stating, “[t]he testimonial reference to [a defendant’s] post-arrest silence, the absence of an adequate cautionary instruction, and the further exploitation of [the defendant’s] post-arrest silence during closing argument constitute reversible error and mandate a new trial”
How later courts described this case
- stating, “[t]he testimonial reference to [a defendant’s] post-arrest silence, the absence of an adequate cautionary instruction, and the further exploitation of [the defendant’s] post-arrest silence during closing argument constitute reversible error and mandate a new trial”
- prejudice from failure to issue curative instructions after prosecutor’s reference to post-arrest silence was compounded by prosecutor’s exploitation of Appellant’s silence during closing argument
- even where the accused responds to some questions at the time of arrest, it is impermissible to reveal to the jury those questions to which the defendant chose to remain silent
- quoted with approval in Commonwealth v. Duffey, 573 Pa. 186, 203 , 855 A.2d 764, 774 (2004)
Written by the judges who cited it.
The opinion
CASTILLE, Justice,
dissenting.
The majority has granted a new trial based on their conclusion that on two occasions the prosecution improperly referred to Appellant’s post-arrest silence at trial. I believe that the real question presented is whether those remarks were improper based on the evidence and arguments presented concerning Appellant’s post-arrest statements. Because the majority confuses post-arrest silence with post-arrest statements made after defendant had waived his right to remain silent, I must respectfully dissent.
*393 The pertinent facts are that shortly after a verbal fight with the victim Robert Kauffman, at a bar where both had been drinking, Appellant drove his car over a curb and smashed the victim against the wall causing serious bodily injury. 1 Appellant, who was accompanied by his girlfriend Pat Little, immediately drove away. Later that evening, Ms. Little, called the police to let them know she had been involved in an incident and that she would like to have a police officer come to her house to talk about it. At about the same time, police had learned of the Appellant’s whereabouts and Appellant was arrested. After being given his Miranda 2 warnings both verbally and in writing, Appellant expressly waived his right to remain silent by executing a waiver form. The waiver form stated:
I fully understand the statement warning me of my rights, and am willing to answer questions. I do not want an attorney, and I understand that I may stop answering questions at anytime during the questioning. No promises have been made to me, nor have I been threatened in any manner.
After stating, “[i]’ll tell you about the incident,” Appellant revealed to Trooper Harriman, that he and his girlfriend were at the hotel bar that evening and that although he drank six beers, he was not intoxicated. He also stated that he did not know the other individuals at the bar, but that they had words, and that when they left the bar, the individuals were waiting for Appellant who was accompanied by Ms. Little. Shortly after divulging this information, Appellant invoked his right to remain silent.
At trial, Appellant for the first time testified that the incident was an accident. 3 The prosecution cross-examined *394 Appellant regarding why his initial statements to the police following waiver of his rights about the incident did not include the version he now testified to at trial. Specifically, the prosecution asked, “During the course of that conversation, Trooper Harriman, did [defendant] tell you that this incident was an accident?” to which Trooper Harriman replied in the negative. T.T. at 141 (emphasis added). Despite the fact that this inquiry specifically referred to the conversation between Appellant and Trooper Harriman before he reasserted his right to remain silent, the majority nevertheless holds that the prosecution’s examination regarding the omission of such information in his initial police statement was a violation of Appellant’s right to remain silent. However, the prosecution merely attempted to explore factual inconsistencies between the Appellant’s previous version of the events and his testimony at trial, not his silence upon his arrest. As demonstrated by the record, the prosecution referred exclusively to Appellant’s post-arrest statements, not to his post-arrest silence following those ■ statements.
Indeed, no reference was made to Appellant’s exercise of his right to remain silent until defense counsel cross-examined the trooper and specifically inquired whether such a privilege had been asserted at some point. By narrowing the scope of its inquiry to those statements made after appropriate warnings and before the invocation of the right to remain silent, the Commonwealth did not breach the parameters of the post-arrest silence rule which is intended to prevent the jury from believing the accused’s silence constitutes an admission of guilt. Commonwealth v. Turner, 499 Pa. 579 , 454 A.2d 537 (1982) (reference to defendant’s silence at arrest is substantially prejudicial).
In reaching its holding, the majority relies upon several cases which are inapposite from the circumstances at hand because the cases involve only situations wherein the accused *395 remained completely silent after arrest. Commonwealth v. Easley, 483 Pa. 337 , 396 A.2d 1198 (1979); Commonwealth v. Greco, 465 Pa. 400 , 350 A.2d 826 (1976); Commonwealth v. Turner, 499 Pa. 579 , 454 A.2d 537 (1982); Commonwealth v. Clark, 533 Pa. 579 , 626 A.2d 154 (1993). The majority confuses the well-settled premise that the Commonwealth may not make reference to one’s silence at arrest, with the right to cross-examine regarding post-arrest statements. Commonwealth v. Turner, 499 Pa. 579 , 454 A.2d 537 (1982). Indeed, none of these cases involve attempts by the prosecution to cross-examine the appellant regarding inconsistencies between appellant’s trial testimony and pretrial statements, to police, which is the case here.
We have repeatedly held that the right to remain silent is not violated where a prosecutor attempts to impeach a defendant’s credibility by establishing an inconsistency between the appellant’s post-arrest statement and his trial testimony. Commonwealth v. Beavers, 492 Pa. 522 , 424 A.2d 1313 (1981); Commonwealth v. Stetler, 494 Pa. 551 , 431 A.2d 992 (1981). Here, the Commonwealth was properly comparing the accused’s “new” defense at trial with his post-arrest statement, thereby demonstrating an inconsistency with Appellant’s original account of the incident. It would be an absurd result to allow a defendant, who has waived the right to remain silent, to furnish statements to the police and subsequently permit him to hide behind the shield of the Fifth Amendment and not be questioned about the contents of those statements that he did make. We stated, “[o]nce a suspect elects to make responses, the import of those responses are properly available for the jury’s consideration. In such a case the right to remain silent is not implicated.” Commonwealth v. Jermyn, 516 Pa. 460, 476 , 533 A.2d 74, 81 (1987) (emphasis added). The majority maintains that it is irrelevant whether a defendant elects the right to remain silent at the outset or reasserts it at a later time. I agree. However, to suggest that we will also safeguard statements made after the defendant has renounced this right is beyond the protections guaranteed by the Fifth Amendment. Therefore, once Appellant chose to *396 comment on the events surrounding the incident to whatever extent he so chose, he elected to have those statements used against him, including any reasonable inference drawn therefrom.
Appellant also contends that the prosecutor committed error when the prosecutor referred to Appellant’s post-arrest silence during closing arguments. During summation, the prosecution argued that it would be reasonable to conclude that a person under similar circumstances would immediately declare that the incident was an accident. In Commonwealth v. Lawson, 519 Pa. 175, 190 , 546 A.2d 589, 596 (1988), we stated, “that prosecutors are permitted to argue on closing any reasonable inferences arising from the evidence.” The Commonwealth’s argument is a reasonable inference drawn from the fact that Appellant had waived his right to remain silent and made various statements concerning the incident (none of which stated that incident was an accident), before reasserting this right.
Accordingly, for the reasons set forth above, I would affirm Appellant’s judgment of sentence.
. A jury found Appellant guilty of aggravated assault and recklessly endangering another person in accordance with 18 Pa.C.S. § 2702 and 18 Pa.C.S. § 2705 respectively. The question of whether Appellant’s conduct was purposeful or accidental was a main issue at trial.
. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
. According to Appellant’s trial testimony, as he and Ms. Little left the bar to go home, two or three people, including Robert Kauffman, *394 verbally confronted him in the parking lot. Appellant then got inside the car and started the engine. When he attempted to reverse the car, the engine stalled. Appellant put the gear in neutral, restarted the engine while revving it up, and then accidently put the gear in forward, striking the victim.