Commonwealth v. Molina

• Decision Date: 20 November 2014
• Docket Number: No. 25 WAP 2012,J-55-2013,25 WAP 2012
• Court: United States State Supreme Court of Pennsylvania
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellant v. MICHAEL MOLINA, Appellee

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
MICHAEL MOLINA, Appellee

J-55-2013
No. 25 WAP 2012

SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

ARGUED: September 10, 2013
NOVEMBER 20, 2014

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

Appeal from the Order of the Superior Court entered November 9, 2011 at No. 1948 WDA 2007, reversing and 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 CP-02-CR-0009547-2004 and remanding.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

MR. JUSTICE BAER

We granted review in this case to consider whether a defendant's right against self-incrimination, as protected by the federal and Pennsylvania constitutions, is violated when the prosecution utilizes a non-testifying defendant's pre-arrest silence as substantive evidence of guilt. After reviewing this issue of first impression, to which the United States Supreme Court has not definitively spoken, we agree with the Superior Court, as well as several of our sister courts, that the use of pre-arrest silence as substantive evidence of guilt violates a non-testifying defendant's constitutional rights. As discussed below, we would affirm the order of the Superior Court remanding for a new trial. However, given that the status of federal jurisprudence is uncertain, we base our holding upon the right against self-incrimination set forth in Article I, Section 9 of the Pennsylvania Constitution.

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In this case, a jury convicted Michael Molina (Defendant) of third degree murder and related crimes resulting from the savage beating of Melissa Snodgrass (Victim), apparently as a result of drug debts owed by Victim to Defendant. On September 7, 2003, Victim told her mother, with whom she lived, that she was leaving the house to run some errands. When she did not return, Victim's mother reported her disappearance to the Missing Persons Unit of the Pittsburgh Police Department. Six months later, her decomposed remains were found under moldy clothing and other debris in the basement of a house in the Spring Garden section of Pittsburgh in which Michael Benintend, one of the prosecution's primary witnesses, resided during the relevant time period.

The issue presented to this Court requires consideration of the Missing Persons Unit detective's testimony and the prosecutor's closing arguments regarding the early days of the investigation into Victim's disappearance. Following a lead that Defendant was holding Victim against her will, the Missing Persons Unit detective assigned to the case went to Defendant's house two days after Victim's disappearance. Pamela Deloe, a second primary prosecution witness, answered the door and asserted that neither Victim nor Defendant were at the house. Accordingly, the detective left her card and asked that Defendant call her. Later that day, Defendant called the detective.

The detective testified regarding the phone call from Defendant:

I asked him -- well, before I could even ask him if he was aware of [Victim] 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.

Notes of Testimony ("N.T."), Dec. 14-20, 2006, at 480. The detective then inquired as to when Defendant had last seen Victim. He initially responded that he had not seen

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her for a year and a half, but then he immediately contradicted his statement, claiming instead that he had not seen her for three months. Subsequent to this contradiction, the detective testified that she asked him to come to the police station to speak to her and he refused:

A. 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.

Q. So this contact that you had with him was over the telephone. Is that what you're saying?

A. Yes, it was over the telephone.

Id. at 481.¹ Defense counsel did not object to the reference to Defendant's refusal to come into the office. In due course, the prosecution concluded its questioning of the detective, and defense counsel did not pursue that issue in his cross-examination. Id. at 482-85.

During closing argument, the prosecutor accentuated Defendant's refusal to go to the police station, and when defense counsel objected, the prosecutor stated before the jury that it was not improper to comment on Defendant's pre-arrest silence:

[Prosecutor:] Look also at what happened in terms of the police investigation in this matter. Three days after this young lady goes missing, three days after she goes missing, detectives are already knocking on the defendant's door because of something they heard, maybe he was holding this person against their [sic] 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

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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 officer 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?

[Defense Counsel]: Your Honor, I have to object to that. That's improper comment, absolutely improper.

[Prosecutor]: Your Honor, pre-arrest silence is not improper comment at all.

Id. at 579-80.

In a brief sidebar discussion, defense counsel requested that the jury be instructed to disregard the statement, which the defense viewed as "absolutely improper;" "If somebody wants to assert their right not to cooperate and talk to the police, that cannot be commented upon." Id. at 580. Notably, defense counsel did not seek a mistrial at this juncture. The prosecution responded "there's a sharp line drawn between pre-arrest silence and post-arrest silence." Id. at 581. The court allowed the prosecution to proceed without issuing any instructions. Id. The prosecutor further emphasized the silence following the sidebar, stating, "Factor that in when you're making an important decision in this case as well." Id.

The jury found Defendant not guilty of first-degree murder but convicted him of third-degree murder and unlawful restraint based substantially on the eyewitness testimony of Benintend and Deloe, who claimed to have witnessed Defendant brutally beat Victim to death.² The trial court sentenced him to twenty to forty years of

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imprisonment.³ Defendant appealed the judgment of sentence, raising four issues in his Pa.R.A.P. 1925(b) concise statement of issues presented on appeal, including the claim currently before this Court: whether the trial court erred in not sustaining the objection to the prosecution's reference to Defendant's pre-arrest silence and in not declaring a mistrial.

In its Pa.R.A.P. 1925(a) opinion, the trial court considered precedent from this Court and the United States Supreme Court regarding the right against self-incrimination, which will be discussed in detail below, and highlighted the distinction between pre- and post-arrest silence. After reviewing this precedent, the trial court briefly addressed whether it erred in allowing the prosecutor's statements during closing arguments and also considered whether it should have granted a mistrial sua sponte, because of the statements. The court opined that the prosecutor "did nothing more than talk about the police investigation and provide information to the jury which would allow them to assess the credibility of [Defendant's] 'testimony.'" Tr. Ct. Op. at 30. The court used the term "[Defendant's] 'testimony'" to describe the detective's summary of her phone call with Defendant, as Defendant did not take the witness stand in his own defense during trial. The trial court also concluded that it did not err in not granting a mistrial sua sponte, concluding that the detective's testimony did not prejudice Defendant. The court attempted to distinguish the facts of this case from those in which Fifth Amendment protection has been granted, observing that when Defendant spoke to

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the detective "the police were unsure if any crime had been committed for which [Defendant] could have been charged." Tr. Ct. Op. at 31.

Defendant appealed to the Superior Court challenging the use of his pre-arrest silence as substantive evidence of guilt. A three-judge panel initially heard the appeal and reversed Defendant's conviction. Upon the Commonwealth's motion, the court granted reargument en banc, and again reversed the trial court, concluding that Defendant's state and federal rights against self-incrimination were violated when the Commonwealth "urge[d] the jury to use a non-testifying defendant's pre-arrest, pre-Miranda[⁴] silence as substantive evidence of his guilt." Commonwealth v. Molina, 33 A.3d 51, 53 (Pa. Super. 2011) (footnote omitted).

The Superior Court recognized that Defendant's argument was limited to claiming that the prosecutor's closing argument violated his right against self-incrimination and did not contend that the detective's testimony itself was improper.⁵ It noted that the detective's testimony merely provided an account of the extent of the police investigation of Victim's disappearance as it related to Defendant and was not used to imply an admission of guilt at the time of the testimony. In contrast, the court opined that the prosecutor used the testimony in closing as substantive evidence of Defendant's guilt. Id. at 56, 61.

Prior to determining whether this use violated Defendant's rights, the Superior Court conducted a thorough review of the caselaw relating to the right...