Commonwealth  v. Molina

• Decision Date: 09 November 2011
• Parties: COMMONWEALTH of Pennsylvania v. Michael MOLINA, Appellant.
• Court: Pennsylvania Superior Court

2011 PA Super 237

33 A.3d 51

COMMONWEALTH of Pennsylvania

v.Michael MOLINA, Appellant.

Superior Court of Pennsylvania.

Argued June 7, 2011.Filed Nov. 9, 2011.

Michael W. Streily, Deputy District Attorney and Francesco L. Nepa, Assistant District Attorney, Pittsburgh, for appellant.

Thomas N. Farrell, Pittsburgh, for appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, DONOHUE, ALLEN, LAZARUS, and OLSON, JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

Michael Molina appeals nunc pro tunc from the judgment of sentence entered in the Court of Common Pleas of Allegheny County following his conviction for murder in the third degree and unlawful restraint. Herein, we are asked to determine whether the Commonwealth may urge the jury to use a non-testifying defendant's pre-arrest, pre- Miranda¹ silence as substantive evidence of his guilt. For the following reasons, we conclude it cannot as such an inference is in violation of the constitutional protections afforded by the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.

Molina was charged at Criminal Information No. CC 200407403 with one count of criminal homicide in violation of 18 Pa.C.S.A. § 2501 for the beating death of Melissa Snodgrass, whose badly decomposed body was discovered in a basement under a pile of debris in March of 2004. In addition, at Criminal Information No. CC 200407611, Molina was charged with one count each of criminal conspiracy, 18 Pa.C.S.A. § 903, and unlawful restraint, 18 Pa.C.S.A. § 2902. On December 13, 2006, a jury trial commenced before the Honorable David R. Cashman.

A brief summary of the facts relevant to the issue is as follows. From the time of Snodgrass' disappearance on September 7, 2003, until her mummified remains were found on March 9, 2004, Snodgrass' disappearance was handled by Detective Stacey Hawthorne–Bey of the Missing Persons Unit of the Pittsburgh Police Department. (Notes of testimony, 12/18–12 & 20/06 Vol. II at 477–479.) At trial, Detective Hawthorne–Bey testified that she initially received information that Snodgrass might be held against her will in Molina's house on Perrysville Avenue in the City of Pittsburgh. The detective went to that address and was told that Molina no longer lived there. ( Id. at 480.) She was told by Pamela Deloe that Snodgrass was not there. ( Id. at 483.) Detective Hawthorne–Bey asked Deloe to tell Molina to call her, and she gave Deloe her number.

Later the same day, Molina contacted the detective; and before she could ask him if he was aware that Snodgrass was missing, Molina told her that he did not know where she was but it was “out on the street” that he was somehow involved in her being missing and that was not true. ( Id. at 480.) Detective Hawthorne–Bey asked Molina when he last saw Snodgrass, and he initially told the detective a year and a half ago; then moments later, Molina stated it had been approximately three months since he last saw Snodgrass. ( Id. at 481.) The detective testified that she asked Molina to come down to police headquarters so she could further interview him and he refused. ( Id.)

At closing argument, counsel for the Commonwealth commented on Molina's refusal to cooperate with Detective Hawthorne–Bey, and asked “Why?” ( Id. at 580.) Defense counsel objected. The trial court overruled the objection and refused counsel's request for a curative instruction. The Commonwealth resumed and argued to the jury, “Factor that in when you're making an important decision in this case....” ( Id. at 581.)

On December 20, 2006, the jury found Molina guilty of third-degree murder and unlawful restraint.² On the same date, Molina proceeded to sentencing. At No. CC 200407403, appellant was sentenced to 20 to 40 years' imprisonment for third-degree murder, and no further penalty was imposed for the unlawful restraint conviction at No. CC 200407611. No post-sentence motions were filed, nor was a direct appeal perfected.

On July 11, 2007, Molina, acting pro se, filed an untimely notice of appeal with regard to his convictions relating to Snodgrass. Judge Cashman reinstated Molina's direct appeal rights on September 26, 2007, and appointed Thomas N. Farrell, Esq., to represent him.³ A three-judge panel of this court initially authored an opinion that reversed Molina's convictions. Commonwealth v. Molina, 2 A.3d 1244 (Pa.Super.2010). The Commonwealth filed a petition for reargument before the court en banc. By per curiam order, on October 19, 2010, this court granted reargument, withdrew its panel decision, directed the case to be listed before an en banc panel, and instructed the parties to re-file the briefs previously filed together with a supplemental brief or prepare and file a substituted brief. Both parties filed substituted briefs.

Herein, one issue is presented for our review. Molina contends that the trial court committed reversible error when it permitted the Commonwealth, over objection, to reference his pre-arrest silence in response to police questioning as substantive evidence of guilt. (Molina's substituted brief at 4.) Specifically, Molina challenges the following commentary by the prosecution at closing argument:

Look also at what happened in terms of the police investigation in this matter. Three days after [Snodgrass] goes missing, three days after she goes missing, detectives are already knocking on [Molina's] door because of something they heard, maybe he was holding this person against [her] will, and he calls the police back and is very defensive. I mean, before a question's even asked, he denied any knowledge or any involvement with this young lady. He makes contradictory statements to 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 [detective] 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?

Notes of testimony, 12/18–12/20/06, Vol. II at 579–580 (emphasis added).

Defense counsel objected, arguing that the prosecutor's commentary was improper; both counsel approached the bench. ( Id. at 580.) After discussing the matter, the trial court overruled Molina's objection and refused his request for a curative instruction to the jury. ( Id. at 580–581.) The Commonwealth then resumed and argued to the jury: “Factor that in when you're making an important decision in this case as well.” ( Id. at 581.)

Molina argues that the trial court erred in overruling his objection to the Commonwealth's closing statement that the jury should consider Molina's refusal to go to the police station to discuss Snodgrass' disappearance as evidence of his guilt. Molina avers he is entitled to a new trial as the court's error violated the Fifth Amendment of the United States Constitution and also Article 1, Section 9 of the Pennsylvania Constitution as well as Pennsylvania law, including 42 Pa.C.S.A. § 5941(a). (Molina's substituted brief at 28–29.)

The Commonwealth first contends that Molina did not object to the testimony concerning appellant's pre-arrest silence at the proper stage and, thus, waived the issue. The Commonwealth argues that Molina failed to object to Detective Hawthorne–Bey's testimony when she originally stated that Molina refused to go to the police station to discuss the case. Thus, because Molina did not lodge a contemporaneous objection at the time the statement was first offered, the Commonwealth posits Molina lost his right to challenge any reference indicating that he refused to cooperate with the police. (Commonwealth's substituted brief at 12, 17–21.) We disagree and find that the Commonwealth's waiver argument misconstrues Molina's objection.

WAIVER DUE TO A LACK OF A CONTEMPORANEOUS OBJECTION

We agree with the Commonwealth that it is “well-settled that a defendant's failure to object to allegedly improper testimony at the appropriate stage in the questioning of the witness constitutes waiver.” Commonwealth v. Redel, 335 Pa.Super. 354, 484 A.2d 171, 175 (1984). However, Molina's lack of objection during Detective Hawthorne–Bey's direct examination is not fatal to Molina's claim as he is not contending that the detective's testimony constituted prejudicial evidence that denied him a fair trial. Rather, Molina is arguing that the prosecutor's use of the detective's testimony to suggest consciousness of guilt was improper. Thus, we find that Molina contemporaneously objected to the prosecutor's statement and timely requested a curative instruction.⁴

As the trial court noted, Detective Hawthorne–Bey's testimony was originally offered to denote the extent and focus of the police investigation with regard to Snodgrass' disappearance. (Trial court opinion, 4/15/09 at 30.) The actual evidence which resulted in the detective's examination did not reveal that Molina tacitly admitted guilt, but instead it revealed the steps the police took to investigate Snodgrass' disappearance. The revelation of silence in this case was limited to its context. The trooper revealed the exchange with Molina wherein a denial of wrongdoing was immediate, and the decision to engage in further discussion with the trooper was declined. In this situation, the reference to silence was not used in any fashion that was likely to burden Molina's Fifth Amendment right or to create an inference of an admission of guilt. Cf. Commonwealth v. DiNicola, 581 Pa. 550, 563, 866 A.2d 329, 337 (2005) (The mere revelation of a defendant's pre-arrest silence does not establish innate prejudice; reference to silence was circumspect, and it was not used in any fashion that was likely to burden defendant's ...