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


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
             v.                              :   vacating the Judgment of Sentence of
                                             :   the Court of Common Pleas of
                                             :   Allegheny County entered March 15,
                                             :   2007 at CP-02-CR-0007403-2004 and
MICHAEL MOLINA,                              :   CP-02-CR-0009547-2004 and
                                             :   remanding.
                  Appellee                   :
                                                 ARGUED: September 10, 2013




                               CONCURRING OPINION



MR. JUSTICE SAYLOR                               DECIDED: NOVEMBER 20, 2014


      I join the lead opinion, subject to a few modest departures.

      In terms of these differences, first, I believe that it is unnecessary to determine

whether Appellant impliedly invoked his constitutional right against self-incrimination.

See Opinion Announcing the Judgment of the Court, slip op. at 12 (concluding that

Appellant effectuated an implied invocation). lf, as I believe it is here, silence can be

insolubly ambiguous (since there are many reasons why a person may decline to

respond when questioned), 1 I find it problematic to suggest a particular resolution


1
  In addition to the reasons referenced by the lead Justices, see id. at 34, a person’s
decision not to speak to an officer who appears at his door, or whom he encounters in
(continued?)
concerning what was meant by Appellee’s refusal to speak. Indeed, as I read the lead

Justices’ ultimate disposition, with which I agree, Article I, Section 9 of the Pennsylvania

Constitution precludes the prosecution from using a defendant’s pre-arrest silence as

substantive evidence of guilt regardless of whether an invocation may be discerned.

See id. at 37.

       Next, I have some difficulty to the degree the lead opinion treats “protection of

the adversary system” as an end unto itself. Id. at 28, 29. The adversarial litigation

scheme has its limits, and all actors involved in the criminal justice apparatus must both

respect individual liberties and refrain from overreaching. To the extent we accept that

silence is insolubly ambiguous in any given situation, and that the social science is

tending to confirm the suspicion that jurors may be inclined to misperceive silence as

evidence of guilt, see, e.g., Mikah K. Story Thompson, Me Thinks the Lady Doth Protest

Too Little: Reassessing the Probative Value of Silence, 47 U. LOUISVILLE L. REV. 21, 38-

49 (2008) (discussing various studies demonstrating the ambiguity of silence); accord

Commonwealth v. Turner, 499 Pa. 579, 583, 454 A.2d 537, 539 (1982), it is troubling

that the Commonwealth would seek to advocate convictions based on silence. In this

regard, were it a matter of first impression, I am not certain that I would support the

notion that the Pennsylvania Constitution permits the use of a defendant’s silence –

where it is ambiguous but prejudicial – even for impeachment purposes.2



(?continued)
public, may stem from the notion, now widely known in our culture, that “anything he
says can be used against him in a court of law[.]” Miranda v. Arizona, 384 U.S. 436,
479, 86 S. Ct. 1602, 1630 (1966); see Dickerson v. United States, 530 U.S. 428, 443,
120 S. Ct. 2326, 2336 (2000) (explaining that Miranda warnings “have become part of
our national culture”).
2
  In the present state of the constitutional jurisprudence on this score, at the very least,
trial judges should consider our evidentiary rules. See, e.g., Pa.R.E. 403 (providing that
(continued?)
                             [J-55-2013][M.O. – Baer, J.] - 2
      In terms of my agreement with the majority opinion, from my perspective, the

majority does an admirable job working through what has become a highly complex

and, indeed, counter-intuitive area of federal constitutional jurisprudence. See, e.g.,

Peg Green, Pre-Arrest, Pre-Miranda Silence: Questions Left Unanswered by Salinas v.

Texas, 7 PHOENIX L. REV. 395, 409 (2013) (“The odd result of Salinas is that one must

speak in order to remain silent; and if a person remains silent instead of speaking up,

that silence can be used against him as evidence of guilt.”). To my mind, the result is

the delineation of a reasoned and just avenue of departure in our enforcement of a core

right guaranteed by the Pennsylvania Constitution.

      Madame Justice Todd joins this concurring opinion.




(?continued)
a court may exclude evidence if its probative value is outweighed by the danger of
unfair prejudice).

                            [J-55-2013][M.O. – Baer, J.] - 3
