination pointed out that

Copenhefer had actually refused on two occasions during the pertinent police

interview to tell police what he did on the afternoon of the date of the

kidnapping of the murder victim.     The Pennsylvania Supreme Court ruled

                                                          Robinson, supra.

      In Robinson, defense counsel during his closing argument maintained

that the defendant was not afforded an opportunity to tell his side of the

story. The prosecutor responded that the defendant could have taken the


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stand.      The United States Supreme Court ruled th



compulsory self-

argument.

     The Pennsylvania Supreme Court in Dulaney awarded a new trial

based on a prosec                                                  Dulaney are

remarkably similar to this case.      Therein, the defendant had a verbal

argument in a Philadelphia bar.      The men then encountered each other

outside the bar several blocks away where the argument continued.

Dulaney fatally stabbed the victim in the chest.          Police later arrested



                           Dulaney, supra at 330. Dulaney testified at trial

and maintained that he stabbed the victim after the victim threatened him

and reached for a gun.

     In his closing, the prosecutor argued:

     if you had killed a man in self-defense and an officer, a detective
     in Homicide Division, and you knew you had been apprehended
     and this was it, asked you explain the murder of [the victim],

     did it. I did it, but listen, I did it because I was afraid of him. He
     had a gun . . .. Honest, Detective, I didn't mean to kill him. I
     wouldn

     stabbed him, you'd want the detective to know from the very,
     very beginning . . .. But the first thing you do once the police
     finally apprehended you and asked you explain the murder, boy
     they couldn't get me to stop talking if they said explain the
     murder and I had murdered somebody in self-defense, they
     couldn't shut me up until I told them every ramification of why I

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        was afraid of him, what a bad guy he was, how he was an
        enforcer for a dope ring. They couldn't shut me up until I told all

        hear the story of self-defense until five months later. You think
        about that.

Id.

        The Dulaney

police was not only a constitutional right of the accused, but indeed probably

                                     Id

Commonwealth to use this fair assertion of a constitutional right as an

admission of guilt was to fly in the face of the Fifth Amendment and the

                                            Id.

        DiPietro also involved an altercation after a verbal argument inside a

bar. The defendant therein, after the argument, drove his car over a curb

and struck the victim.       Police arrested the defendant and he agreed to

discuss certain aspects of the incident after completing a Miranda waiver

form.    During the course of the interview, DiPietro related some facts but

then ceased talking. DiPietro did not inform police that he struck the victim

by accident.

        The prosecution questioned the police officer who conducted the

interview, and asked whether DiPietro had said the incident was an accident.

The trial court overruled an objection. Subsequently, the prosecutor stated

in closing argument:

        [W]hy doesn't he tell that man, Trooper Harriman, My golly,
        good grief, what did I do? It was a terrible, terrible accident. I've

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     been having this car problem. The brakes are bad. It kept
     stalling.

     When do we hear that? We hear that today from the witness
     stand. We didn't hear that from any of the police officers.
     Doesn't common sense simply tell you that if you're in that kind
     of situation, that would be the first thing out of your mouth?

     [Objection]

     I would suggest that that would be the first thing out of a man's
     mouth when he's talking to this officer about this specific
     incident.

DiPietro, supra at 778 (brackets in original).   The DiPietro Court ruled




                    Dulaney and DiPietro

when a criminal defendant asserts a particular defense, the prosecution may




     Finally, Appellant argues that the alleged error in this matter is not



                                  Id. at 18 (quoting Commonwealth v.

Clark, 626 A.2d 154, 158 (Pa. 1993), and citing Turner, supra at 539,

                           the defendant resulting from reference to his



argument was not cumulative nor was the evidence overwhelming.




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J-S41011-14


     The Commonwealth begins by arguing that Appellant has waived his

claim base

9. We summarily dispose of this frivolous waiver argument and note that



Commonwealth continues, nevertheless, that th



extensive search of the two areas where Mr. Montgomery was first stabbed



     The Commonwealth, as did Appellant, quotes the entirety of the




     they find a knife? There was [sic] no allegations of another
     knife. The other Brown, the Brown that he called, could have
     went to the police and said he had a knife on him that night. He

     nobody said that Mr. Montgomery, not even the defendant when
     the police were just having a casual conversation with him,
     nobody said that he had a knife. Nobody said it. So there was
     no knife to look for.

     Defense Counsel: Objection, Your Honor.

     Court: You may continue but just note.

     Prosecutor: Nobody said that he had a knife.      Nobody said it.
     So there was no knife to look for.

N.T., 9/25/12, 239.

     According to the Commonwealth, the reference to Appellant not

informing police of the victim allegedly having a knife was not argument that

                                               ubstantive evidence of guilt.

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investigation    was    poor.      The    Commonwealth          also   argues   that   the

                                               -arrest conduct and, discounting this

         Molina

                                                                                   -arrest
                                               3
                                                   In support of its contention that the

prosecutor referenced pre-arrest silence, the Commonwealth acknowledges

that Officer Joseph Goodwin patted down Appellant, recovered the bloodied

knife, and detained Appellant to be transported to the hospital for potential

identification by the victim.          After the victim identified Appellant, the

Commonwealth           formally    arrested        Appellant.          Accordingly,    the

Commonwealth contends that since Appellant was not formally arrested until

                                                                         -arrest silence.

       The Fifth Amendment provides in



Const. amend. V.          Similarly, but not identically, Article I, § 9 of the




____________________________________________


3
  The Commonwealth argues that there is no federal or state constitutional
right against self-accusation in the pre-arrest setting and ignores that this
Court is bound by the en banc decision in Molina until the Pennsylvania
Supreme Court or the United States Supreme Court overrules the decision.



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J-S41011-14


                                                            4
c                                                               At the time of ratification, to

be a witness and to give evidence were considered synonymous and, both

terms, under a plain meaning interpretation, applied to more than trial

testimony.       See United States v. Hubbell, 530 U.S. 27, 51 (2000)

(Thomas, J., concurring). In fact, the right prohibited compelling a person

to produce incriminating physical evidence. Id.; Boyle v. Smithman, 23 A.

397, 398 (Pa. 1892); but see Fisher v. United States, 425 U.S. 391

(1976) (incriminating physical evidence may be compelled).

       Neither    the   text    of   the      federal   or       Pennsylvania      Constitution

differentiate    between     usage      of    pre-arrest        or   post-arrest   silence   as

substantive evidence against the accused, but subsequent decisions have

made it clear that post-arrest silence may not be used against a defendant.

Griffin    v.    California,      380        U.S.     609       (1965);    Turner,     supra;

Commonwealth v. Kuder, 62 A.3d 1038, 1049 n.6 (Pa.Super. 2013).

Importantly, the Miranda5 decision and the requirement that defendants be

____________________________________________


4
  This provision was contained in Article IX of the Declaration of Rights of the
1776 Pennsylvania Constitution, well before the ratification of the federal Bill
of Rights. Seven other states included a prohibition against compelling a
defendant from giving evidence against himself before the adoption of the
Bill of Rights. See United States v. Hubbell, 530 U.S. 27, 51 (2000)
(Thomas, J., concurring) (collecting constitutional provisions).            The
Pennsylvania Supreme Court has not held that for all purposes the Fifth
Amendment and Article I, § 9 are co-extensive. D'Elia v. Pennsylvania
Crime Com'n, 555 A.2d 864, 870 (Pa. 1989).
5
   Miranda v. Arizona, 384 U.S. 436 (1966).




                                             - 13 -
J-S41011-14


given Miranda warnings after an arrest occurred well after the founding era.

Accordingly, at the time of ratification of the Fifth Amendment, Miranda

warnings had no impact on interpreting the prohibition against compelling

evidence against oneself.

                                                   ra, peace officers had no authority

at all to interrogate even arrestees, let alone suspects. Indeed, there were

no police officers or departments in the modern sense during the framing

                                    Farther and Farther from the Original Fifth

Amendment:           The    Recharacterization       of   the   Right   Against   Self-

                                                                , 70 Tenn. L. Rev. 987,

1003 (2003); Dickerson v. United States, 530 U.S. 428, 435 n.1

(2000)).6 Further, while the Fifth Amendment and its state counterpart are



____________________________________________


6
    Professor Davies has also opined,

        Framing-era common law did not permit officers to interrogate
        or take statements or confessions from suspects. See, for
        example, Chief Justice Pratt's (Lord Camden's) remark in the
        press accounts of Leach to the effect that officers could not be
        permitted to arrest or search at their discretion any more than
                                                                    supra
        note 22. In fact, although English statutory law created authority

        under oath) and record their answers for evidence in a
        subsequent trial, there is evidence that at least some American
        jurisdictions viewed that practice as violative of the common-law
        right against compelled self-accusation. Hening's 1794 Virginia
        justice of the peace manual had this to say:
(Footnote Continued Next Page)


                                          - 14 -
J-S41011-14


most frequently thought of as precluding the requiring of a defendant to

testify at his own trial, this was not a critical issue during the founding era as

defendants were not permitted to testify at their own trial; indeed, they

were considered incompetent to testify.             Ferguson v. State of Ga., 365

U.S. 570, 574-

deemed incompetent as witnesses. In Rex v. Lukens, 1 Dall. 5, 6, 1 L.Ed.

13, decided in 1762, a Pennsylvania court refused to swear a defendant as a



                                 7



      The greater concern was governmental interrogation prior to the

bringing of criminal charges and an arrest, such as occurred in the infamous
                       _______________________
(Footnote Continued)

         The justice, before whom the prisoner is brought, is bound
      immediately to examine the circumstances of the crime alleged.
      But the power of examining the prisoner himself and committing
      his examination to writing seems not to be recognized by our
      laws. This authority was granted by statute of England of
      Ph[illip] & M[ary], which not having been adopted by our
      legislature, is consequently not in force. And that these
      proceedings are repugnant to the common law, will appear...
      from judge Blackstone, who says, that at the common law, no
      man was bound to betray himself: and his fault was not to be
      wrung out of himself, but rather to be discovered by other
      means and other men.

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547, 750 n.574 (1999).
7
  According to the Court in Ferguson v. State of Ga., 365 U.S. 570, 577
(1961), Pennsylvania first made defendants competent to testify in 1885.
Id. at 577 n.6.



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Star Chamber. Cf. Pennsylvania v. Muniz, 496 U.S. 582, 595-596 (1990)



use of legal compulsion to extract from the accused a sworn communication

of facts which would incriminate him. Such was the process of the

ecclesiastical courts and the Star Chamber      the inquisitorial method of

putting the accused upon his oath and compelling him to answer questions

designed to uncover uncharged offenses, without evidence from another

source. The major thrust of the policies undergirding the privilege is to

                               At the time of the ratification of the federal

constitution and the earlier state charters, governmental interrogation was

intended at common law to be limited to a judicial examination immediately

after an arrest, which was not intended to compel a confession. See Davies,

supra at 1002-1003 (citing 4 William Blackstone, Commentaries at 293 (1 st

ed. 1769)).

      The eminent Chief Justice John Marshall in United States v. Burr, 25

F.Cas. 38 (C.C. Va. 1807), a case involving the treason trial of Aaron Burr,

while on circuit, opined:

      Many links frequently compose that chain of testimony which is
      necessary to convict any individual of a crime. It appears to the
      court to be the true sense of the rule that no witness is
      compellable to furnish any one of them against himself. It is
      certainly not only a possible but a probable case that a witness,
      by disclosing a single fact, may complete the testimony against
      himself, and to every effectual purpose accuse himself as
      entirely as he would by stating every circumstance which would
      be required for his conviction. That fact of itself might be
      unavailing, but all other facts without it would be insufficient.

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      While that remains concealed within his own bosom he is safe;
      but draw it from thence, and he is exposed to a prosecution. The
      rule which declares that no man is compellable to accuse himself
      would most obviously be infringed by compelling a witness to
      disclose a fact of this description.

Id. at 40. The witness in Burr,

                                                                  Hence, the

original meaning of the Fifth Amendment and its Pennsylvania predecessor

strongly supports the notion that it applied to pre-arrest procedures

involving government actors.

      Critically, if one could not be compelled to answer to governmental

interrogation pre-arrest, it would make little logical sense if the failure to

answer could be used as substantive evidence to bring forth charges or

prove guilt. To hold otherwise would be to eviscerate the right against self-

accusation as any time a person remained silent, such evidence would be

used against the person. Thus,

of speaking to police and potentially incriminating themselves or having their

silence used as substantive evidence of wrongdoing. See Commonwealth

v. Reed, 42 A.3d 314, 322 n.4 (Pa.Super. 2012); see also Jenkins v.

Anderson

impose a duty to report one's own crime before an official accusation has

been made would itself be to compel self-incrimination, thus bringing the

                               In this respect, Pennsylvania courts have long

prohibited silence as evidence of guilt where a defendant is in the presence


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of police. Commonwealth v. Dravecz, 227 A.2d 904 (Pa. 1967);

Commonwealth v. Schmidt, 299 A.2d 254 (Pa. 1973) (plurality);

Commonwealth        v.   Coccioletti,    425    A.2d    387    (Pa.    1981);

Commonwealth v. Cull, 656 A.2d 476, 481 n.5 (Pa. 1995) (OAJC).



[of the right against self-accusation] was to insure that a person should not

be compelled, when acting as a witness in any investigation, to give

testimony which might tend to show that he himself had committed a

         Counselman v. Hitchcock, 142 U.S. 547, 562 (1892) abrogated

on other ground by Kastigar v. United States, 406 U.S. 441 (1972). Our

Supreme Court has discussed the use of silence and the right against self-

incrimination in varying contexts. An examination of these cases is helpful.

In Commonwealth v. Vallone, 32 A.2d 889 (Pa. 1943) abrogated in part

by Dravecz, supra, our Supreme Court, stated,

     The rule of evidence is well established that, when a statement
     made in the presence and hearing of a person is incriminating in
     character and naturally calls for a denial but is not challenged or
     contradicted by the accused although he has opportunity and
     liberty to speak, the statement and the fact of his failure to deny
     it are admissible in evidence as an implied admission of the truth
     of the charges thus made.

Vallone, supra at 890.

     Vallone occurred before the Fifth Amendment was extended to the

states and, as noted, has subsequently been overturned.         Chief Justice

Maxey authored a lengthy dissenting opinion therein addressing the inherent


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problems of tacit admissions. See also Commonwealth ex rel. Staino v.

Cavell, 217 A.2d 824 (Pa.Super. 1966) (Hoffman, J., dissenting) (discussing



     The facts of Vallone involved a charge of transporting a female for the

purpose of prostitution.    While the defendant was in the presence of a



transporting of her and her transferring money to him that she earned from

her acts of prostitution. The defendant did not respond. Besides noting that

the defendant

              id



significance and is merely conjectural and yet possible harmful to a

defendant when considered by untrained minds, and therefore it should not

                           Id

substantially became the law of Pennsylvania in Dravecz, supra.

     Dravecz involved

defendant that implicated the defendant in a burglary. The accused made

no comment once the officer was done reading the statement. The Supreme

Court issued four separate opinions. Justice Eagan filed a concurring opinion

joined by three other justices.   Justice Roberts filed his own concurring

opinion and Justice Musmanno authored the lead opinion. Chief Justice Bell

penned a short dissent.


                                   - 19 -
J-S41011-14


      Justice Musmanno, after recognizing that the Fourteenth Amendment

extended the right to remain silent to the states, opined:

      The untenability of the tacit admission rule is illustrated in the
      following startling proposition. A defendant is not required to
      deny any accusation levelled at him in a trial no matter how
      inculpatory. He may be charged with the most serious of
      offenses, including murder and high treason. A cloud of
      witnesses may testify to circumstances, events, episodes which
      wrap him in a serpent's embrace of incrimination, but no
      inference of guilt may be drawn from his failure to reply or to
      take the witness stand. Indeed, and properly so, if the
      prosecuting attorney or the judge makes the slightest reference
      to the fact that the accused failed to reply to the accusations
      ringing against him, and a verdict of guilt follows, a new trial is
      imperative. And yet, under the Vallone holding, an accusatory
      statement made in any place chosen by the accuser, whether on
      the street, in the fields, in an alley or a dive, if unreplied to, may
      be used as an engine in court to send the defendant to prison or
      to the electric chair.

Dravecz, supra at 906.

                                                               -accusing witness

by coerced answers, he should not be made a witness against himself by

                                  Id

tacit admission was

      as insidious as monoxide gas which does not proclaim its
      presence through sound or smell. A forced confession is a
      steam-chugging locomotive moving down the track, blowing its
      whistle and clanging its bell with the victim tied to the rails. A
      tacit admission is a diesel locomotive silently but relentlessly
      moving forward without audible signals and striking the victim
      unawares. The approach is different, the effect is the same.

Id.




                                       - 20 -
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      The discussion in Dravecz was subsequently modified in Schmidt,

supra.      In Schmidt, the defendant was found guilty of murder during a

burglary.     During his trial, two witnesses testified that shortly after the

burglary they were with Schmidt and his co-defendant in a car when the co-

defendant said that he was going to burn his fingerprints. Schmidt made no



was not the subject of the remark, and thus there was no reason for him to

make any response.       The evidence, therefore, lacked probative value in

establis                                                Id. at 265.

      However, the court held that the Schmidt was not entitled to post-

conviction relief because it did not violate his Fifth Amendment right against

self-incrimination. At that time, only constitutional mistakes afforded relief

under the Post Conviction Hearing Act. The Schmidt Court stated that tacit

admissions only violate the constitution in the face of police questioning.

Subsequently, in Coccioletti, supra, our Supreme Court provided that

Dravecz, supra

or                                       Coccioletti, supra at 392 (emphasis

added).

      In Easley, supra, the defendant testified at trial that he acted in self-

defense in shooting a woman in her home. According to the defendant, he



in attacking his mother.    He testified that when he mentioned his mother

being beaten, the victim threw hot grease at him and removed a gun from

                                     - 21 -
J-S41011-14



between the stove and sink and pointed it at him. In his version of events,

as they fought over the gun it went off and wounded the victim.            The

defendant then claimed he emptied the gun of its bullets, confiscated

additional ammunition and took the gun so that he could take it to police.



a box of ammunition, and a magazine for the weapon.

         The prosecutor questioned Easley regarding whether he informed

police of these events when he was arrested. The defendant admitted that

he did not and stated that he had invoked his right to remain silent.



forth:

         He said he was going to walk down over to Wolf Street, and
         conveniently he was going to take the bullets, he was going to
         take the clip, he was going to take the gun and he was going to
         tell the police just what happened.

         Unfortunately for him someone called the police in the meantime
         and they catch him and his brother coming down the stairs.

         Now, at that time does he tell the police? He has the right to
         remain silent. You have heard that. You know that. But he told
         us here he is going to tell the police the whole thing was an
         accident. Does he ever tell anybody that?

         Now today he does. After he has access to all these notes for
         five or six months.

Easley, supra at 1201.

                                                                Easley Court

held the questioning and argument impermissibly violated th


                                     - 22 -
J-S41011-14


right to remain silent. In doing so, the Court rejected the position that the



that he intended to summon police.

     In Turner, supra, the defendant also claimed self-defense in a

shooting. During cross-examination, the Commonwealth asked whether the

defendant had told police that someone had shot at him. The defendant had

not provided police with any statements before or after his arrest. The trial

court sustained an objection before the defendant could answer, declined to

declare a mistrial, and instructed the jury to disregard the question.   The

Turner

the use of pre-Miranda silence is permissible to

                                         Turner, supra at 582. Nonetheless,



Commonwealth, the cautionary instruction was insufficient, and the error

was not harmless.

     The Supreme Court distinguished Turner in Commonwealth v.

Bolus, 680 A.2d 839 (Pa. 1996). In Bolus, the question was whether trial



                              -arrest silence.   The Pennsylvania High Court

concluded that Turner

silence after the defendant was arrested but before he was provided his

Miranda warnings.     It then analyzed the United States Supreme Court


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decision in Jenkins, supra, which held that pre-arrest silence may be

admissible as impeachment evidence. Central to Jenkins and Bolus, was

the fact that the defendant had elected to testify and cast aside his cloak of

           Jenkins, supra at 238.

      More recently, the Pennsylvania Supreme Court discussed silence as

an admission in Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005).

DiNicola was a Commonwealth appeal from a Superior Court en banc

decision that found counsel ineffective      for   failing   to   object to   the

                                                   -arrest silence where the

defendant testified.    Police charged DiNicola with aggravated indecent

assault and related charges. Prior to being charged, the investigating state

trooper contacted DiNicola and asked for an interview.

      DiNicola indicated that he would need to contact an attorney.

Subsequently, his attorney informed police that the defendant denied the

allegations and, on the advice of counsel, would assert his right to remain



prosecution objected, arguing that it might lead the officer to mention

              -arrest silence.   During cross-examination, the prosecution

elicited that DiNicola declined to be interviewed by police. It also garnered



DiNicola denied the allegations and would invoke his right to remain silent

during a police interview.


                                    - 24 -
J-S41011-14


       Our Supreme Court held that the Fifth Amendment does not preclude a

prosecutor from fairly responding to defense argument by referencing a



reference to silence and its Fifth Amendment source was circumspect; it was



                                                                        Id. at

337.

                                                           re to affirmatively

inform police that the victim had a knife or offer information that he acted in

self-defense at the time the police came into contact with him for

investigatory purposes. Hence, even under the common law tacit admission

rule, evidence of silence would not be admissible as evidence of guilt. See

Vallone, supra; Jenkins, supra at 248-

common law silence is admissable [sic] to contradict subsequent statements

only if the circumstances would naturally have called for a response. For

example, silence was traditionally considered a tacit admission if a

statement made in the party's presence was heard and understood by the

party, who was at liberty to respond, in circumstances naturally calling for a

response

                                                                   -arrest and

post-arrest silence is unavailing based on long-standing precedent where the

defendant is in the presence of police, even if not in official custody.


                                    - 25 -
J-S41011-14


Dravecz, supra; Schmidt, supra; Coccioletti, Cull, supra at 481           This

rule is not applicable in criminal cases where the defendant is in police

custody or in the presence of police officers because a contrary policy would

effectively vitiate a defendant's constitutionally-guaranteed right against

self-                    The question, however, remains whether the objected-

to reference was used as substantive evidence of guilt.      As the DiNicola

                      the mere revelation of silence does not establish innate

             DiNicola, supra at 336 (citing Commonwealth v. Whitney,



reversible error where it occurs in a context not likely to suggest to the jury

that silence is the                                          Commonwealth

v. Nolan, 634 A.2d 192, 197-198 (Pa. 1993); Commonwealth v. Adams,

39 A.3d 310, 321-322 (Pa.Super. 2012); see also Robinson, supra at 42

(Marshall, J., dissenting); but see Turner, supra; Easley, supra.




silence was substantive evidence that he attacked the victim.      Rather, the

Commonwealth was inartfully attempting to respond to why police did not

undertake a more thorough investigation for a second knife.                The



tacit admission of his guilt. We, nonetheless, agree with Appellant that the


                                      - 26 -
J-S41011-14




police merely because a defendant questions a police investigation.

However, the prosecution did not urge the jury to find Appellant guilty

because he did not inform them of his self-defense theory, nor argue that

Appellant was required to tell police that he acted in self-defense when he

was first detained.     Contra Dulaney, supra (reversing where prosecutor

argued that failure to inform police of self-defense was telling); DiPietro,

supra; Easley, supra. Accordingly, we find that Appellant is not entitled to

relief.

          Judgment of sentence affirmed.

          Judge Donohue files a Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2014




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