                            [J-9-2013][M.O. – Baer, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 58 MAP 2012
                                              :
                   Appellant                  :   Appeal from the Order of the Superior
                                              :   Court entered on 1/20/12 at No. 2464
                                              :   EDA 2009 which vacated/remanded the
              v.                              :   judgment of sentence of Delaware
                                              :   County Court of Common Pleas,
                                              :   Criminal Division, entered on 7/14/09 at
                                              :   No. 23-CR-0002312-2008
SHATAAN ADAMS,                                :
                                              :
                   Appellant                  :   ARGUED: September 10, 2013




                                    DISSENTING OPINION



MR. JUSTICE SAYLOR                                DECIDED: November 20, 2014

       Because I would conclude that the reference to Appellant’s pre-arrest silence

violated Article 1, Section 9 of the Pennsylvania Constitution, and that the error was not

harmless, I respectfully dissent.

       As explained in the companion case of Commonwealth v. Molina, ___ Pa. ___,

___ A.3d ___ (2014) (Opinion Announcing Judgment of the Court), the recent decision

in Salinas v. Texas, ___ U.S. ___, 133 S. Ct. 2174 (2013), established that, where the

defendant does not expressly invoke his privilege against self-incrimination prior to his

arrest, no Fifth-Amendment right attaches.         However – and again, for reasons

expressed in the Molina lead opinion – I would find that Article I, Section 9 of the

Pennsylvania Constitution provides greater protection. Thus, in my view the trial court
erred under that provision in permitting introduction of Appellant’s refusal to speak with

the police. Notably, in this respect, Appellant did not testify at his trial, and hence, his

pre-arrest silence lacked any impeachment value.

       I am also unconvinced by the lead opinion’s reliance on an exception pertaining

to evidence introduced for another purpose, such as explaining the sequence of the

investigation. Indeed, I find such a proposition to be a mere pretext in the context of the

present matter, as it seems readily apparent that, in the circumstances, the investigating

officers would have sought to obtain Appellant’s DNA even if he had affirmatively

professed his innocence. Thus, I see no logical connection between Appellant’s refusal

to speak and the investigating officers’ request for a DNA sample. As such, I disagree

with the lead opinion to the extent it considers Appellant’s refusal to speak as

constituting “foundational evidence demonstrating how the police came to obtain

[Appellant’s] DNA[.]” Opinion Announcing the Judgment of the Court, slip op. at 4, 6. In

this regard, I note that the Commonwealth could just as easily have elicited that the

investigating officers went to Appellant’s residence, identified themselves as a law

enforcement officers, informed Appellant that his name had arisen in the investigation,

and asked Appellant to provide a DNA sample. It seems unlikely the jury would have

wondered why they would seek to obtain such a sample unless Appellant had first

refused to speak with them.1

1
  Because the Commonwealth’s burden is limited to adducing facts sufficient to
demonstrate that the defendant committed all elements of the offense(s) charged, I also
question the relevancy of information tending to explain why the police did what they
did, unless the investigation itself is at issue in the case. See, e.g., Commonwealth v.
Jones, 540 Pa. 442, 451, 658 A.2d 746, 751 (1995) (suggesting that information about
the police investigation was relevant to answer defense counsel’s pointed attack upon
the adequacy of that investigation). I am therefore particularly circumspect about
permitting the Commonwealth to utilize the course-of-the-investigation as a blanket
excuse for introducing prejudicial material that would otherwise be inadmissible.


                               [J-9-2013][M.O. – Baer, J.] - 2
      Because I would find trial error, I would also reach the question of whether the

error was harmless. As set forth in Commonwealth v. Young, 561 Pa. 34, 748 A.2d 166

(1999), an error will be deemed harmless if:       (1) the error did not prejudice the

defendant or the prejudice was de minimus; or (2) the erroneously admitted evidence

was merely cumulative of other untainted evidence which was substantially similar to

the erroneously admitted evidence; or (3) the properly admitted and uncontradicted

evidence of guilt was so overwhelming and the prejudicial effect of the error was so

insignificant by comparison that the error could not have contributed to the verdict. The

Commonwealth bears the burden of proving harmlessness beyond a reasonable doubt.

See id. at 85, 748 A.2d at 193.

      The second element of the test is not at issue in this case, as there is no

contention that the evidence of Appellant’s pre-arrest silence was cumulative of other

proofs. As for the first prong, I believe that the prejudice was not de minimus. To the

contrary, the Commonwealth argued that Appellant’s guilt should be inferred from his

refusal to cooperate with the police in the pre-arrest timeframe. In particular, after

defense counsel suggested various reasons consistent with innocence why Appellant

might not have wished to speak with the police, see Commonwealth v. Adams, 39 A.3d

310, 320 (Pa. Super. 2012) (quoting N.T., May 8, 2009, at 37-39), the Commonwealth

responded:

      But [Appellant] takes the odd step. He wants to – police say hey, look,
      you’ve been implicated in a murder. You want to talk to us? He doesn’t
      remain silent. He chooses to talk. And he doesn’t say you are out of your
      mind. I was at this party. It was a month later. I’m at this party, I was
      having a great time all day. I remember it was Big Tome’s house. He
      didn’t say that. He says I don’t have anything to say to you. He chooses
      not to speak and he chose to say that. He didn’t choose to say, whoa, I
      got an alibi. No prison for me. You’re not catching me on a murder rap.
      He says I have nothing to say to you.


                             [J-9-2013][M.O. – Baer, J.] - 3
Id. at 315 (quoting N.T., May 8, 2009, at 112-13).

      The lead opinion discounts the relevance of this aspect of the trial on grounds

that Appellant himself sought to explain such silence during his summation, see Opinion

Announcing Judgment of the Court, slip op. at 3-4 n.3; see also Adams, 39 A.3d at 320

(suggesting Appellant’s counsel “made a tactical decision” to comment on Appellant’s

pre-arrest silence during his summation); cf. Opinion Announcing the Judgment of the

Court, slip op. at 10-11 (indicating that the reference to Appellant’s silence was

“contextual and brief,” and that “guilt [was] not implied”). It seems to me, however, that

Appellant was left with no real choice but to attempt such an explanation after his

objection to the pre-arrest silence testimony was overruled. Thus, the trial court’s error

led to the need for such commentary, which in turn opened the door to the

Commonwealth’s responsive argument advocating that the jury infer guilt based on

Appellant’s silence – none of which would have occurred if the court had sustained

defense counsel’s objection.

      As for the final prong, the question is not as straightforward as usual, since the

specific question on which we granted review is whether, in applying the harmless error

doctrine, the Superior Court acted contrary to prevailing law by considering evidence of

guilt that had been contradicted by the defense. See Commonwealth v. Adams, 616

Pa. 437, 438, 48 A.3d 1230, 1230-31 (2012) (per curiam). The Commonwealth appears

to agree that the intermediate court departed from precedent, as it urges this Court to

alter the harmless-error standard so that an appellate court may consider proofs that

have been contradicted by the defense. See Brief for Commonwealth at 10, 25-30. In

this regard, Appellant points out that he presented the testimony of an alibi witness that

contradicted all of the testimony from the Commonwealth’s witnesses placing Appellant

at the scene of the crime. Notably, the Superior Court relied exclusively on this latter


                               [J-9-2013][M.O. – Baer, J.] - 4
testimony (as opposed to physical evidence) as constituting the overwhelming evidence

of Appellant’s guilt for purposes of its harmless-error inquiry. See Adams, 39 A.3d at

322-23. While the intermediate court described such testimony as “uncontradicted,” id.

at 322, in fact it was logically contradicted by the alibi testimony.2

         I believe it would be unwise for this Court to alter the harmless-error test in the

manner suggested by the Commonwealth, primarily for the reasons explained in Young.

Most notably, it is not within the province of reviewing courts to determine the

comparative credibility of conflicting evidence. See Young, 561 Pa. at 86, 748 A.2d at

194 (“Where such factfinding functions are implicated, appellate courts are incompetent

to choose which side’s evidence is more persuasive.”); accord Commonwealth v.

Markman, 591 Pa. 249, 279, 916 A.2d 586, 604 (2007).

         In summary, then, I would hold that it was error for the trial court to overrule

Appellant’s objection to the Commonwealth’s reference to his pre-arrest silence, and

that the error was not harmless beyond a reasonable doubt. Accordingly, since the

Court concludes that there was no error and affirms the Superior Court’s order, I

respectfully dissent.




2
    The Superior Court did not mention that an alibi witness had testified.


                                [J-9-2013][M.O. – Baer, J.] - 5
