Commonwealth Of Pa. v. Molina

• Decision Date: 13 August 2010
• Docket Number: No. CP-02-CR-0009547-2004,No. CP-02-CR-0007403-2004,NO. 1948 WDA 2007,1948 WDA 2007,CP-02-CR-0007403-2004,CP-02-CR-0009547-2004
• Citation: 2010 PA Super 148
• Parties: COMMONWEALTH OF PENNSYLVANIA,Appellee v. MICHAEL MOLINA,Appellant
• Court: Pennsylvania Superior Court

2010 PA Super 148

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.MICHAEL MOLINA, Appellant

NO. 1948 WDA 2007

No. CP-02-CR-0007403-2004

No. CP-02-CR-0009547-2004

Superior Court Of Pennsylvania

Date: March 15, 2007

Filed: August 13, 2010

Appeal from the Judgment of Sentence In the Court of Common Pleas of Allegheny County

BEFORE: SHOGAN, COLVILLE^* AND CLELAND*, JJ.

OPINION BY CLELAND, J.

Appellant, Michael Molina (Molina), appeals the judgment of sentence of the Court of Common Pleas of Allegheny County entered on March 15, 2007. The issue is whether the Commonwealth may urge the jury to use a non-testifying defendant's pre-arrest silence as evidence of his guilt. We conclude it cannot. Accordingly, we reverse the judgment of sentence and remand for a new trial.

The trial court summarized the underlying facts and the procedural history as follows:

On September 7, 2003, Melissa Snodgrass, (hereinafter referred to as "Snodgrass"), was twenty-one years old, single and living with her mother and her pet dog, Baby, inthe Northside Section of the City of Pittsburgh. On that day at approximately 11:00 a.m., she left her residence with her dog and told her mother she was off to do some errands. That was the last time any individual saw her alive. On March 9, 2004, her mummified remains were found in the basement of a house located at 1104 Spring Garden Avenue, by two individuals who had been hired to clean up that building.

Pittsburgh Homicide Detectives, during the course of their investigation, determined that Michael Benintend, (hereinafter referred to as "Benintend"), also known as "White Mike", was residing in that residence at the time of Snodgrass' disappearance. Benintend was arrested by police in Key West, Florida, on a warrant charging him with criminal homicide, unlawful restraint, aggravated assault and criminal conspiracy. During his second interview with a Pittsburgh Homicide Detective, Benintend told him that [Molina], had viciously beaten Snodgrass and he presumed that Molina had killed her.

Molina was charged with criminal homicide, unlawful restraint, aggravated assault, simple assault and criminal conspiracy. Following a jury trial he was convicted of third degree murder, unlawful restraint, aggravated assault and simple assault. Molina's motion for judgment of acquittal as to the charge of criminal conspiracy to commit criminal homicide was granted. A presentence report was ordered and on March 15, 2007, Molina was sentenced to two hundred forty to four hundred eighty months on the charge of third degree murder, and a consecutive period of incarceration of forty-eight to ninety-six months on the charges of aggravated assault, unlawful restraint and simple assault.

Trial Court Opinion (T.C.O.), 4/15/09, at 2-3.

This timely appeal followed. Both the trial court and Molina complied with Pa.R.A.P. 1925.¹

This appeal concerns the testimony of Detective Stacey HawthorneBey of the Missing Persons Unit of the Pittsburgh Police Department and the prosecutor's comment during closing argument about her testimony. Specifically, Molina raised the following issue: "Whether the trial court erred in [not] sustaining the objection when the prosecutor improperly commented on [Molina]'s silence?" Appellant's Brief at 4.

Detective Hawthorne-Bey testified that while investigating Snodgrass' disappearance she spoke to a man known as "Spinneweber." N.T. Trial, 12/18-12/20/06, Vol. II, at 483. Spinneweber told her he saw Snodgrass getting into Molina's car on September 3, 2003. Id. Armed with this information, Detective Hawthorne-Bey went to Molina's address. Id. at 480, 483. The detective talked to Molina's girlfriend who was staying there. Id. Molina, however, was no longer living at that address, according to Molina's girlfriend. Id. Detective Hawthorne-Bey told Molina's girlfriend she was investigating the Snodgrass' disappearance. Id. at 483-84. The detective then asked Molina's girlfriend to tell Molina to call her back "ASAP" because she needed to talk to him about the matter. Id. at 480. See also id. at 484. Detective Hawthorne-Bey's testimony then continued as follows:

[Commonwealth:] And did [Molina], in fact, get back to you at some point after that?

[Detective Hawthorne-Bey:] Yes, That same day, actually.

[Commonwealth:] I'm sorry?

[Detective Hawthorne-Bey:] That same day.

[Commonwealth:] And did you question him during that contact with him?

[Detective Hawthorne-Bey:] I asked him--well, before I could even ask him if he was aware of [Snodgrass] 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.

[Commonwealth:] And did you ask him or did he state to you?

[Detective Hawthorne-Bey:] He stated this to me.

[Commonwealth:] Without even you asking him. Is that what you're saying?

[Detective Hawthorne-Bey:] Right, without me even asking him that.

[Commonwealth:] Did [Molina] state to you, whether prompted by a question or spontaneously, I guess you might say, as to when he had last seen this young lady, [Snodgrass]?

[Detective Hawthorne-Bey:] Yes. Well, after the statement, I asked him, "When was the last time that you had seen [Snodgrass]?"

And first he said, "About a year and a half ago."

And I said, "When was the last time you [had] seen her?"

And then he stated, "Three months ago."

[Commonwealth:] All right. That's all within the span of a single conversation that these things happened, ma'am?

[Detective Hawthorne-Bey:] Yes, yes.

[Commonwealth:] And was it one right after the other? I mean--

[Detective Hawthorne-Bey:] 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.

[Commonwealth:] So this contact that you had with him was over the telephone. Is that what you're saying?

[Detective Hawthorne-Bey:] Yes, it was over the telephone.

Id. at 480-81.

At closing argument, counsel for the Commonwealth commented on Detective Hawthorne-Bey's testimony as follows:

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 denies 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?

Id. at 579-80.

Upon objection from defense counsel, both counsel approached the bench. Id. at 580. After discussing the matter with the trial court, the trial court overruled Molina's objection and refused his request for a curative instruction to the jury. Id. at 580-81. 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 the trial court erred in overruling his objection to the Commonwealth's argument 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 the trial court's error violated his right to remain silent and warrants a new trial.²

The Commonwealth contends neither the testimony nor the comment burdened Molina's right to remain silent because neither the United States Supreme Court nor the Supreme Court of Pennsylvania has recognized a protected constitutional interest in the decision to remain silent in a pre-arrest, pre-Miranda³ situation. Appellee's Brief at 19-20 (citing Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005) and Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996)).

The Commonwealth also argues Molina waived this claim because he failed to object to Detective Hawthorne-Bey's testimony when she originally testified Molina refused to go to the police station to discuss the case. The Commonwealth argues that objecting to the Commonwealth's comment on Molina's silence during the summation was not a contemporaneous objection and the claim is waived.

In its 1925 opinion the trial court noted Molina did not object to Detective Hawthorne-Bey's testimony and found the prosecutor's comments "did nothing more than show the extent and focus of the police investigation with regard to Snodgrass' disappearance" and "provide information to the jury which would allow them to assess the credibility of Molina's 'testimony.'" T.C.O. at 30.⁴ The trial court, relying on DiNicola, Bolus and Commonwealth v. Lettau, 955 A.2d 360 (Pa. Super. 2008), ⁵ concluded Molina was not prejudiced from the Commonwealth's comment such as to require a mistrial or sustaining Molina's objection to the comment. T.C.O. at 16-31.

We must first determine the purpose for which the evidence was offered and admitted. See DiNicola, 581 Pa at 337-38, 866 A.2d at 564 (Castille, J., concurring). Because Molina did not testify at trial, the Commonwealth's purpose in eliciting the testimony about his silence from Detective Hawthorne-Bey could not have been to impeach Molina's credibility. Additionally, there is no indication the detective's testimony was necessary to respond to any defense tactic of portraying Molina as cooperative, or to respond to any defense suggestion the police did not fully investigate the case. The evidence was originally offered, as the trial court...