Com. v. DiNicola

Decision Date19 January 2005
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. David Joseph DiNICOLA, Appellee.
CourtPennsylvania Supreme Court

Paula C. DiGiacomo, for the Com. of PA, appellant.

J. Wesley Rowden, Meadville, for David Joseph DiNicola, appellee.



Chief Justice CAPPY.

This appeal presents the question of whether Appellee's Fifth Amendment privilege against self-incrimination was violated by reference to his pre-arrest silence. This question is brought before our court by Appellant who challenges the determination that trial counsel was ineffective. Because we find no violation of Appellee's Fifth Amendment privilege, the attendant finding of ineffective assistance of trial counsel was in error. Therefore, for the reasons stated below, we reverse the order of the Superior Court awarding a new trial and reinstate the judgment of sentence.

Appellee was convicted of aggravated indecent assault and related offenses, arising from his interaction with fourteen year old K.H., a resident at a youth placement facility where Appellee was employed as a staff member. Several weeks after Appellee's unrelated, voluntary departure from his employment at the facility, K.H. confided to a staff member that Appellee touched her in an inappropriate, sexual manner. K.H. asked that her disclosure be kept in confidence. Against K.H.'s wishes, the staff member reported the disclosure, and an investigation ensued, first by facility staff and later by the Pennsylvania State Police.

The investigating trooper initially spoke with the facility supervisor and interviewed K.H., who confirmed her prior disclosure. The trooper also interviewed staff members who worked with Appellee and, to varying degrees, corroborated that Appellee had maintained a close relationship with K.H.

The trooper telephoned Appellee to request an interview, indicating that allegations had been made against him relating to his employment at the facility, but would not discuss details over the phone. Appellee declined to meet with the trooper, expressing a desire to consult his attorney. Later, the attorney contacted the trooper and stated that Appellee adamantly denied any inappropriate conduct, but, on the advice of counsel, would assert his right under the Fifth Amendment to the United States Constitution to remain silent at any interview with police.

Appellee was subsequently arrested and charged with offenses ranging from aggravated indecent assault of a person less than sixteen years old to corruption of a minor.

At the ensuing jury trial, after presenting testimony from K.H. and other witnesses, the Commonwealth called upon the arresting trooper solely to establish Appellee's age at the time of his offenses. On cross-examination, Appellee's trial counsel attempted to proceed beyond the scope of the direct examination but was precluded from doing so. After the Commonwealth rested, however, trial counsel called the trooper as a defense witness. On the Commonwealth's request for an offer of proof, counsel for Appellee summarized his reason for calling the trooper by stating that he wished to question the trooper "to determine the adequacy of the Pennsylvania State Police investigation against my client, Dave DiNicola. I don't think they put on an adequate investigation. These questions are directly proposed to be present [sic] to show the jury and I think I should be entitled to let them know this." (T.T. p. 16).

The direct examination of the trooper followed. During that examination, the Commonwealth objected and raised the concern that the line of questions would lead to the trooper revealing Appellee's pre-arrest assertion of silence. (T.T. p. 29) When presented with this concern at sidebar, trial counsel responded: "All I asked if he investigated anything that's inconsistent with his theory of guilt on this case. I think it's very clear cut." (T.T. p. 30).1

After being permitted to proceed, trial counsel asked the trooper a series of leading questions implying that his investigative efforts were minimal and/or one-sided. See, e.g., N.T., Nov. 18, 1998, at 29 ("In fact nothing here — nothing whatsoever was investigated that might be inconsistent with your theory that Dave DiNicola is guilty here; right? Was anything else investigated that might tend to show otherwise? Anything?"). On the Commonwealth's objection, another sidebar discussion ensued, during which the district attorney advised that such questioning would open the door to the trooper elaborating on his unsuccessful effort to interview Appellee in furtherance of the investigation. The trial court attempted to discourage trial counsel from proceeding on his intended course, suggesting that the central issue before the jury was credibility and that aggressive questioning of the trooper might not resonate with the jury, particularly as trial counsel was unable to offer any evidence that the officer should have uncovered. The court nevertheless overruled the Commonwealth's objection, and trial counsel reiterated: "Now, was anything done by you — anything — did you look in any other direction to see if these charges were unfounded?" The officer responded that he contacted Appellee, at which point trial counsel interrupted him, shifting the focus away from Appellee's response to the trooper's inquiry.

On cross-examination, however, the district attorney returned to the subject of the trooper's conversation with Appellee, eliciting the trooper's explanation that Appellee declined the request for an interview, and that counsel for Appellee later contacted the trooper and advised that Appellee denied the allegations but would invoke his right to remain silent in any discussion with law enforcement personnel.

The remainder of the defense case consisted of Appellee's testimony, in which he refuted the Commonwealth's allegations of criminal conduct, and of evidence from numerous character witnesses. The jury convicted Appellee of all counts, and the court imposed a sentence of incarceration for eleven and one-half to twenty-four months, with a subsequent term of probation.

Armed with new counsel, Appellee filed a post-sentence motion alleging ineffectiveness of trial counsel. It was asserted that trial counsel was ineffective, first, for failing to object to the trooper's testimony revealing Appellee's pre-arrest silence; and second, for opening the door to the inevitable revelation that Appellee asserted his right to remain silent. A hearing on the matter was scheduled; however, the original record presented to this court, contains no transcript of an evidentiary hearing at this stage or any other reference that would indicate whether or not it was actually conducted.2

The common pleas court did not separately assess the allegations of ineffectiveness; rather, it reached a global conclusion that there was no merit to the allegations of ineffectiveness and denied relief. The trial court's decision rested on its determination that Appellee's response to the trooper's request for an interview was better characterized as a denial of the charges rather than as silence capable of being viewed by jurors as a tacit admission. Further, the court noted that while there is a strong proscription against references to a defendant's post-arrest silence in circumstances in which the defendant elects not to testify at trial, see, e.g., Commonwealth v. Clark, 533 Pa. 579, 626 A.2d 154, 158 (1993),

a defendant's pre-arrest silence is more amenable to being offered into evidence, at least where the defendant elects to testify, as occurred in this case. See Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839, 844 (1996) ("[W]hen a criminal defendant waives his right to remain silent and testifies at his own trial, neither the United States nor the Pennsylvania Constitution prohibit a prosecutor from impeaching a defendant's credibility by referring to his pre-arrest silence."). The court concluded:

Therefore because the defendant was never directly confronted with an accusation of criminal misconduct to which he remained silent but rather was simply asked for an appointment for an interview and because pre-arrest silence is admissible under certain circumstances, the defendant has failed to satisfy the first prong of the ineffectiveness test, i.e. that the claim has arguable merit.

On appeal, however, a three-judge panel of the Superior Court disagreed. See Commonwealth v. DiNicola, 751 A.2d 197 (Pa.Super.2000) ("DiNicola I

"). The court in DiNicola I focused on trial counsel's failure to object. Reasoning that the inquiry into the scope of the investigation represented an attempt to obtain evidence that might have established Appellee's innocence and did not, in and of itself, reveal that Appellee had asserted his right to remain silent, the panel found a reasonable basis for counsel's initial questioning of the trooper. See id. at 200. It was the elicitation by the prosecution of Appellee's pre-arrest silence through cross-examination that caused the panel concern. Proceeding from that point, with the erroneous belief that Appellee had not testified at his trial, the panel found merit in the claim that trial counsel was ineffective in failing to object to the salient cross-examination. See id. at 202. Furthermore, the panel stated, in a conclusory fashion, that the prejudice resulting from reference to Appellee's silence was substantial. See id. at 202. However, the court deemed the record inadequate to assess whether counsel had a reasonable basis for failing to object. See id. Accordingly, the panel remanded for an evidentiary hearing limited to this question.

At the subsequent hearing before the common pleas court, trial counsel confirmed what he had stated at trial, that his questioning was designed to expose inadequacies in the criminal investigation into Appellee's...

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    ...Let me ask you this, what should an innocent man admit to?"). Appellant's Fifth Amendment claim fails. See Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329, 336 (2005) (this Court "decline[d] to expand Griffin to preclude a fair response by the prosecutor in situations [where the defense......
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    ...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 ......
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