Post-Miranda Silence; Harmless Error

Commonwealth v. Rivera, 255 A.3d 497 (Pa. Super. 2021), allocatur granted Feb. 23, 2022, appeal docket 22 MAP 2022

Jonathan Rivera was charged with multiple separate sexual assault offenses against children. At trial, following the defense’s questioning of Pennsylvania State Trooper Christopher Higdon, the Commonwealth asked the trooper if Rivera, having been read his Miranda warnings after his arrest, denied the charges against him. Over defense counsel’s objection, the trooper testified that Rivera did not deny committing the offenses and that Rivera wished to remain silent. The jury acquitted Rivera of some of the offenses and found him guilty of the remaining ones.

Rivera appealed arguing that:

he is entitled to a new trial because the court admitted evidence of his post-arrest and post-Miranda silence, in violation of his constitutional rights to remain silent under the 5th and 14th Amendments of the United States Constitution, and Article 1, Section 9 of the Pennsylvania Constitution. See Appellant’s Brief, at 31-43; see also Appellant’s Reply Brief, at 1-15. Specifically, Rivera argues that the court permitted the Commonwealth to place evidence into the record in contravention of our Supreme Court’s decision in Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), wherein our Supreme Court stated that, to admit evidence of the defendant’s post-arrest silence:

[T]he Commonwealth must seek to impeach a defendant’s relation of events by reference only to inconsistencies as they factually exist, not to the purported inconsistency between silence at arrest and testimony at trial. Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when[,] in fact[,] he remained silent.

Id. at 539-40 (citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)) (emphasis added).

Rivera claims that his counsel’s questioning of Trooper Higdon, on cross-examination, inquired into the completeness of the Trooper’s pre-arrest investigation as well as the Commonwealth’s bases for seeking Rivera’s arrest, rather than inquired into whether Rivera denied the allegations against him at the time of his arrest. Restated, Rivera claims that the Commonwealth improperly relies on the defense question that related to Rivera’s pre-arrest statements in asserting that a factual inconsistency existed at trial regarding Rivera’s alleged post-arrest denial of the criminal charges against him.

Slip op. at 9-10.  Relying on the Supreme Court’s decision in Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242 (1998), where the Court found the prosecutor’s reference to the defendant’s post-arrest silence was a “fair response” and did not violate the defendant’s constitutional right to remain silent where the defendant raises a factual inconsistency at trial, the Commonwealth countered that “Rivera’s testimony attacked the thoroughness and fairness of its investigation into his case, raising a factual inconsistency, and thereby opened the door to ‘fair response.’” Slip op. at 10.

Superior Court found that the trial court erred in admitting trooper’s testimony regarding defendant’s post-Miranda silence, but concluded that the Commonwealth met its burden of proving the error was harmless because the trooper’s reference was “brief and contextual” and “such reference was not relied upon as substantive evidence of Rivera’s guilt” so as to “deprive Rivera of the fundamentals of a fair trial.” Slip op. at 15.

The Supreme Court granted allocatur to consider the following issue:

Whether prejudice is presumed from the improper use at trial of post-arrest, post-Miranda silence, requiring the Commonwealth to show beyond a reasonable doubt that the error did not affect the verdict—or whether, as the Superior Court held, the standard that governs the use of pre-arrest silence, from which prejudice is not presumed, also governs constitutional harmless error from the improper use of post-arrest, post-Miranda silence?


For more information, contact Kevin McKeon or Dennis Whitaker.