Commonwealth v. Rasheed

JOHNSON, Judge,

concurring and dissenting:

I am in complete agreement with the majority that where a criminal defendant does not take the stand and specifically requests that the court not comment upon his or her silence, it is error for the court to ignore this request and give an instruction regarding the right to remain silent. I respectfully dissent from the determination of the majority that the error was harmless under the facts of this case.

Initially, I question whether the court’s objective in establishing the rule that the court may not comment upon the defendant’s right not to testify after a request that it not do so is not substantially compromised by applying a harmless error standard. I am not at all sure that the effect upon the outcome of trial of a fifth amendment instruction can ever be discerned. Regardless of whether, prior to an instruction, the jury contemplated the defendant’s silence, most assuredly this silence is brought to the jury’s attention once an instruction is given. Where the instruction has been given over explicit request, the very purpose of the rule to protect the defendant’s ability to control the course of his defense is undermined.

We must recognize that the error here stands in a different posture than most that we review. In most cases, the court commits an error to which the defense then objects. Some prejudice ordinarily inures, even if de minimis in character. Thus, an inquiry into whether the error was harmless is appropriate because the error, while presum *304 ably unavoidable,, may not have been one that affected the verdict.

By contrast, we now address a situation where the defense makes his or her request known in advance. Without counsel’s explicit request that the court not give a fifth amendment instruction, no error exists. Where such a request is made, all prejudice to the defendant may be avoided entirely simply by honoring it. From the many cases of other jurisdictions in which a fifth amendment instruction given contrary to the defendant’s request is considered error, I find few situations in which ignoring the request was proper. In the cases in which the trial court ignored the defendant’s request, the defense, by its own actions, had rendered the request superfluous. In Hunter v. State, 492 N.E.2d 1067, 1069 (Ind.1986), a defendant objected to his co-defendant’s request to have a fifth amendment instruction. The trial court, observing that the co-defendant was entitled to an instruction upon request, offered to sever the trial. The defendant refused this solution, leaving the court no choice but to instruct the jury in the joint trial on the right to remain silent over the defendant’s objections. In State v. Larson, 358 N.W.2d 668, 671 (Minn. 1984), defense counsel’s reference during closing argument to the defendant’s silence made necessary the requested instruction.

However, if no such vitiating circumstances exist, we cannot ignore that the court alone is responsible for the error. The message we send to the trial courts by what the majority decides today suggests that requiring the trial court to honor the defendant’s request not to have a fifth amendment instruction has no import unless there is scant evidence to support a conviction. For this reason, I would favor the approach of our sister states of Maryland in Hardway v. State, 317 Md. 160 , 562 A.2d 1234 (1989) and of Massachusetts in Commonwealth v. Buiel, 463 N.E.2d 1172 (Mass.1984) requiring that a fifth amendment instruction, when defendant has specifically requested the court not to give one, be considered reversible error.

*305 Of even more concern to me is the majority’s application of the harmless error standard under the facts presented. If there were a circumstance in which the giving of a fifth amendment instruction over objection could be found harmless, this is not the case.

The majority correctly articulates the harmless error standard. Majority Op. at 285-287. However, the majority’s analysis then fails to follow the requirements of Commonwealth v. Story, 476 Pa. 391 , 383 A.2d 155 (1978). The analysis set forth in Commonwealth v. Story, supra has been applied to determine whether an erroneous jury instruction is harmless. Commonwealth v. Whiting, 358 Pa.Super. 465, 476-478 , 517 A.2d 1327, 1333-1334 (1986). In order to find that an error is harmless, the evidence of guilt must be so overwhelming that the error pales by comparison. Commonwealth v. Story, 476 Pa. at 412 , 383 A.2d at 166 . If honest, fair minded jurors might very well have brought in not guilty verdicts, an error cannot be harmless simply because there also happens to be overwhelming evidence. Commonwealth v. Story, 476 Pa. at 413 , 383 A.2d at 166 . We must determine whether an error is harmless by scrutinizing the entire record, according weight only to uncontradicted evidence. Commonwealth v. Story, 476 Pa. at 413, n. 24 , 383 A.2d at 166, n. 24 .

It is irrelevant that the defendant has not challenged the sufficiency of the evidence or that the evidence is in fact sufficient to sustain the verdict. An analysis based upon the sufficiency of the evidence is an entirely different process which by its very nature considers evidence which has no place in determining whether an admitted error is harmless. “While we view evidence in the light most favorable to the Commonwealth in testing sufficiency, and thus resolve ambiguities and disputes in the Commonwealth’s favor, ... in testing whether the evidence is overwhelming, those same ambiguities and disputes are crucial to the determination of whether the evidence compelled the result reached.” Commonwealth v. Cherry, 474 Pa. 295, 307, n. 12 , 378 A.2d 800, 806, n. 12 (1977).

*306 The Commonwealth’s case consisted of the complainant’s testimony, the testimony of two corroborating witnesses that the complainant told of the alleged rape, the testimony of the officers who took the report, and physical evidence showing the presence of sperm and blood; the complainant was menstruating at the time of this incident. To show that sexual intercourse was non-consensual, the complainant testified that she was forced to have sex at knife point. The knife was never recovered. Rasheed’s defense was consent. The defense did not contest any evidence save the complainant’s testimony and that of one corroborating witness.

The substance of the first corroborating witness’ testimony was that the complainant told her of the rape. However, on cross-examination, defense counsel elicited that the first witness told an investigator, contrary to her own in-court testimony on behalf of the complainant who persuaded her to testify, that she knew nothing about the rape. N.T., September 17, 1987 at 30-31. In addition, both counsel entered into a stipulation that the defense was prepared to produce the testimony of the investigator to this effect. N.T., September 17, 1987 at 54. Thus, this evidence was in fact contradicted and cannot be considered under Story, supra.

The evidence which remains is the second corroborating witness’ testimony that the complainant told him that she was raped and the testimony of the complainant regarding the actual attack, which is uncorroborated with respect to the element of forcible compulsion. Unquestionably, this Commonwealth accepts the sole testimony of the complainant as sufficient evidence of rape. Commonwealth v. Gabrielson, 370 Pa.Super. 271 , 536 A.2d 401 (1988) alloc. denied 518 Pa. 636 , 542 A.2d 1365 (1988); Commonwealth v. Flynn, 314 Pa.Super. 162 , 460 A.2d 816 (1983). What I question is whether this testimony is overwhelming evidence of rape in the context of establishing harmless error. Even if it is overwhelming, then I must question whether an error focusing the jury’s attention upon the defendant’s *307 silence and as a result inadvertently alluding to an absence of credibility under circumstances in which that credibility is crucial to the jury’s determination, is harmless beyond a reasonable doubt.

I am not convinced that the complainant’s testimony, whether considered through her eyes or those of the second witness, constitutes overwhelming evidence; its validity depends solely upon the complainant’s believability. There is no physical evidence to corroborate the complainant’s assertion that the defendant had a knife. And, as is the case in most rape incidents, there were no witnesses to the attack and no witnesses could otherwise testify to the defendant’s intent to have forcible intercourse with the complainant.

By finding that the uncorroborated testimony of the complainant is overwhelming, we in effect act as trier of fact, judging from a cold record that the victim’s testimony was so convincing that the jury would have found the defendant guilty even if the court, by its instruction, had not made them aware that the defendant did not testify on his own behalf. A jury faced with the testimony of the complainant and the court-underscored silence of the defendant may well accord more weight to the complainant’s testimony. Considering a prosecutor’s improper comments on a defendant’s pre-trial silence in Commonwealth v. Turner, 499 Pa. 579, 583 , 454 A.2d 537, 539 (1982), the supreme court observed:

“We would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” Walker v. United States [ 404 F.2d 900 (5th Cir.1968) ], ... It is clear that “[t]he privilege against self-incrimination would be reduced to a hollow mockery if its exercise could be taken as equivalent either to a confession of guilt or a conclusive presumption of perjury.” Slochower v. Board of Higher Ed. of N.Y. [ 350 U.S. 551 , 76 S.Ct. 637 , 100 L.Ed. 692 (1956)].

Commonwealth v. Haideman, 449 Pa. 367, 371 , 296 A.2d 765, 767 (1972) (citations omitted).

*308 Where the prosecutor improperly refers to the defendant’s pre-trial silence, the harm to the defendant occurs because, until the error, the jury had not been aware that the defendant choose to exercise his fifth amendment rights by remaining silent. Where the court and not the prosecutor comments upon the defendant’s in-court silence, the harm to the defendant does not necessarily flow from the jury’s unawareness that defendant has chosen not to testify, but rather from the jury’s heightened awareness that the defendant has chosen to remain silent. In the latter case, it is more difficult to evaluate the effect of the error upon the outcome of trial. However, it is precisely because we are unable to evaluate this effect that there exists a reasonable possibility that the error could have affected the trial’s outcome.

In cases in which the credibility of the victim and defendant are pivotal to the jury determination, the trial court should be all the more cautious that it does not make statements which reflect upon the credibility of either. C.f Commonwealth v. Anskate, 221 Pa.Super. 122 , 289 A.2d 156 (1972). Rasheed did not testify, and nobody asserts that the trial court commented directly upon his credibility. However, there is sense to Rasheed’s argument that the court’s instruction on his fifth amendment right not to testify highlighted the fact that he did not testify, which in turn may have triggered “a confession of guilt or a conclusive presumption of perjury”, Turner, supra, in the jury’s mind. Given the lack of corroborating evidence that this incident involved forcible compulsion, I am unable to conclude beyond a reasonable doubt that the jury would still have found the defendant guilty if it had not been reminded of the defendant’s silence. I would remand for a new trial. Hence, my dissent.