Commonwealth v. Rivera
| Docket Number | 22 MAP 2022,J-78-2022 |
| Decision Date | 21 June 2023 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. JONATHAN RIVERA, Appellant |
| Court | Pennsylvania Supreme Court |
ARGUED: November 29, 2022
Appeal from the Order of the Superior Court entered May 24, 2021 at No. 1788 MDA 2019 Affirming in Part and Vacating the Judgment of Sentence of the Bradford County Court of Common Pleas Criminal Division, dated September 26, 2019, at No CP-08-CR-0000606-2018 and Remanding for Resentencing.
OPINION
This discretionary appeal allows us to consider harmless error in the context of post-arrest silence. At trial, the prosecutor in this case asked the arresting officer a series of questions about the defendant's post-arrest behavior, particularly whether the defendant denied the charges against him. Over a defense objection, the officer told the jury, four separate times, that the defendant, upon his arrest, stood mute and denied none of the charges. The Superior Court ruled that this testimony was admitted in error but, relying on authorities discussing pre-arrest silence, found it harmless. We accepted review to reiterate that different harmless error standards apply when evaluating testimonial references to a defendant's post-arrest versus pre-arrest silence. Oriented correctly, we conclude that the testimony in this case was not harmless beyond a reasonable doubt. Therefore, we must award the defendant a new trial.
In April 2018, Florencia Mainetto (Florencia) recorded cellphone videos of her daughter (G.R.) and her niece (C.P.), both minors at the time, accusing Appellant Jonathan Rivera (Rivera) of sexual abuse. After sharing these videos with Trooper Higdon of the Pennsylvania State Police, Florencia and her sister, Katherin Mainetto (Katherin), who is C.P.'s mother, brought G.R. and C.P. to the Children's Advocacy Center of Towanda (Advocacy Center) for formal forensic interviews. Trooper Higdon observed these interviews through a window. A nurse at the Advocacy Center then examined G.R. and C.P. but did not find any physical evidence of abuse. Later, two more minors, SC and S.M., made similar allegations against Rivera. Combined, the victims alleged that Rivera abused them between the years of 2009 and 2018.
On June 26, 2018, Trooper Higdon filed a criminal complaint and affidavit of probable cause against Rivera, alleging, inter alia, rape of a child. That day, with an arrest warrant in hand and other officers in tow, Trooper Higdon went to Rivera's house, apprised him of the charges against him, read the Miranda[1] warnings, and placed him under arrest. Upon his arrest, Rivera did not deny the charges; rather, he remained silent-as was his right under the state and national constitutions. See Pa. Const. art. 1, § 9 (); U.S. Const. amend. V (). See generally Watts v. Indiana, 338 U.S. 49, 54 (1949) ().
After the Commonwealth filed a 26-count information against Rivera,[2] the matter proceeded to a jury trial. The Commonwealth's case-in-chief, as the transcripts reflect, was testimony-heavy. The Commonwealth called 11 witnesses over two days, starting with the employee at the Advocacy Center who conducted the forensic interviews. She explained the general method of such interviews but expressed no opinion about the veracity of the allegations. (See Notes of Testimony (N.T.), 8/6/2019, at 28-43.) G.R. testified next. She recounted several instances of abuse, including times where Rivera would play "truth-or-dare" with her and C.P., which, she stated, often ended with him "put[ting] his private in our butt;" an instance of abuse in a vehicle; a time where Rivera showed her and C.P. pornographic videos in a barn; and a situation when she had to be medevacked to a hospital because, she said, Rivera choked her with a lollipop (the lollipop incident). (Id. at 60, 61, 65-66, 67, 70.) The paramedic who responded to the lollipop incident then briefly testified to the incident from his perspective.
Florencia testified next. She said she originally chalked up the lollipop incident to "a kid's mistake" but became suspicious after G.R. told her she had a dream of Rivera "playing with [her and C.P.] with [a] lollipop." (Id. at 130.) Florencia admitted she had an affair with Rivera (who was in a relationship with Katherin at the time) and conceded that she was formerly an undocumented immigrant and did not become a permanent resident until late 2017. Florencia then noted that, after Rivera told her that C.P. and G.R. saw "him naked or whatever" several times, she decided to record the cellphone videos of G.R. and C.P. because she thought "it will help with . . . if I, you know[,] to have evidence." (Id. at 139, 143.) Florencia denied having "coach[ed]" G.R. or C.P. and denied having told either of them "what to say." (Id. at 145, 147.)
Part of defense counsel's strategy on cross-examination involved trying to undermine Florencia's credibility. (See id. at 151 (); id. at 159-60 ( ).) Florencia also conceded that she "falsely" told Katherin she did not have the video of C.P. because Trooper Higdon told her to delete it. (Id. at 168.) C.P. testified to close out the first day of trial; her testimony more or less tracked G.R.'s.
The second day of trial kicked off with testimony from C.P.'s father. He said he noticed C.P. began "acting weird" around the time she was living with Rivera and Katherin but otherwise testified in generalities. (N.T., 8/7/2019, at 6.) After S.C. and S.M. briefly recounted incidents of abuse, S.M.'s mother (Rivera's ex-wife) testified. She discussed the first time S.M. told her Rivera touched her inappropriately and explained how she became involved in the case. Trooper Higdon testified next, and it was during his testimony that the exchange precipitating this appeal occurred.
To provide context for the exchange at issue, during cross-examination of Trooper Higdon, defense counsel focused on the absence of physical evidence indicated by the findings in the reports:
(Id. at 99-100.) The following exchange, which gives rise to the issue now before this Court, occurred immediately on re-direct:
(Id. at 101-02 (emphasis added).) The trial court then addressed the jury: "Okay[,] and just to [defense counsel's] point, that is his right as a defendant, okay, [c]onstitutional [r]ight." (Id. at 102.) Notably, after the prosecutor asked these four questions about Rivera's post-arrest, post-Miranda silence, defense counsel did not request a sidebar, ask for a curative instruction, or move for a mistrial. The trial pressed on with the Commonwealth's final witness, the nurse who physically examined the victims. She noted that she did not "see any physical injuries" on any of the victims but stressed that this does not necessarily rule out abuse. (Id. at 114.) The Commonwealth rested.
To begin his case-in-chief, Rivera called Florencia's husband and his own mother; both testified briefly and...
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