                                  [J-55-2013]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT

   CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


COMMONWEALTH OF PENNSYLVANIA, :                No. 25 WAP 2012
                              :
                Appellant     :                Appeal from the Order of the Superior
                              :                Court entered November 9, 2011 at No.
                              :                1948 WDA 2007, reversing and vacating
          v.                  :                the Judgment of Sentence of the Court of
                              :                Common Pleas of Allegheny County
                              :                entered March 15, 2007 at CP-02-CR-
MICHAEL MOLINA,               :                0007403-2004 and CP-02-CR-0009547-
                              :                2004 and remanding.
                Appellee      :
                              :                ARGUED: September 10, 2013


              OPINION ANNOUNCING THE JUDGMENT OF THE COURT


MR. JUSTICE BAER                                  DECIDED: NOVEMBER 20, 2014
       We granted review in this case to consider whether a defendant’s right against

self-incrimination, as protected by the federal and Pennsylvania constitutions, is violated

when the prosecution utilizes a non-testifying defendant’s pre-arrest silence as

substantive evidence of guilt. After reviewing this issue of first impression, to which the

United States Supreme Court has not definitively spoken, we agree with the Superior

Court, as well as several of our sister courts, that the use of pre-arrest silence as

substantive evidence of guilt violates a non-testifying defendant’s constitutional rights.

As discussed below, we would affirm the order of the Superior Court remanding for a

new trial. However, given that the status of federal jurisprudence is uncertain, we base

our holding upon the right against self-incrimination set forth in Article I, Section 9 of the

Pennsylvania Constitution.
      In this case, a jury convicted Michael Molina (Defendant) of third degree murder

and related crimes resulting from the savage beating of Melissa Snodgrass (Victim),

apparently as a result of drug debts owed by Victim to Defendant. On September 7,

2003, Victim told her mother, with whom she lived, that she was leaving the house to

run some errands.       When she did not return, Victim’s mother reported her

disappearance to the Missing Persons Unit of the Pittsburgh Police Department. Six

months later, her decomposed remains were found under moldy clothing and other

debris in the basement of a house in the Spring Garden section of Pittsburgh in which

Michael Benintend, one of the prosecution’s primary witnesses, resided during the

relevant time period.

      The issue presented to this Court requires consideration of the Missing Persons

Unit detective’s testimony and the prosecutor’s closing arguments regarding the early

days of the investigation into Victim’s disappearance. Following a lead that Defendant

was holding Victim against her will, the Missing Persons Unit detective assigned to the

case went to Defendant’s house two days after Victim’s disappearance. Pamela Deloe,

a second primary prosecution witness, answered the door and asserted that neither

Victim nor Defendant were at the house. Accordingly, the detective left her card and

asked that Defendant call her. Later that day, Defendant called the detective.

      The detective testified regarding the phone call from Defendant:

             I asked him -- well, before I could even ask him if he was
             aware of [Victim] being missing, he stated to me that there
             were -- that he didn't know where she was. It was out on the
             street that someone said that he was involved in her being
             missing and it wasn't him.


Notes of Testimony (“N.T.”), Dec. 14-20, 2006, at 480. The detective then inquired as

to when Defendant had last seen Victim. He initially responded that he had not seen



                                     [J-55-2013] - 2
her for a year and a half, but then he immediately contradicted his statement, claiming

instead that he had not seen her for three months. Subsequent to this contradiction, the

detective testified that she asked him to come to the police station to speak to her and

he refused:

              A. Yes. After he stated that, I asked him if he could come
              into our office and sit down and talk with me about the case,
              and he refused. He said he refused to come in.

              Q. So this contact that you had with him was over the
              telephone. Is that what you're saying?

              A. Yes, it was over the telephone.


Id. at 481.1 Defense counsel did not object to the reference to Defendant’s refusal to

come into the office. In due course, the prosecution concluded its questioning of the

detective, and defense counsel did not pursue that issue in his cross-examination. Id.

at 482-85.

      During closing argument, the prosecutor accentuated Defendant’s refusal to go

to the police station, and when defense counsel objected, the prosecutor stated before

the jury that it was not improper to comment on Defendant’s pre-arrest silence:

              [Prosecutor:] Look also at what happened in terms of the
              police investigation in this matter. Three days after this
              young lady goes missing, three days after she goes missing,
              detectives are already knocking on the defendant's door
              because of something they heard, maybe he was holding
              this person against their [sic] will, and he calls the police
              back and is very defensive. I mean, before a question's
              even asked, he denies any knowledge or any involvement
              with this young lady. He makes contradictory statements to
1
       We observe that the detective was not questioned as to exactly how the refusal
was phrased or whether it implied an assertion of Defendant’s rights against self-
incrimination.



                                     [J-55-2013] - 3
                 the police about when's the last time that he saw her. First
                 he says, "I saw her a year and a half ago." Then he says, "I
                 saw her three months ago." But most telling, I think, is the
                 fact that the officer invited him. "Well, come on down and
                 talk to us. We want to ask you some more questions about
                 this incident, your knowledge of this young lady," especially
                 because he made these contradictory statements. And what
                 happens? Nothing happens. He refuses to cooperate with
                 the Missing Persons detectives. And why?

                 [Defense Counsel]: Your Honor, I have to object to that.
                 That's improper comment, absolutely improper.

                 [Prosecutor]: Your Honor, pre-arrest silence is not improper
                 comment at all.


Id. at 579-80.

       In a brief sidebar discussion, defense counsel requested that the jury be

instructed to disregard the statement, which the defense viewed as “absolutely

improper;” “If somebody wants to assert their right not to cooperate and talk to the

police, that cannot be commented upon.” Id. at 580. Notably, defense counsel did not

seek a mistrial at this juncture. The prosecution responded “there’s a sharp line drawn

between pre-arrest silence and post-arrest silence.” Id. at 581. The court allowed the

prosecution to proceed without issuing any instructions. Id. The prosecutor further

emphasized the silence following the sidebar, stating, “Factor that in when you're

making an important decision in this case as well.” Id.

       The jury found Defendant not guilty of first-degree murder but convicted him of

third-degree murder and unlawful restraint based substantially on the eyewitness

testimony of Benintend and Deloe, who claimed to have witnessed Defendant brutally

beat Victim to death.2       The trial court sentenced him to twenty to forty years of

2
       The details of their testimony are not relevant to the primary issue before this
Court, but will be discussed in conjunction with the harmless error analysis, infra at 39.



                                        [J-55-2013] - 4
imprisonment.3 Defendant appealed the judgment of sentence, raising four issues in his

Pa.R.A.P. 1925(b) concise statement of issues presented on appeal, including the claim

currently before this Court: whether the trial court erred in not sustaining the objection to

the prosecution’s reference to Defendant’s pre-arrest silence and in not declaring a

mistrial.

       In its Pa.R.A.P. 1925(a) opinion, the trial court considered precedent from this

Court and the United States Supreme Court regarding the right against self-

incrimination, which will be discussed in detail below, and highlighted the distinction

between pre- and post-arrest silence. After reviewing this precedent, the trial court

briefly addressed whether it erred in allowing the prosecutor’s statements during closing

arguments and also considered whether it should have granted a mistrial sua sponte,

because of the statements. The court opined that the prosecutor “did nothing more than

talk about the police investigation and provide information to the jury which would allow

them to assess the credibility of [Defendant’s] ‘testimony.’” Tr. Ct. Op. at 30. The court

used the term “[Defendant’s] ‘testimony’” to describe the detective’s summary of her

phone call with Defendant, as Defendant did not take the witness stand in his own

defense during trial. The trial court also concluded that it did not err in not granting a

mistrial sua sponte, concluding that the detective’s testimony did not prejudice

Defendant. The court attempted to distinguish the facts of this case from those in which

Fifth Amendment protection has been granted, observing that when Defendant spoke to




3
      The trial court granted the defense motion for acquittal on the charge of criminal
conspiracy to commit criminal homicide. On the same date, the court sentenced
Defendant to four to eight years of imprisonment for aggravated assault, simple assault,
and unlawful restraint for conduct related to witness Pam Deloe to which Defendant had
pled guilty.



                                      [J-55-2013] - 5
the detective “the police were unsure if any crime had been committed for which

[Defendant] could have been charged.” Tr. Ct. Op. at 31.

       Defendant appealed to the Superior Court challenging the use of his pre-arrest

silence as substantive evidence of guilt. A three-judge panel initially heard the appeal

and reversed Defendant’s conviction.     Upon the Commonwealth’s motion, the court

granted reargument en banc, and again reversed the trial court, concluding that

Defendant’s state and federal rights against self-incrimination were violated when the

Commonwealth “urge[d] the jury to use a non-testifying defendant’s pre-arrest, pre-

Miranda[4] silence as substantive evidence of his guilt.” Commonwealth v. Molina, 33

A.3d 51, 53 (Pa. Super. 2011) (footnote omitted).

       The Superior Court recognized that Defendant’s argument was limited to

claiming that the prosecutor’s closing argument violated his right against self-

incrimination and did not contend that the detective’s testimony itself was improper.5 It

noted that the detective’s testimony merely provided an account of the extent of the

police investigation of Victim’s disappearance as it related to Defendant and was not

used to imply an admission of guilt at the time of the testimony. In contrast, the court

opined that the prosecutor used the testimony in closing as substantive evidence of

Defendant’s guilt. Id. at 56, 61.

       Prior to determining whether this use violated Defendant’s rights, the Superior

Court conducted a thorough review of the caselaw relating to the right against self-

incrimination. The court identified four distinct time periods during which a defendant

4
       Miranda v. Arizona, 384 U.S. 436 (1966).

5
        The Superior Court also rejected the Commonwealth’s waiver argument
stemming from counsel’s failure to object to the detective’s testimony. Although the
Commonwealth addresses this issue in a footnote, our grant of review does not extend
to that question.



                                     [J-55-2013] - 6
“may either volunteer a statement or remain silent: (1) 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 trial,” which the court considered in reverse order. Id. at 57.

       The court recognized that defendants have an “absolute right to remain silent

and to not present evidence” at trial and that prosecutors cannot comment on a

defendant’s refusal to testify.6 Id.; see generally Griffin v. California, 380 U.S. 609, 615

(1965). Turning to post-Miranda, pre-trial silence, the court acknowledged that this

Court and the High Court have held that the prosecution cannot reference a defendant’s

pre-trial silence following the reading of Miranda warnings, even when the defendant

chooses to testify. Molina, 33 A.3d at 58 (citing Doyle v. Ohio, 426 U.S. 610, 618

(1976)).

       In considering the time period between arrest and the provision of Miranda

warnings, the Superior Court found the caselaw to be more muddled than the first two

time frames. It recognized that the United States Supreme Court in Fletcher v. Weir,

455 U.S. 603 (1982), found no violation of a defendant’s right against self-incrimination

when the prosecution used a defendant’s post-arrest, pre-Miranda warning silence to

impeach a defendant’s testimony at trial, but observed that the High Court has not

considered whether such silence can be used as substantive evidence of guilt when the

defendant does not testify. Moreover, the Superior Court observed that this Court in

Commonwealth v. Turner, 454 A.2d 537, 540 (Pa. 1982), concluded that the

Pennsylvania Constitution protected a defendant’s silence during the post-arrest, pre-


6
       While the Superior Court’s holdings were based primarily on the Fifth
Amendment to the United States Constitution, we recognize that the Fifth Amendment
provides the minimum level of protection of individual rights. Commonwealth v.
Edmunds, 586 A.2d 887, 894 (Pa. 1991). As noted, our holding today is based on the
Pennsylvania Constitution.



                                      [J-55-2013] - 7
Miranda period, even precluding the use of a defendant’s silence to impeach his trial

testimony, and opined that the right against self-incrimination preexists Miranda

warnings.

      Turning to the pre-arrest period relevant to the case at bar, the Superior Court

acknowledged that the United States Supreme Court found in Jenkins v. Anderson, 447

U.S. 231 (1980), that the prosecution did not violate a defendant’s due process rights or

the right against self-incrimination when it referenced the defendant’s pre-arrest silence

while impeaching the defendant’s testimony at trial. The court further noted that this

Court relied upon Jenkins in Commonwealth v. Bolus, 680 A.2d 839 (Pa. 1996), when it

likewise held that impeachment of a defendant’s testimony with reference to pre-arrest

silence does not violate a defendant’s right against self-incrimination under the

Pennsylvania Constitution, but did not speak to whether the silence could be used as

substantive evidence of guilt if the defendant did not testify.     Moreover, the court

recognized that in Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005), we held that

the prosecution could use a defendant’s pre-arrest silence not only to impeach a

defendant’s testimony but as fair response to defense arguments.

      The Superior Court acknowledged that none of the above-referenced cases

addressed a defendant’s pre-arrest silence where the defendant had neither waived his

right to self-incrimination by testifying nor opened the door to the Commonwealth’s use

of his silence as a fair response to defense arguments. Additionally, the court observed

that the federal circuit courts and state courts are divided upon this issue. Molina, 33

A.3d at 62 (collecting cases). The Superior Court concluded that Pennsylvania should

align itself with those jurisdictions which have held that the use of a non-testifying

defendant’s pre-arrest silence as substantive evidence of guilt violates the defendant’s

right against self-incrimination. The Superior Court opined, “If the prosecution were




                                     [J-55-2013] - 8
allowed to suggest guilt at trial from a defendant's silence during the pre-arrest stage,

silence would essentially equate to an admission of guilt.” Id. at 64.

       Accordingly, the Superior Court held that, while the detective’s testimony, in and

of itself, did not violate the right against self-incrimination, the right was violated when

the prosecutor utilized Defendant’s refusal to speak further with the detective as

substantive evidence of his guilt in his closing argument. The court further concluded

that the trial court’s error was not harmless. Rather than constituting the overwhelming

evidence necessary to meet the Commonwealth’s burden of proving harmless error, the

Superior Court found the Commonwealth’s case to be based upon the testimony of

Benintend and Deloe, both of whose credibility was significantly challenged at trial.

Accordingly, the Superior Court reversed the convictions and vacated the judgment of

sentence.

       Then-President    Judge,    now-Justice      Stevens   dissented,   concluding   that

Defendant did not have a protected interest in remaining silent pre-arrest and, even if he

did, the Commonwealth did not use his silence as substantive evidence of guilt in this

case. The dissent emphasized that neither this Court nor the United States Supreme

Court has found a “protected, constitutional interest in one’s decision to remain silent in

the pre-arrest, pre-Miranda setting” or “to remain silent in all of one’s interactions with

police.”   Id. at 71 (Stevens, P.J., dissenting).    Instead, the dissent opined that the

privilege against self-incrimination is “irrelevant” to the decision to remain silent when

the individual is “under no official compulsion to speak.” Id. Even assuming arguendo

that Defendant had a protected interest, the dissent concluded that the Commonwealth

did not use his silence as substantive evidence of guilt because it never “specifically

invite[d] the jury to infer guilt from [Defendant’s] silence.” Id. at 72. Moreover, the

dissent emphasized that the jury is presumed to follow the instructions of the court,




                                      [J-55-2013] - 9
which included a prohibition against viewing the statements of counsel as evidence and

an acknowledgment that Defendant had a right not to testify. Alternatively, the dissent

opined that it would find any error harmless in light of the evidence presented by the

Commonwealth and the de minimis nature of the reference to Defendant’s silence.

       The Commonwealth filed a petition for allowance of appeal, and this Court

granted review to consider whether “the Superior Court err[ed] in ruling that the use by

the Commonwealth of a non-testifying defendant's pre-arrest silence as substantive

evidence of his guilt infringes upon his constitutional right to be free from self-

incrimination?” Commonwealth v. Molina, 51 A.3d 181, 182 (Pa. 2012).

       I. Salinas v. Texas

       In February 2013, we placed the case on hold pending the decision of the United

States Supreme Court in Salinas v. Texas, which, inter alia, raised a claim regarding the

use of pre-arrest silence as substantive evidence. As discussed below, the plurality

decision of the High Court in that case did not resolve the issue, but instead affirmed the

use of the defendant’s silence in a fractured decision. Salinas v. Texas, __ U.S. __, 133

S.Ct. 2174 (2013).     Prior to hearing argument, we allowed the parties to submit

supplemental briefing addressing Salinas.

       Salinas involved a defendant who was interviewed by police regarding a double

murder in Houston. At the time of the interview, Salinas had not been arrested nor

provided Miranda warnings.        Initially, Salinas answered the officer’s questions.

However, when the officers inquired whether the shotgun shell casings recovered from

the scene would match Salinas’s gun, he “[l]ooked down at the floor, shuffled his feet,

bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.” Id. at 2178

(brackets in original). “After a few moments of silence, the officer asked additional

questions, which petitioner answered.” Id.




                                     [J-55-2013] - 10
       While the High Court had accepted review in Salinas to resolve the split between

the lower courts regarding the applicability of the Fifth Amendment to the use of a non-

testifying defendant’s precustodial silence as substantive evidence of guilt, it eventually

divided on how to resolve the case. Three justices in the lead opinion did not speak to

the use of pre-arrest silence as substantive evidence and instead dismissed Salina’s

claims because “he did not expressly invoke the privilege against self-incrimination in

response to the officer’s question.” Id. at 2178. Two concurring justices did not address

the issue of express invocation, but opined that “Salinas' claim would fail even if he had

invoked the privilege because the prosecutor's comments regarding his precustodial

silence did not compel him to give self-incriminating testimony.” Id. at 2184 (Thomas,

J., concurring). Finally, four dissenting justices determined that no ritualistic language

was needed to invoke the right against self-incrimination, which was implied by the

circumstances, and concluded that Salina’s right was violated.         Id. at 2189-2191.

Accordingly, as three justices opined that Salinas did not properly invoke his privilege

and two justices concluded that the privilege never applies to pre-arrest silence, five

justices held that Salinas should not obtain relief. Given the absence of a majority on

any rationale, the splintered decision, however, fails to provide guidance as to whether

pre-arrest silence is ever protected under the Fifth Amendment if sufficiently invoked or

what constitutes sufficient invocation of the right.

       A search of our caselaw interpreting both the state and federal protections does

not reveal any prior insistence by this Court that there be an express invocation of the

right against self-incrimination.    Instead, our precedent is more aligned with the

dissenting four justices in Salinas, who concluded that the no ritualistic language is

needed but rather found that invocation of the right may be apparent from the

circumstances surrounding the defendant’s statement. See, e.g., Commonwealth v.




                                      [J-55-2013] - 11
Chmiel, 889 A.2d 501, 529-31 (Pa. 2005) (viewing statement “I don’t think I better talk

about that” as invocation of right to remain silent after initial waiver of Miranda rights).

       As applied to this case, we determine that Defendant’s actions in affirmatively

and definitively refusing to come to the police station and ending the phone call were

sufficient to invoke his right against self-incrimination and are distinguishable from

Salinas’s temporary muteness sandwiched between voluntary verbal responses to

police questioning.     Defendant’s invocation is clarified upon consideration of the

circumstances of the case.        Regardless of whether Defendant had been officially

designated a suspect, the detective’s testimony demonstrated that Defendant and the

detective were aware during the phone call that “[i]t was out on the street that someone

said that [Defendant] was involved in her being missing.” N.T., Dec. 14-20, 2006, at

480. Indeed, the prosecutor’s closing argument emphasized the detectives’ suspicions,

noting that three days after Victim’s disappearance, they were “knocking on the

defendant's door because of something they heard, maybe he was holding this person

against their [sic] will.” Id. at 579. Moreover, it appears that the detective’s suspicions

were further raised when Defendant contradicted himself in regard to when he had last

seen Victim, prompting her to request that he come to the station. Thus, at the least,

both parties to the phone call were aware that he was suspected in the disappearance

of Victim, even though the detective was unaware that the case involved a murder. We

conclude that refusing to come to the police station to speak further with a detective and

ending the phone call, in light of the circumstances of the case, constitutes an

invocation of his right against self-incrimination, even absent a talismanic invocation of

the constitutional provision.

       II. Constitutionality of the Use of Pre-Arrest Silence as Substantive Evidence




                                       [J-55-2013] - 12
      Turning to the issue upon which we granted review, the Commonwealth

maintains that the Superior Court erred in concluding that the prosecutor’s reference to

Defendant’s pre-arrest silence violated his right against self-incrimination.       The

Commonwealth claims that this Court has drawn a line of significance between pre- and

post-arrest silence, and that the “privilege against self-incrimination” does not extend

backward from the post-arrest period to cover the pre-arrest timeframe scrutinized

herein. Commonwealth’s Brief (“Com. Brief”) at 17. In support, the Commonwealth

recounts the development of case law in the United States Supreme Court and this

Court, noting that neither court has prohibited the use of a defendant’s pre-arrest

silence as substantive evidence of guilt. The Commonwealth emphasizes that the High

Court, in Fletcher, 455 U.S. 603, held that the Fifth Amendment protection does not

apply to post-arrest, pre-Miranda warning silence if the silence is used to impeach the

defendant’s testimony at trial.   The Commonwealth observes that the High Court

distinguished Fletcher from Doyle, 426 U.S. 610, where the Court had previously

concluded that the defendant’s due process rights would be violated by the use of

defendant’s silence after he had been assured of his right to remain silent through the

provision of Miranda warnings.

      Addressing our precedent, the Commonwealth acknowledges that this Court in

Turner, 454 A.2d 537, rejected the United States Supreme Court’s analysis in Fletcher

and instead found that the Pennsylvania Constitution prohibited adverse comment upon

a defendant’s silence in post-arrest, pre-Miranda cases, where the Commonwealth

attempts to impeach a defendant’s testimony at trial. It emphasizes, however, that this

Court refused to extend that protection in Bolus, 680 A.2d 839, to pre-arrest silence in

impeachment cases, instead finding persuasive the decision in Jenkins, 447 U.S. 231

(concluding no due process or Fifth Amendment violation when using defendant’s pre-




                                    [J-55-2013] - 13
arrest silence as impeachment evidence). The Commonwealth contends that the sole

distinguishing factor between our decisions in Turner and Bolus is the timing of the

silence in relation to the arrest.

       Noting that Bolus did not provide any rationale for the distinction between pre-

and post-arrest, the Commonwealth ventures that the distinction is based upon the

proposition that a defendant in custody is compelled to give evidence against himself.

The Commonwealth emphasizes that the United States Supreme Court relied heavily

on the issue of compulsion in Miranda. In contrast, the Commonwealth argues that

defendants in the pre-arrest setting have not been removed from their normal

surroundings and are not in custody such that one is “not under any compulsion to

incriminate himself.” Com. Brief at 23. The Commonwealth relies upon Justice John

Paul Stevens’ concurring opinion in Jenkins where he stated, “the privilege against

compulsory self-incrimination is simply irrelevant to a citizen’s decision to remain silent

when he is under no official compulsion to speak.” Id. at 24 (quoting Jenkins, 447 U.S.

at 241 (Stevens, J., concurring)). Applying this language to the facts of this case, the

Commonwealth contends:

              Given that [Defendant] was not only not under arrest when
              speaking with [the detective] but also not surrounded by
              antagonistic forces - rather, he was in his own home and
              talking to the officer on the phone during a call that he
              voluntarily made - there would seem to be no question that
              he was not in any way compelled to incriminate himself at
              that point.




                                     [J-55-2013] - 14
Com. Brief at 25.      Accordingly, the Commonwealth urges the Court to align with

jurisdictions which have found the Fifth Amendment does not prohibit the use of pre-

arrest silence as substantive evidence.7 8

       In response, Defendant urges this Court to affirm the Superior Court and follow

those jurisdictions that have found that the use of a non-testifying defendant’s pre-arrest

silence as substantive evidence of guilt is violative of the right against self-incrimination

under both the federal and state constitutions.9 Defendant rejects the Commonwealth’s

reliance on Miranda to suggest that the Fifth Amendment does not provide protection

prior to arrest. Instead, the Defendant contends that the concern with the post-arrest

period in Miranda was based on the need for all defendants to be aware of their rights,

not to suggest that the rights do not exist prior to arrest.



7
       In support, the Commonwealth relies upon the following decisions of our sister
courts: United States v. Oplinger, 150 F.3d 1061 (9th Cir. 1998), overruled on other
grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010); United States v.
Zanabria, 74 F.3d 590 (5th Cir. 1996); State v. Lopez, 279 P.3d 640, 645 (Ariz. Ct. App.
2012); State v. Leecan, 504 A.2d 480 (Conn. 1986); People v. Schollaert, 486 N.W.2d
312 (Mich. App. 1992); State v. Borg, 806 N.W.2d 535 (Minn. 2011); State v. Helgeson,
303 N.W.2d 342 (N.D. 1981); State v. LaCourse, 716 A.2d 14 (Vt. 1998).

8
      The Pennsylvania District Attorneys Association filed an amicus curiae brief in
support of the Commonwealth.

9
       Defendant relies upon the following decisions of our sister courts: Combs v.
Coyle, 205 F.3d 269 (6th Cir. 2000); United States v. Burson, 952 F.2d 1196 (10th Cir.
1991); Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989); United States ex rel. Savory v.
Lane, 832 F.2d 1011 (7th Cir. 1987); People v. Rogers, 68 P.3d 486 (Colo. App. 2002);
People v. Welsh, 58 P.3d 1065 (Colo. App. 2002); State v. Moore, 965 P.2d 174 (Idaho
1998); Commonwealth v. Thompson, 725 N.E.2d 556 (Mass. 2000); State v. Rowland,
452 N.W.2d 758 (Neb. 1990); State v. Cassavaugh, 12 A.3d 1277 (N.H. 2010); State v.
Leach, 807 N.E.2d 335 (Ohio 2004); State v. Palmer, 860 P.2d 339, 349 (Utah Ct. App.
1993); State v. Easter, 922 P.2d 1285 (Wash. 1996); State v. Fencl, 325 N.W.2d 703
(Wis. 1982); Tortolito v. State, 901 P.2d 387 (Wyo. 1995).



                                       [J-55-2013] - 15
       He avers that if the prosecution is allowed to argue pre-arrest silence as

evidence of guilt, then:

              [A] person being questioned by the police has no right to
              stop answering questions posed by the police and must tell
              the truth.       Thus, under this new law posed by the
              Commonwealth, persons will be required to confess unless
              they are innocent because the failure to talk and/or the
              failure to tell the truth will result in an instruction at trial to the
              jury that the defendant's response to the police questioning
              should be considered consciousness of guilt.

Defendant's Brief at 18.
       Moreover, Defendant contends that to provide protection of the right against self-

incrimination only upon arrest places the right inappropriately in the hands of the police.

According to the Defendant, the police will interview a suspect prior to arrest in order to

obtain either a statement or silence, knowing that the individual’s pre-arrest silence can

be used as evidence of guilt at trial, even though the same silence could not be used if it

occurred the moment after arrest. Accordingly, Defendant urges this Court to affirm the

Superior Court’s decision that the prosecutor’s use of his pre-arrest silence as

substantive evidence violated his right against self-incrimination.

       Accordingly, we consider whether the trial court committed reversible error in

allowing the prosecutor, over defense counsel’s objection, to use a non-testifying

defendant’s pre-arrest silence as substantive evidence of guilt because such use

violated the defendant’s constitutional right to be protected from self-incrimination. “As

this is an issue involving a constitutional right, it is a question of law; thus, our standard

of review is de novo, and our scope of review is plenary.” Commonwealth v. Baldwin,

58 A.3d 754, 762 (Pa. 2012).

       Initially, we recognize that the constitutionality of the use of pre-arrest silence as

substantive evidence has split the federal circuit courts and state courts, engendering


                                        [J-55-2013] - 16
numerous fractured decisions across the United States.          While the United States

Supreme Court accepted review of Salinas to resolve the issue, it appears to have

created a new question regarding the sufficiency of invocation of the right under the

Fifth Amendment without resolving whether the Fifth Amendment applies to the use of

pre-arrest silence as substantive evidence of guilt, even if properly invoked.

       When the federal constitutional jurisprudence has been unclear or in a state of

flux, “this Court has not hesitated to render its independent judgment as a matter of

distinct and enforceable Pennsylvania constitutional law.” Pap’s A.M. v. City of Erie,

812 A.2d 591, 607 (Pa. 2002) (addressing freedom of expression) (citing

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992) (extending double jeopardy

protection under Pennsylvania Constitution) and Ins. Adjustment Bureau v. Ins. Comm'r,

542 A.2d 1317, 1324 (Pa. 1988) (addressing commercial speech)). Similarly, we have

recognized that decisions based on Pennsylvania’s Declaration of Rights “ensure[s]

future consistency in state constitutional interpretation, since federal law is always

subject to change.”    Commonwealth v. Lewis, 598 A.2d 975, 979 n.8 (Pa. 1991)

(holding that defendant’s rights under Article I, Section 9 were violated by the failure to

provide a no-adverse inference instruction).

       When considering the rights provided by the Pennsylvania Constitution, we are

ever cognizant that the federal constitution provides the minimum levels of protection

applicable to the analogous state constitutional provision. Commonwealth v. Edmunds,

586 A.2d 887, 894 (Pa. 1991).        “[E]ach state has the power to provide broader

standards, and go beyond the minimum floor which is established by the federal

Constitution.” Id. Accordingly, we are not bound by the decisions of the United States

Supreme Court on similar constitutional provisions but instead may consider the




                                     [J-55-2013] - 17
opinions for their persuasive value. Pap's A.M., 812 A.2d at 601; Edmunds, 586 A.2d at

894-5.

         As we stated in Pap’s A.M., we conduct Pennsylvania constitutional analysis

consistently with the model set forth in Edmunds. Pap's A.M., 812 A.2d at 603. “Under

Edmunds, the Court should consider: the text of the relevant Pennsylvania

Constitutional     provision;   its   history,   including   Pennsylvania   case   law;   policy

considerations, including unique issues of state and local concern and the impact on

Pennsylvania jurisprudence; and relevant cases, if any, from other jurisdictions.” Id.

         A. Text

         In considering the text of the provisions, we first look to their placement in the

larger charter. The structure of the Pennsylvania Constitution highlights the primacy of

Pennsylvania’s protection of individual rights: “The very first Article of the Pennsylvania

Constitution consists of the Pennsylvania Declaration of Rights, and the first section of

that Article affirms, among other things, that all citizens ‘have certain inherent and

indefeasible rights.’” Pap's A.M., 812 A.2d at 603.10 Moreover, our charter further

protects the rights detailed in Article I in Section 25, providing, “To guard against

transgressions of the high powers which we have delegated, we declare that everything

in this article is excepted out of the general powers of government and shall forever

remain inviolate.” PA. CONST. art. I, § 25. “Unlike the Bill of Rights of the United States

Constitution which emerged as a later addendum in 1791, the Declaration of Rights in

the Pennsylvania Constitution was an organic part of the state’s original constitution of




10
        Although originally contained in Article I, the Declaration of Rights were moved to
Article IX, in the Constitution of 1790 and then returned to Article I in 1874. See Ken
Gormley, The Pennsylvania Constitution: A Treatise on Rights and Liberties § 12.1, at
327, Appendix I, at 877-78, 880-81, 887-89 (2004).



                                         [J-55-2013] - 18
1776., and appeared (not coincidentally) first in that document.” Edmunds, 586 A.2d at

896.

       One of the rights protected in Article I is Section 9’s right against self-

incrimination. As is true of most of the provisions of the Pennsylvania Declaration of

Rights, Section 9 was adopted in 1776 and served as a model for the protections

provided by the Fifth Amendment of the United States Constitution as it predated the

federal provision by fifteen years. See generally id. at 896 (discussing the historical

background of the Pennsylvania Declaration of Rights). Originally, the provision was

worded to provide that no “man” can “be compelled to give evidence against himself,”

with the current wording adopted in 1838. See Commonwealth v. Swinehart, 664 A.2d

957, 961 (Pa. 1995). Section 9 currently dictates, “In all criminal prosecutions, the

accused . . . cannot be compelled to give evidence against himself.”11 PA. CONST. art. 1,

§ 9.   This language is very similar to the Fifth Amendment, which provides: “[n]o



11
       Article I, Section 9 provides in full:

              Rights of accused in criminal prosecutions

             In all criminal prosecutions the accused hath a right to be
             heard by himself and his counsel, to demand the nature and
             cause of the accusation against him, to be confronted with
             the witnesses against him, to have compulsory process for
             obtaining witnesses in his favor, and, in prosecutions by
             indictment or information, a speedy public trial by an
             impartial jury of the vicinage; he cannot be compelled to give
             evidence against himself, nor can he be deprived of his life,
             liberty or property, unless by the judgment of his peers or the
             law of the land. The use of a suppressed voluntary
             admission or voluntary confession to impeach the credibility
             of a person may be permitted and shall not be construed as
             compelling a person to give evidence against himself.
PA. CONST. art. 1, § 9.



                                       [J-55-2013] - 19
person . . . shall be compelled in any criminal case to be a witness against himself.”12

U.S. CONST. amend. V. While we recognize that “no man” in the federal provision is

arguably broader than “the accused” in Pennsylvania’s section, we also observe that

Pennsylvania’s protection against being forced “to give evidence” is potentially more

extensive than the federal protection against being “a witness against himself.” Given

the substantial similarity of the provisions, we do not find the textual differences

dispositive. Moreover, “we are not bound to interpret the two provisions as if they were

mirror images, even where the text is similar or identical.” Edmunds, 586 A.2d at 895-

96. Indeed, we have previously found Section 9 to provide greater protection than the

Fifth Amendment, despite the similar language. See, e.g., Commonwealth v. Triplett,

341 A.2d 62 (Pa. 1975) (plurality) (holding, in the lead opinion as described below, that

under the Pennsylvania Constitution an accused could not be impeached with his prior

voluntary, but suppressed, statements; abrogated by subsequent amendment).

      Other textual differences exist between the federal and state provisions which do

not directly relate to the issue currently before this Court.     For example, the final

sentence of Section 9, which is not present in the Fifth Amendment, was added in 1984

12
      In full, the Fifth Amendment provides:

             No person shall be held to answer for a capital, or otherwise
             infamous crime, unless on a presentment or indictment of a
             Grand Jury, except in cases arising in the land or naval
             forces, or in the Militia, when in actual service in time of War
             or public danger; nor shall any person be subject for the
             same offence to be twice put in jeopardy of life or limb; nor
             shall be compelled in any criminal case to be a witness
             against himself, nor be deprived of life, liberty, or property,
             without due process of law; nor shall private property be
             taken for public use, without just compensation.

U.S. CONST. amend. V.



                                    [J-55-2013] - 20
in response to this Court’s decision in Triplett. See Swinehart, 664 A.2d at 961. The

amendment brought our jurisprudence into conformity with federal law on the limited

issue of the use of prior suppressed statements. In Swinehart, 664 A.2d at 962, we

stated that the amendment was “intended to ensure that the protection against self-

incrimination under Article I, Section 9 would be interpreted similarly to the Fifth

Amendment.” Respectfully, we believe it overstates the amendment’s intent to read it

as applicable to any matter relating to one’s right against self-incrimination, given that

the amended language solely addresses the relatively narrow issue of the use of

suppressed voluntary statements and does not extend more broadly to other questions

related to the right against self-incrimination. Indeed, even in Swinehart, we concluded

that the amended language did not relate to Swinehart’s case regarding the extent of

immunity and, instead, looked for guidance in the prior decisions of this Court, ultimately

concluding that Pennsylvania’s provision was broader than the federal provision, as

discussed below.

      The Pennsylvania Constitution also historically contained two exceptions to the

right against self-incrimination not present in the federal charter. In 1874, Article III,

Section 32 (repealed in 1967) and Article VIII, Section 10 (now renumbered Article VII,

Section 8) were added to allow for compelled testimony regarding cases involving

bribery or corrupt solicitations and contested elections, respectively. See Ken Gormley,

The Pennsylvania Constitution: A Treatise on Rights and Liberties, § 12.6(c) at 387

n.318 (2004).    The provisions stated that testimony could be compelled but “such

testimony shall not afterwards be used against [the witness] in any judicial proceedings

except for perjury in giving such testimony.” PA. CONST. art. 7, § 8; see generally

Gormley, The Pennsylvania Constitution, § 12.6(c), at 387-88; Leonard Sosnov,

Criminal Procedure Rights Under the Pennsylvania Constitution: examining the Present




                                     [J-55-2013] - 21
and Exploring the Future, 3 Widener J. Pub. L. 217, 306 (1993). While these provisions

provide specific exceptions for when testimony can be compelled, they do not guide our

analysis of whether the protections of Section 9 apply to pre-arrest silence.

       Given that the textual distinctions between Section 9 and the Fifth Amendment

do not definitively speak to the issue before the Court, we find more persuasive our

jurisprudence interpreting the provisions, which also incorporates underlying policy

considerations.

       B. History and Policy Considerations

       Our precedent regarding the right against self-incrimination has generally

developed in parallel or following the dictates of federal precedent interpreting the Fifth

Amendment, particularly after the United States Supreme Court’s 1965 decision in

Griffin, 380 U.S. at 615 (holding that “the Fifth Amendment, in its direct application to

the Federal Government and in its bearing on the States by reason of the Fourteenth

Amendment, forbids either comment by the prosecution on the accused's silence or

instructions by the court that such silence is evidence of guilt.”). On most occasions, we

have not considered whether differences exist between the federal and state provisions.

       We recognize, however, that this Court has taken inconsistent stances in

determining whether the right against self-incrimination under Section 9 exceeds the

protections of the Fifth Amendment. At times, we have “stated that, except for the

protection afforded by our Commonwealth's Constitution to reputation, the provision in

Article I, § 9 which grants a privilege against self-incrimination tracks the protection

afforded under the Fifth Amendment.” Commonwealth v. Arroyo, 723 A.2d 162, 166

(Pa. 1999).13 Similarly, we opined generally that we should not extend rights under our

13
       While not relevant to the issues before this Court, Pennsylvania’s constitution,
unlike its federal counterpart, includes reputation as an “inherent and indefeasible” right:

(continuedS)

                                     [J-55-2013] - 22
Pennsylvania Constitution beyond those in the federal charter absent “a compelling

reason to do so.” Commonwealth v. Gray, 503 A.2d 921, 926 (Pa. 1985). In most of

the cases where we have interpreted the rights as coextensive, however, we have

indicated that the defendant failed to provide a convincing argument in favor of stronger

protection under the Pennsylvania Constitution.        See Arroyo, 723 A.2d at 167;

Commonwealth v. Morley, 681 A.2d 1254, 1258 (Pa. 1996).

       On several occasions, our Court has specifically concluded that the protections

of Section 9 exceed those in its federal counterpart.      Swinehart, 664 A.2d at 969

(addressing immunity and opining that “Article I, Section 9 is, in fact, more expansive

than the Fifth Amendment” but not so much as to require greater protection than that

provided by the relevant statute); Turner, 454 A.2d 537 (rejecting Fletcher v. Weir, 455

U.S. 603, and holding that reference to post-arrest, pre-Miranda silence violates Article

I, Section 9); Triplett, 341 A.2d 62 (plurality) (diverging, under the lead opinion, from

Harris v. New York, 401 U.S. 222 (1971), and concluding that use of suppressed but

voluntary statements to impeach a defendant’s testimony violated Article I, Section 9,

later abrogated by constitutional amendment).          Cf. Edmunds, 586 A.2d at 898

(observing in regard to Article I, Section 8 of the Pennsylvania Constitution that from

1961-1973, this Court “tended to parallel the cases interpreting the 4th Amendment,” but

“beginning in 1973, our case-law began to reflect a clear divergence from federal

precedent.”).    Given the arguably contradictory holdings regarding the interaction

(Scontinued)
            All men are born equally free and independent, and have
            certain inherent and indefeasible rights, among which are
            those of enjoying and defending life and liberty, of acquiring,
            possessing and protecting property and reputation, and of
            pursuing their own happiness..

PA. CONST. art. I, § 1.



                                    [J-55-2013] - 23
between Section 9 and the Fifth Amendment, we must consider our precedent

regarding the right against self-incrimination more broadly to determine whether Section

9 protects a defendant’s decision to remain silent in the pre-arrest context.

       Our jurisprudence regarding references to a defendant’s silence is severable into

identifiable categories. We initially consider precedent addressing the right against self-

incrimination generally. Next, we review those cases where reference to silence is

permissible to impeach a defendant who has waived his right by testifying at trial or

where counsel has raised an argument necessitating the prosecution’s fair response.

Additionally, we recognize that courts have created an exception to this general

impeachment and fair response rule when the provision of Miranda warnings induces a

defendant’s silence, such that reference to the silence would violate Fourteenth

Amendment due process rights, even if it would not violate the Fifth Amendment right

against self-incrimination.   Finally, in turning to the specific question of pre-arrest

silence, we discuss this Court’s decision in Bolus, which addressed pre-arrest silence in

the impeachment context, but specifically left open the question currently before the

Court regarding the use of silence as substantive evidence of guilt.

       1. General Right Against Self-Incrimination

       Similar to the Fifth Amendment, Article I Section 9 dictates that the accused

“cannot be compelled to give evidence against himself.” PA. CONST. art. I, § 9. The

United States Supreme Court has broadly defined the reach of this protection, given its

importance in the structure of our judicial system:

              The privilege reflects a complex of our fundamental values
              and aspirations, and marks an important advance in the
              development of our liberty. It can be asserted in any
              proceeding, civil or criminal, administrative or judicial,
              investigatory or adjudicatory; and it protects against any
              disclosures which the witness reasonably believes could be



                                     [J-55-2013] - 24
             used in a criminal prosecution or could lead to other
             evidence that might be so used.
Kastigar v. U.S., 406 U.S. 441, 444-45 (1972) (footnotes omitted).

      We have acknowledged, however, the “inherent conflict” between the right

against self-incrimination and our system’s reliance on compelled testimony. Swinehart,

664 A.2d at 967. While we have credited the “public[’s] right to every man’s evidence,”

our courts have emphasized the need for the protection against self-incrimination to

avoid the “cruel trilemma of self-accusation, perjury or contempt” that faced those

brought before tribunals such as the Star Chamber in England.14 Id. (internal citation

omitted). Through forced confession, individuals had to choose whether to incriminate

themselves, perjure themselves, or be held in contempt if they remained silent. See Id.;

see generally Andrew Bentz, Note, The Original Public Meaning of the Fifth Amendment

and Pre-Miranda Silence, 98 Va. L. Rev. 897, 909-912 (2012). As Dean Gormley has

observed, “the prohibition against conviction by a process of inquisition is the crown

jewel” of all rights afforded the accused under federal and state constitutions. Gormley,




14
      The Star Chamber was an English court of law existing from the Fifteenth to
Seventeenth Centuries. The United States Supreme Court described its relevance to
the enactment of the Fifth Amendment’s right against self-incrimination:

             Historically, the privilege was intended to prevent the 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.

Pennsylvania v. Muniz, 496 U.S. 582, 595-596 (1990) (quoting Doe v. U.S., 487 U.S.
210, 212 (1988)).



                                    [J-55-2013] - 25
The Pennsylvania Constitution, § 12.6(a), at 386 (internal quotations, citations and

footnote omitted).

      As the United States Supreme Court did in Griffin, this Court has viewed the right

against self-incrimination as protecting silence as well as overt self-incrimination.15 In

Dravecz, Justice Musmanno explained how silence and self-incrimination are tied:

                      Under common law and, of course, this was doubly
             true in medieval continental Europe, forced confessions
             were as common as they were cruel and inhuman. The
             framers of our Bill of Rights were too aware of the excesses
             possible in all governments, even a representative
             government, to permit the possibility that any person under
             the protection of the United States flag could be forced to
             admit to having committed a crime. In order to make the
             protection hazard-proof, the framers went beyond coercion
             of confessions. They used the all-embracive language that
             no one could be compelled ‘to be a witness against himself’.
             What did the Trial Court in this case do but compel Dravecz
             to be a witness against himself? Dravecz had said nothing,
             yet because something was read to him, to which he made
             no comment, the prosecution insisted that Dravecz admitted
             guilt. If Dravecz could not be made a self-accusing witness
             by coerced answers, he should not be made a witness
             against himself by unspoken assumed answers.


Commonwealth v. Dravecz, 227 A.2d 904, 907 (Pa. 1967) (plurality). Our Court took

the occasion of the Dravecz case to further explore the ambiguity inherent in silence, as

noted above, recognizing that not all those accused of a crime immediately declare their

innocence, but some may be made speechless by the accusation. Id. Other courts, as

did the Superior Court below, have similarly observed that innocent individuals accused



15
       As discussed infra at 33 we recognize that some justices of both the United
States Supreme Court and this Court view the Fifth Amendment as limited to protecting
only compelled speech, rather than silence.



                                    [J-55-2013] - 26
of a crime may also remain silent for fear that their explanation will not be believed or to

protect another. Molina, 33 A.3d 65-66.

       Since Griffin, the protection of a defendant’s silence has become imbedded in

our jurisprudence. See, e.g., Com. v. Wright, 961 A.2d 119, 143 (Pa. 2008) (“[T]his

Court vigilantly protects the right to remain silent and recognizes references to an

accused's exercise of this right may jeopardize the presumption of innocence in the

jury's mind.”); cf. Edmunds, 586 A.2d at 900 (discussing New Jersey Supreme Court’s

recognition of a right that is accepted and then becomes imbedded in the state’s

jurisprudence under a state constitution after twenty-five years of consistent

application). Moreover, this Court additionally opined nearly forty years ago that “[t]he

prohibition of any reference to an accused’s silence reflects the court’s desire that an

accused not be penalized for exercising his constitutional rights.” Commonwealth v.

Greco, 350 A.2d 826, 828 (Pa. 1976). Our jurists have long recognized that “most

laymen view an assertion of the Fifth Amendment privilege as a badge of guilt,” noting

that the privilege “would be reduced to a hollow mockery if its exercise could be taken

as equivalent either to a confession of guilt or a conclusive presumption of perjury.”

Commonwealth v. Haideman, 296 A.2d 765, 767 (Pa. 1972) (quoting Walker v. United

States, 404 F.2d 900, 903 (5th Cir. 1968) and Slochower v. Board of Higher Ed. of N.Y.,

350 U.S. 551, 557 (1956)); see also Commonwealth v. Singletary, 387 A.2d 656, 657

(Pa. 1978) (finding that the Commonwealth violated the defendant’s Fifth Amendment

right and opining that “where one is accused of a criminal offense and remains silent, a

lay person could and probably would consider this silence to be an unnatural reaction

unless the accused was in fact guilty”). Accordingly, this Court has long protected a

defendant’s silence as part of the right against self-incrimination.

       2. Permitted Use of Silence as Impeachment Evidence or Fair Response




                                      [J-55-2013] - 27
       Under both state and federal precedent, the analysis changes dramatically once

a defendant decides to testify because he has waived his right against self-

incrimination: “His waiver is not partial; having once cast aside the cloak of immunity,

he may not resume it at will, whenever cross-examination may be inconvenient or

embarrassing.” Raffel v. U.S., 271 U.S. 494, 497 (1926). As the Supreme Court noted

in Jenkins, it would undermine the fundamental truth-seeking purpose of our adversary

system to prevent the prosecution from questioning the validity of the defendant’s

testimony in an attempt to uncover fabricated defenses: “Once a defendant decides to

testify, the interests of the other party and regard for the function of courts of justice to

ascertain the truth become relevant, and prevail in the balance of considerations

determining the scope and limits of the privilege against self-incrimination.” Jenkins,

447 U.S. at 238 (internal quotation marks, alternation, and citation omitted).

Accordingly, the prosecution may impeach the testifying defendant with his prior

statements, actions, or silence, regardless of whether the statements, actions, or

silence occurred prior to or after the reading of Miranda rights16 or the defendant’s

arrest, if the defendant waives his right against self-incrimination by testifying.

       In addition to impeachment, the Commonwealth may utilize a defendant’s

silence, including pre-arrest silence, as fair response to a defendant’s argument at trial.

Specifically, in DiNicola, we allowed reference to a defendant’s refusal to speak to a

trooper as a fair response to defense counsel’s questioning of the adequacy of the

trooper’s investigation. 866 A.2d at 335-36. Thus, while we hold the right to remain

silent sacrosanct, we also protect our adversarial system by allowing cross-examination

of a testifying defendant and fair response to the defense’s arguments.

16
       Although a testifying defendant’s right is not infringed by reference to his prior
silence, given his waiver, a violation of his due process rights may occur because his
silence was induced by Miranda warnings, see infra at 30.



                                      [J-55-2013] - 28
       In a related issue, we recognize that three justices of this Court diverged from

federal precedent involving the right against self-incrimination in an impeachment

scenario. Triplett, 341 A.2d 62 (plurality). The lead opinion rejected the United States

Supreme Court’s decision in Harris v. New York, 401 U.S. 222, in which the court held

that constitutionally infirm statements could be used to impeach a defendant’s trial

testimony if the statements were “obtained under circumstances that would not detract

from the trustworthiness of the statement[s].” Triplett, 341 A.2d at 64. The justices

opined under Article I, Section 9 that any statement deemed inadmissible by a

suppression court could not be utilized to impeach the defendant’s testimony at trial. Id.

They observed, that to do otherwise, would force a Hobson’s choice on the defendant

faced with deciding whether to decline the right to testify or risk impeachment with the

suppressed statements.      Id.   Later, however, Section 9 was amended to provide

specifically that “The use of a suppressed voluntary admission or voluntary confession

to impeach the credibility of a person may be permitted and shall not be construed as

compelling a person to give evidence against himself.” PA. CONST. art. 1, § 9. This

amendment protects our adversary system by allowing the Commonwealth to challenge

the defendant’s testimony at trial with prior inconsistent statements.        We observe,

however, that this amendment does not impact the question before this Court regarding

the significance of the right against self-incrimination in a case not involving

impeachment with prior inconsistent statements. Moreover, despite the amendment,

the holding in Triplett indicates the lead opinion’s view of Article I, Section 9 as broader

than the Fifth Amendment.

       3. Due Process Exception to Use of Silence as Impeachment in Post-Miranda

Warning Cases




                                     [J-55-2013] - 29
       Although the case at bar involves pre-arrest silence, and thus does not concern

the provision of Miranda warnings and resulting due process concerns, we consider the

post-Miranda warning cases to understand why courts found the timing of a defendant’s

silence relevant to determining whether reference to that silence is permissible and to

examine another area of jurisprudence where this Court has imposed more stringent

protection of the right against self-incrimination.

       Although, as discussed above, a defendant’s testimony may generally be

impeached with prior silence, courts have concluded that a prosecutor may not use a

defendant’s silence after the provision of Miranda warnings. In Doyle, 426 U.S. 610, the

Supreme Court held that the prosecution violated a defendant’s due process rights

when it used the defendant’s pre-trial silence to impeach the defendant’s testimony after

the defendant had been assured of his right to remain silent through Miranda warnings

and potentially induced to remain silent.             The court additionally recognized the

diminished probative value of silence, post-Miranda warnings. “Silence in the wake of

these warnings may be nothing more than the arrestee's exercise of these Miranda

rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State

is required to advise the person arrested.” Id. at 617.

       The High Court, in a per curiam opinion in Fletcher, 455 U.S. 603, rejected an

attempt to extend the due process protection of Doyle to the post-arrest, pre-Miranda

warning period.     Instead, the Court allowed prosecutors to impeach a testifying

defendant regarding his post-arrest, pre-Miranda warning silence, given that the

defendant had not been induced to remain silent by the warnings. The Court, therefore,

found no due process violation.

       Mere months after Fletcher, this Court diverged from the High Court’s view of the

use of silence for impeachment purposes in Turner, 454 A.2d 537. While Doyle and




                                      [J-55-2013] - 30
Fletcher addressed due process concerns, this Court utilized Pennsylvania’s protection

against self-incrimination, deeming it more restrictive than the federal provision and

concluding that Pennsylvania has “traditionally viewed such references to the accused’s

silence as impermissible for a variety of reasons.” Id. at 539. We “decline[d] to hold,

under the Pennsylvania Constitution, that the existence of Miranda warnings, or their

absence, affects a person's legitimate expectation not to be penalized for exercising the

right to remain silent.” Id. at 540. Relying on our prior decisions in Singletary, Greco,

and Haideman, we recognized “a strong disposition on the part of lay jurors to view the

exercise of the Fifth Amendment privilege as an admission of guilt.” Id. at 539.

Additionally, we rejected the High Court’s conclusion that protection is only required

post-Miranda warnings. Instead, we emphasized our prior conclusion that the extent of

the right against self-incrimination is not altered by whether it was induced by Miranda

warnings or by prior knowledge of the right. Id. (citing Commonwealth v. Easley, 396

A.2d 1198, 1200-01 n.5 (Pa. 1979)). Therefore, given the substantial prejudice to the

defendant combined with the limited probative value resulting from the “insoluble

ambiguity” of silence, we prohibited reference to a defendant’s silence except to

impeach a factual inconsistency in defendant’s version of events, such as if he claimed

to have provided a post-arrest statement to police. Turner, 454 A.2d at 539-40. 17

      4. Pre-Arrest Silence




17
       In another case related to Miranda warnings not directly relevant to the issue
before this Court, a plurality of this Court imposed more stringent protections on the
right against self-incrimination than the federal jurisprudence, requiring that police
obtain an explicit waiver of Miranda rights, rather than adopting the minimal criteria set
by the United States Supreme Court in North Carolina v. Butler, 441 U.S. 369 (1979),
where the High Court found evidence of an implicit waiver of rights to be sufficient.
Commonwealth v. Bussey, 404 A.2d 1309, 1314-5 (Pa. 1979) (plurality).



                                    [J-55-2013] - 31
      Given that this case does not involve the Fourteenth Amendment due process

concerns of post-Miranda warning cases, we turn back to the right against self-

incrimination, specifically in regard to pre-arrest silence. In Bolus, 680 A.2d 839, this

Court refused to apply Turner to the pre-arrest period. While we acknowledged the

demarcation, we failed to explain the relevance of the pre- and post-arrest time periods

to the legal underpinnings of the right to silence.     Id. at 843.   Instead, we found

persuasive the United States Supreme Court’s holding in Jenkins, providing that pre-

arrest silence could be utilized to impeach a testifying defendant’s credibility.      Id.

Nonetheless, in a footnote, we specifically avoided deciding whether to extend the

holding to situations involving the use of pre-arrest silence as substantive evidence, the

issue before the Court herein. Id. at 844 n.5.18

      The question of whether reference to a non-testifying defendant’s pre-arrest

silence violates the defendant’s right against self-incrimination is now squarely before

this Court. As discussed below, we conclude that the timing of the silence, whether it

be pre or post-arrest, or pre or post-Miranda warnings, is not relevant to the question of

whether a prosecutor’s use of the silence as substantive evidence of guilt violates an

individual’s right against self-incrimination. While our courts have found the timing of a

defendant’s silence in relation to the provision of Miranda warnings to be extremely

relevant to a defendant’s due process rights, see Doyle, 426 U.S. 610, the

underpinnings of the right against self-incrimination are not based on timing but on

whether a person has been compelled to be a witness against himself at a criminal

proceeding. Regardless of whether a forced confession is obtained prior to the official



18
       We also acknowledged that the defendant in Bolus failed to present an argument
for distinguishing the protections provided by Section 9 from the federal provisions.
Bolus, 680 A.2d at 844.



                                     [J-55-2013] - 32
act of an arrest or after, it is not admissible at trial as it would result in the defendant

being “compelled to give evidence against himself.” PA. CONST. art. 1, § 9.

       We recognize, however, that some do not view the drawing of an adverse

inference of guilt from silence as within the protection of the right against self-

incrimination because it is not “compelled” in the traditional sense. See Molina, 33 A.3d

at 71 (opining that “the privilege against self-incrimination is irrelevant to a citizen's

decision to remain silent when he or she is under no official compulsion to speak”)

(Stevens, J., dissenting); see also Salinas, 133 S.Ct. at 2184 (Thomas, J., concurring);

Mitchell v. United States, 526 U.S. 314, 331 (1999) (Scalia, J., dissenting); Jenkins, 447

U.S. at 241 (Stevens, J., concurring). We respectfully disagree with the non-binding

reasoning of these jurists and, instead, view the drawing of an adverse inference from a

defendant’s silence to be encompassed within the right against compelled self-

incrimination. We recognize that the right is not violated by a mere reference to a

defendant’s silence, as occurred during the detective’s testimony in this case while she

explained her investigation. See DiNicola, 866 A.2d at 336-37 (“[T]he mere revelation

of silence does not establish innate prejudice”). The right against self-incrimination is

burdened, however, when the mention of a defendant’s silence is used by the

prosecutor as substantive evidence of guilt. Cf. id. at 337 (finding no violation where the

defendant’s silence “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.”).

       Justice Musmanno captured the conundrum: “If [a defendant] could not be made

a self-accusing witness by coerced answers, he should not be made a witness against

himself by unspoken assumed answers.” Dravecz, 227 A.2d at 907. Similarly, Justice

Thurgood Marshall stated in Jenkins, “the only means of compelling a person to

incriminate himself is to penalize him if he does not.” Jenkins, 447 U.S. at 250 n.4




                                     [J-55-2013] - 33
(Marshall, J., dissenting); see also Bentz, 98 Va. L. R. at 930 (“[T]he government cannot

argue both that the person’s silence is relevant and therefore admissible because a

normal person would feel compelled to speak, but also argue that the Fifth Amendment

does not apply because the person is not compelled.”). Allowing a prosecutor to use

silence as substantive evidence of guilt merely reintroduces a modern version of the

“cruel trilemma,” where a defendant is compelled to choose between confessing,

perjuring themselves, or remaining silent, where that silence can be used at trial to infer

guilt. Combs v. Coyle, 205 F.3d 269, 285 (6th Cir. 2000); Taylor v. Commonwealth, 495

S.E.2d 522, 528 (Va. Ct. App. 1998).

      Moreover, allowing reference to a defendant’s silence as substantive evidence

endangers the truth-determining process given our recognition that individuals accused

of a crime may remain silent for any number of reasons. See Dravecz, 227 A.2d at 907.

As in this case, a defendant’s silence in the face of police questioning is “insolubly

ambiguous” as it could be indicative of a busy schedule, a distrust of authority, an

unwillingness to snitch, as much as it is indicative of guilt. Nonetheless, as we noted in

Turner, jurors generally view silence as an indication of guilt. Turner, 454 A.2d at 539.

      We observe that the timing of the silence has little relevance to whether use of

that silence as evidence of guilt will impinge on the right against self-incrimination. We

have previously concluded that “[t]he difference between prosecutorial use of an

accused’s silence at [t]rial and the use of an accused’s silence at [a]rrest

is . . infinitesimal.” Haideman, 296 A.2d at 767 (internal quotation marks and citation

removed). In Turner, we likewise reiterated that no “reason exists to differentiate

between situations where the right to remain silent is exercised following [Miranda]

warnings and where it is exercised without warnings being given,” especially

considering that in this day most are aware of the Miranda warnings and their “right to




                                     [J-55-2013] - 34
remain silent.” Turner, 454 A.2d at 540 (quoting Commonwealth v. Easley, 396 A.2d at

1200-01 n.5). Similarly, we have interpreted Dravecz to prohibit the use of silence as

an implied admission where the silence occurred when in custody or “in the presence of

police,” although it did not extend to the use of silence as an implied admission outside

the presence of police. Commonwealth v. Coccioletti, 425 A.2d 387, 392 (Pa. 1981)

(opining that silence in the face of co-participant’s inculpatory declaration was

admissible pursuant to the implied admission exception to hearsay rule, given that it

occurred outside the presence of police); accord Combs, 205 F.3d at 283 (quoting

Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir. 1989) (holding “that application of the

privilege is not limited to persons in custody or charged with a crime; it may also be

asserted by a suspect who is questioned during the investigation of a crime”). Thus, we

conclude that the timing of the silence in relation to the timing of an arrest is not relevant

to the right against self-incrimination.

       Accordingly, we conclude that our precedent, and the policies underlying it,

support the conclusion that the right against self-incrimination prohibits use of a

defendant’s pre-arrest silence as substantive evidence of guilt, unless it falls within an

exception such as impeachment of a testifying defendant or fair response to an

argument of the defense.

       C. Other jurisdictions

       In addition to reviewing the text, history, and policies relating to the Pennsylvania

constitutional provisions, under Edmunds, we also consider the opinions of our sister

states. In so doing, our goal is not to create a “score card,” but rather to consider

whether the underlying logic of the decisions informs our analysis of the related

Pennsylvania provision. Edmunds, 586 A.2d at 900. We recognize that the First, Sixth,

Seventh and Tenth Circuits have concluded that use of pre-arrest silence as substantive




                                       [J-55-2013] - 35
evidence of guilt is inadmissible as violative of the right against self-incrimination, while

the Fifth, Ninth, and Eleventh have found no constitutional violation, reasoning that the

defendant is not subject to government compulsion before he is arrested.19 Similarly,

the question has divided state courts across the nation, through numerous, often,

fractured, decisions.20   Jurists on these courts have ably set forth the competing

arguments surrounding the use of pre-arrest silence as substance evidence. We find all

19
       The following Courts of Appeals have concluded that use of pre-arrest silence as
substantive evidence is unconstitutional: Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000);
United States v. Burson, 952 F.2d 1196 (10th Cir. 1991); Coppola v. Powell, 878 F.2d
1562 (1st Cir. 1989); United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.
1987).

      The following Courts of Appeals have concluded that use, as substantive
evidence, of silence prior to arrest is constitutional: United States v. Oplinger, 150 F.3d
1061 (9th Cir. 1998), overruled on other grounds by United States v. Contreras, 593
F.3d 1135 (9th Cir. 2010); United States v. Zanabria, 74 F.3d 590 (5th Cir. 1996);
United States v. Rivera, 944 F.2d 1563, 1568 n.12 (11th Cir. 1991).

20
        The following state courts have concluded that use of pre-arrest silence as
substantive evidence is unconstitutional: People v. Welsh, 58 P.3d 1065 (Colo. App.
2002); State v. Moore, 965 P.2d 174 (Idaho 1998); State v. Lovejoy, 89 A.3d 1066 (Me.
2014); Commonwealth v. Thompson, 725 N.E.2d 556 (Mass. 2000); State v. Rowland,
452 N.W.2d 758 (Neb. 1990); State v. Cassavaugh, 12 A.3d 1277 (N.H. 2010); State v.
Boston, 663 S.E.2d 886 (N.C. St. App. 2008); State v. Leach, 807 N.E.2d 335 (Ohio
2004); State v. Palmer, 860 P.2d 339 (Utah Ct. App. 1993); Taylor v. Commonwealth,
495 S.E.2d 522 (Va. Ct. App. 1998) (based upon Virginia constitutional provision); State
v. Easter, 922 P.2d 1285 (Wash. 1996); State v. Fencl, 325 N.W.2d 703 (Wis. 1982);
Tortolito v. State, 901 P.2d 387 (Wyo. 1995) (based upon Wyoming constitutional
provision).

       The following state courts have concluded that use of pre-arrest silence as
substantive evidence is constitutional: State v. Lopez, 279 P.3d 640, 645 (Ariz. Ct. App.
2012); People v. Schollaert, 486 N.W.2d 312 (Mich. Ct. App. 1992); State v. Borg, 806
N.W.2d 535 (Minn. 2011); State v. Masslon, 746 S.W.2d 618, 626 (Mo. Ct. App. 1988);
State v. Helgeson, 303 N.W.2d 342 (N.D. 1981); Salinas v. State, 368 S.W.3d 550 (Tex.
Ct. App. 2011), affirmed on other basis, 133 S.Ct 2174 (2013); State v. LaCourse, 716
A.2d 14 (Vt. 1998).



                                      [J-55-2013] - 36
of these discussions insightful and helpful to our analysis. However, we ultimately base

our decision on the Pennsylvania constitution and our precedent applying the right

against self-incrimination.

       After reviewing Article I, Section 9 of the Pennsylvania Constitution pursuant to

Edmunds, we conclude that the factors weigh in favor of diverging from the currently

asserted minimum standard of federal protection of the right against self-incrimination in

regard to the use of pre-arrest silence as substantive evidence. Specifically, while we

recognize the textual similarities with the Fifth Amendment, we conclude that the

primacy of the Declaration of Rights to Pennsylvania’s charter requires stronger

protection of our liberties than under the federal counterpart. More significantly, we

emphasize that, while this Court has often tracked federal jurisprudence in regard to the

right against self-incrimination, we have interpreted Section 9 to provider a broader right

on several occasions, including Triplett, Turner, and Swinehart. We find significant

guidance from Turner where this Court diverged from federal precedent on an issue

closely related to the issue at bar.     In Turner, we refused to allow the use of a

defendant’s decision to remain silent post-arrest to impeach the defendant’s trial

testimony, unless the defendant at trial claims he did not previously remain silent.

Accordingly, we hold that Article I, Section 9 is violated when the prosecution uses a

defendant’s silence whether pre or post-arrest as substantive evidence of guilt.

       Turning to the facts of this case, we agree with the Superior Court that the

prosecutor violated Defendant’s Fifth Amendment right against self-incrimination when

he emphasized Defendant’s silence as “most telling,” by asking “why” Defendant

refused to cooperate with the detective, and then instructing the jury to “[f]actor that in

when you’re making an important decision in this case as well.” N.T., Dec. 14-20, 2006,

at 581. While the prosecutor’s argument is not evidence, the prosecutor used the




                                     [J-55-2013] - 37
evidence referencing Defendant’s silence to imply his guilt, in essence making him "a

witness against himself by unspoken assumed answers.” Dravecz, 227 A.2d at 907. Cf.

Easley, 396 A.2d at 1202 (finding a prosecutor’s comment on a prior, admitted

reference to silence, unconstitutionally “implied to the jury that Easley’s silence at the

time of arrest was evidence of guilt”). Accordingly, we hold that the prosecutor’s use of

the properly admitted evidence of Defendant’s pre-arrest silence to infer guilt violates

Article I, Section 9 of the Pennsylvania Constitution.21

       III. Harmless Error Analysis

       A violation of Section 9, however, does not automatically result in a reversal.

Instead, we consider the Commonwealth’s alternative argument that any error was

harmless. The Commonwealth asserts that the reference to Defendant’s silence in this

case was a “lone mention” in a closing argument covering nearly thirty transcript pages

that did not suggest that the failure to come to the police station constituted an

21
         Moreover, I note that the ramifications of a decision condoning this prosecutor’s
closing statement are noteworthy.            It is without controversy under our Fourth
Amendment/Article I, Section 8 jurisprudence that a citizen has the right to break off a
mere encounter with police by declining to speak and walking away. Commonwealth v.
Ickes, 873 A.2d 698, 701-02 (Pa. 2005). While the defendant in this case walked away
telephonically, he nevertheless did no more than break off a mere encounter with a
police officer. To find that his actions are admissions of substantive guilt unprotected by
Article 1, Section 9 puts every citizen of Pennsylvania in the “cruel trilemma” referenced
repeatedly by the United States Supreme Court and this Court. See Pennsylvania v.
Muniz, 496 U.S. 582, 596 (1990); Swinehart, 664 A.2d at 967. If a citizen exercises his
well-established right to walk away without consequences under the Fourth
Amendment/Article I, Section 8, he can find that he has nevertheless somehow
admitted guilt by remaining silent under Article I, Section 9. Removing the ability to
remain silent without negative effect leaves a defendant with the choice to speak and
incriminate himself or to commit perjury. These options are inconsistent with his
seeming Fourth Amendment/Article I, Section 8 right to break off the encounter and his
Article I, Section 9 right against self-incrimination. To place our citizens on the horns of
this trilemma during every mere encounter with police simply cannot be constitutionally
countenanced, yet that is the proposition the Commonwealth espouses herein.



                                      [J-55-2013] - 38
admission of guilt. Accordingly, the Commonwealth urges the Court to reverse the

decision of the Superior Court and reinstate the judgment of sentence.

      In contrast, Defendant maintains that the error in this case was not harmless

because the Commonwealth’s evidence was based substantially upon what it viewed as

the biased and contradictory testimony of Michael Benintend, who was initially charged

with the murder, and Pam Deloe, who was a drug-addicted prostitute with a motive to

testify against Defendant. Given the critical importance of the credibility assessments of

these two witnesses, Defendant maintains that the evidence of guilt was not

overwhelming. He further argues that the prejudice was not de minimis given that the

prosecutor implored the jury to factor his silence in when deciding the case.

Accordingly, Defendant urges this Court to affirm the Superior Court’s decision.

      “[T]he proper standard for determining whether an error involving state law is

harmless is the same as the standard this Court applies to federal constitutional error:

an error can be harmless only if the appellate court is convinced beyond a reasonable

doubt that the error is harmless.”    Commonwealth v. Story, 383 A.2d 155, 162 (Pa.

1978) (citing Chapman v. California, 386 U.S. 18, 21 (1967)) see also Commonwealth v.

Murray, 83 A.3d 137, 165 (Pa. 2013) (‘[T]he same beyond a reasonable doubt measure

should govern errors of state law, regardless of whether the error is of constitutional or

non-constitutional magnitude.”) (Castille, C.J., concurring). We have found error to be

harmless where:

             (1) the error did not prejudice the defendant or the prejudice
             was de minimis; (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.



                                     [J-55-2013] - 39
Wright, 961 A.2d at 143 (quoting Commonwealth v. Young, 748 A.2d 166, 193 (Pa.

1999) and Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)). “[T]he burden

of establishing that the error was harmless beyond a reasonable doubt rests with the

Commonwealth.” Story, 383 A.2d at 162 n.11.

       The Commonwealth’s case against Defendant was based on the testimony of the

two eyewitnesses and several other witnesses who supported the details of the

eyewitnesses’ testimony and provided information regarding Victim’s activities on the

morning of the murder.        Given the questionable credibility of the two primary

eyewitnesses, Michael Benintend and Pam Deloe, as detailed below, we conclude that

the prosecutor’s entreaty for the jury to “[f]actor” in Defendant’s failure to meet with the

detective was prejudicial and not de minimis. Moreover, Defendant’s silence was not

cumulative of any other evidence. We additionally conclude that the other evidence in

the case is not overwhelming. While we do not discount the heinous crime involved and

have empathy for the loved ones of the victim, we cannot ignore that the blame for the

crime was placed on Defendant by Michael Benintend and Pam Deloe whose credibility

was significantly questioned during trial, allowing the real potentiality that the jurors

could have been swayed to believe the witnesses after considering the inference that

the Defendant had something to hide by not meeting with the Missing Persons Unit

detective, as urged by the prosecutor.

       To elaborate, Benintend testified that he called Victim to sell him drugs at

Benintend’s home where Defendant later arrived. Benintend further claimed to have

witnessed Defendant ask Victim for money she owed him and, when she did not pay,

watched Defendant beat Victim viciously with his hands and then a baseball bat.

Benintend asserted that he ran out the back door while Defendant continued to beat

Victim. Soon thereafter he moved to Key West, Florida. Given that the body was found




                                     [J-55-2013] - 40
in the house in which Benintend lived, he was originally charged with the murder. When

first questioned by detectives in Florida, he did not reveal any information about the

murder.   However, in the second interview, he placed the blame on Defendant.

Benintend eventually pled guilty to aggravated assault, unlawful restraint, and criminal

conspiracy in exchange for his testimony against Defendant. Indeed, the trial court at

sentencing recognized that, while the facts pointed to Defendant as the perpetrator, “Mr.

Benintend’s involvement was substantially greater than he has let it on to be.” N.T.,

March 15, 2007, at 13. Benintend also had prior crimen falsi convictions.

      Pam Deloe testified that she drove with Defendant to Benintend’s house. After

hearing screaming from the house, she claims to have entered the house and tried to

stop the horrific beating of Victim, but Defendant pushed her away. Deloe also alleged

that Benintend blocked Victim’s exit from the premises. She claimed that she left the

house and that Defendant followed approximately fifteen seconds later. As previously

mentioned, Deloe was also present when the detective initially came to Defendant’s

house looking for Victim. Moreover, she claims that Defendant kidnapped her after

Victim’s body was found and took her to Connecticut, where he was eventually arrested.

      However, Deloe admitted to being a prostitute and drug addict who was being

supported by Defendant. She acknowledged having difficulty remembering, which she

blamed on beatings she received from Defendant, for which he was also on trial at the

time of the murder proceeding. Moreover, in a confusing portion of her testimony that

evidenced her faulty memory, Deloe alleged that Defendant severely beat her when she

accused him publicly of Victim’s murder. However, the hospital record introduced to

support the alleged beating was for treatment that occurred prior to the murder, thus

arguably undermining her claims. N.T., Dec. 14-20, 2006, at 234-36. Defense counsel

further highlighted several inconsistencies between Benintend and Deloe’s testimony,




                                    [J-55-2013] - 41
including whether another man, named Troy, was present in the house during the

murder and whether Benintend remained in the house after Defendant left.

Recognizing the significant credibility issues concerning the eyewitness testimony of

Benintend and Deloe, we are not “convinced beyond a reasonable doubt that the error

was harmless.” Story, 383 A.2d at 162. As we have noted, “it is far worse to conclude

incorrectly that the error was harmless than it is to conclude incorrectly that the error

was reversible.” Commonwealth v. Davis, 305 A.2d 715, 719 (Pa. 1973).

        Accordingly, we conclude that the prosecutor’s use of the non-testifying

defendant’s silence as substantive evidence of guilt was not harmless. Therefore, we

would affirm the decision of the Superior Court reversing the judgment of sentence and

remanding for a new trial.

        Mr. Justice Stevens did not participate in the consideration or decision of this
case.

        Former Justice McCaffery did not participate in the decision of this case.

        Mr. Justice Saylor files a concurring opinion in which Madame Justice Todd joins.

        Mr. Chief Justice Castille files a dissenting opinion.


        Mr. Justice Eakin files a dissenting opinion.




                                       [J-55-2013] - 42
