Prosecution may not exploit a non-testifying defendant’s pre-arrest or pre-Miranda warning silence/ burglary merges with second degree murder for sentencing purposes

Commonwealth v. Adams, 2012 PA Super 11, 1/20/12 (30 pages)

 Mr. Adams received some, but not much, relief from the Superior Court in this appeal, the Court vacating his sentence for burglary because it merged with his conviction for second degree murder.  His other arguments, wherein he sought a new trial (for reasons described below) and challenged the sufficiency of the evidence proving his guilt of one of the crimes he was convicted of, were rejected.  The case though does contain a reminder that the Superior Court recently ruled, in Commonwealth v. Molina, 2011 PA Super 237, that the Commonwealth may not use evidence of a defendant’s pre-arrest or pre-Miranda warning silence as evidence of his guilt.

In Mr. Adams’ case the Commonwealth adduced testimony from a detective that when approached during the investigation and before his arrest, Mr. Adams said he had nothing to say to them. Defense counsel objected and was overruled. Mr. Adams did not testify. During closing, defense counsel tried to explain his client’s silence in the face of police questioning, saying he had a right to remain silent. In its closing, the Commonwealth responded that there were other things he could have said if he was innocent. Defense counsel did not object to the closing argument. Mr. Adams asserted on appeal that the mention of his silence at trial coupled with the remarks in the Commonwealth’s closing unfairly prejudiced him. Noting that this argument was waived because there was no objection to the closing argument, the Court went on state that the detective’s reference to Mr. Adams’ silence in itself was not unfairly prejudicial, and that the prosecutor’s comments on his silence were fair response to the defense closing.  I submit that the discussion on the closing argument needs to be taken with a grain of salt before citing it to support one proposition or another in that due to the failure to object to the closing, the Superior Court was not going to grant relief due to the closing alone. That being said, the reference to the holding in Molina, which dates to November, 2011, is useful.

The holding in question states:

We find it of no moment whether the silence occurred before or after the arrest or before or after Miranda warnings were administered. The Fifth Amendment was enacted to protect against self-incrimination, whether they are in custody or not, charged with a crime, or merely being questioned during the investigation of a crime. We clarify that our finding does not impose a prima facie bar against any mention of a defendant’s silence; rather, we guard against the exploitation of appellant’s right to remain silent by the prosecution. We conclude that the government may not use such silence as substantive evidence of guilt when a defendant chooses not to testify, and such use should not be limited to “persons in custody or charged with a crime”; rather, it may also not be used against a defendant who remained silent during the investigation of a crime.

Commonwealth v. Molina, 2011 PA Super 237, *3031 (citations omitted). The holding in Molina itself occurs after a discussion of how other states and federal circuit courts of appeals deal with the issue. It also notes that Article I, §9 of the Pennsylvania Constitution may be interpreted to afford a defendant more rights than the Fifth, Sixth or Fourteenth Amendments. Thus, any objection to references to a defendant’s pre-arrest, pre-Miranda silence should be based on both the Pennsylvania and United States Constitutions.

The case can be found by following the links from here.



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