Com. v. Turner

• Decision Date: 31 December 1982
• Parties: COMMONWEALTH of Pennsylvania v. Stephen TURNER, Appellant.
• Court: Pennsylvania Supreme Court

Page 537

454 A.2d 537

499 Pa. 579

COMMONWEALTH of Pennsylvania v. Stephen TURNER, Appellant.

Supreme Court of Pennsylvania.

Dec. 31, 1982.

[499 Pa. 580] Flora L. Becker, Philadelphia, Court-appointed, for appellant.

Robert B. Lawler, Chief, Appeals Div., Mark Gurevitz, Philadelphia, for appellee.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

This is a direct appeal ¹ from the judgment of sentence, following appellant's conviction by a jury of voluntary manslaughter and possession of an instrument of crime, but acquittal of murder.

Appellant was charged in the shooting death of Richard Hilton, occurring in a Philadelphia bar. Conflicting evidence was offered as to whether the gun was fired during the course of a struggle or whether appellant, having overpowered Hilton, stood over him and shot him three times. Appellant testified in his own behalf, maintaining that the shooting was in self-defense. As the only witness to provide exculpatory testimony, he testified that Hilton put a gun to his shoulder, whereupon he grabbed Hilton, disarmed him, and, then noticed a drug dealer with whom he had been negotiating during the course of the evening, standing behind Hilton with a gun. Thinking the dealer had fired at him, appellant fired Hilton's gun once, striking Hilton. Appellant, firing the gun over his own shoulder because he heard two additional shots fired at him, ran from the scene. Hilton was hit three times and died from these wounds.

Following appellant's conviction and the denial of post-verdict motions, he was sentenced to a term of five to ten years imprisonment. This appeal followed.

Appellant contends that a reference by the prosecutor, in his cross-examination of appellant, to appellant's silence before trial constitutes reversible error warranting the grant of a new trial. We agree.

After appellant stated, on cross-examination, that he saw the drug dealer shooting at him, the prosecutor asked: "Did you ever tell the police that somebody was shooting at you?" Appellant had not, at any time, given a statement to the police. This in-court testimony was the first occasion on which appellant offered an exculpatory version of the shooting. Before appellant answered, defense counsel objected to the question and, at sidebar, moved for a mistrial. The trial judge sustained the objection but denied the motion for mistrial, giving instead cautionary instructions to the jury sua sponte. ² During the course of the trial, there were no further prosecutorial references to appellant's silence.

The Commonwealth contends that the cautionary instruction, as evidenced by the verdict itself, was effective, rendering any error harmless. That is, the Commonwealth argues that the jury, by returning a verdict of voluntary manslaughter, found appellant's assertion of self-defense credible though unreasonable, and rejected the Commonwealth's charge of premeditated, intentional killing, returning a verdict under subsection (b) of the Voluntary Manslaughter statute, "Unreasonable belief killing." ³

The United States Supreme Court has recently established the constitutional permissibility of references at trial to post-arrest silence where the silence in question occurred prior to the giving of Miranda warnings. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). This holding is grounded upon the view that the giving of warnings mandated by the Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), implicitly induces the accused to remain silent, and absent the giving of the warnings, there is no governmental inducement to remain silent. Accordingly, as a matter of federal constitutional law, the use of pre-Miranda silence is permissible to impeach the defendant's trial testimony of exculpatory events. In this Commonwealth, however, we have traditionally viewed such references to the accused's silence as impermissible for a variety of reasons.

The view of this Court that there exists a strong disposition on the part of lay jurors to view the exercise of the Fifth Amendment privilege as an admission of guilt is well established. See Commonwealth v. Singletary, 478 Pa. 610, 612, 387 A.2d 656, 657 (1978); Commonwealth v. Greco, 465 Pa. 400, 404, 350 A.2d 826, 828 (1976); Commonwealth v. Haideman, 449 Pa. 367, 371, 296 A.2d 765, 767 (1972). In Commonwealth v. Haideman, supra, we stated:

"We would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt." Walker v. United States [404 F.2d 900 (5th Cir.1968) ], ... It is clear that "[t]he privilege against self-incrimination 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." Slochower v. Board of Higher Ed. of N.Y. [350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692].

Commonwealth v. Haideman, 449 Pa. 367, 371, 296 A.2d 765, 767 (1972) (citations omitted).

The prejudice to the defendant resulting from reference to his silence is substantial. While it is efficacious for the Commonwealth to attempt to uncover a fabricated version of events, in light of the "insolubly ambiguous" nature of silence on the part of the accused, Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91, 97 (1976), we do not think it sufficiently probative of an inconsistency with his in-court testimony to warrant allowance of any reference at trial to the silence. Accordingly, the Commonwealth must seek to impeach a defendant's relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial. Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when in fact he remained silent. Doyle v. Ohio, Id. at 619, n. 11, 96 S.Ct. at 2245, n. 11, 49 L.Ed.2d at 98, n. 11. Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

Article 1, § 9 of the Pennsylvania Constitution provides that the accused "cannot be compelled to give evidence against himself ...," a right which is parallel to the federal constitutional right under the Fifth Amendment. We do not think that the accused should be protected only where there is governmental inducement of the exercise of the right. We acknowledge that this position is more restrictive than that taken by the United States Supreme Court in Fletcher v. Weir, supra. However, we decline 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. In Commonwealth v. Easley, 483 Pa. 337, 396 A.2d 1198 (1979), this Court in a footnote stated:

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

Id. at 341-42, n. 5, 396 A.2d 1200-01, n. 5. See also Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978).

We also reject the argument by the Commonwealth that the reference was harmless error as evidenced by the fact of the reduced verdict of voluntary manslaughter, i.e. by returning a voluntary manslaughter verdict, the jury purportedly indicated its belief of the appellant's version of events and was not affected in the decision making process by the prosecutor's improper question.

Such error is "harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless". Commonwealth v. Story, 476 Pa. 391, 405-406, 383 A.2d 155, 162 (1978). Unless the court determines that the error could not have contributed to the verdict, the "reasonable possibility" that the error did contribute to the verdict negates any notion of harmlessness. Id. at 409, 383 A.2d at 164.

That requirement is not fulfilled in this case. In order to draw conclusions from the verdict about what the jury believed, the Commonwealth's hypothesis about the jury's state of mind would have to be a necessary and sufficient explanation of the verdict. But the most obvious of alternative explanations presents itself: the jury may have delivered a compromise verdict. The jury may have decided that the Commonwealth's case was significantly bolstered by the reference to appellant's post-arrest silence and that it would be appropriate to impose a verdict more severe than acquittal but less severe than murder. See Commonwealth v. McClendon, 478 Pa. 108, 111, 385 A.2d 1337, 1339 (1978). Verdicts are arrived at after many objective and subjective considerations and do not always conform perfectly to the instructions given by the court. Thus, no sound conclusions can be drawn from the verdict about "what the jury believed" concerning appellant's credibility. To attempt to draw such conclusions is to speculate. As we cannot be sure that the jury would have resolved the issue in the same manner absent the improper reference, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict. Far from being harmless error, the reference may well have impermissibly contributed to the verdict.

Accordingly, the judgment of sentence of the Court of Common Pleas is vacated and the case is remanded for a new trial. ⁴

NIX, J., files a dissenting opinion.

McDERMOTT, J., files a dissenting opinion in which HUTCHINSON, J., joins.

NIX,...