Commonwealth v. Garcia

Justice CASTILLE

concurring.

I join the Majority Opinion. I write separately only to note my agreement with the Majority’s notation that the viability of the per se rule announced in Commonwealth v. Edwards, 535 Pa. 575 , 637 A.2d 259 (1993), a rule which is not of constitutional dimension and which was not even applied in the Edwards case, is subject to serious question. See Majority op. at 167 n. 9, 888 A.2d at 638 n. 9. Indeed, in my view, the Edwards rule should be disapproved. One aspect of the ill-wisdom of the inflexible Edwards rule is illustrated by this very case, which involves a scenario predicted by Mr. Justice Cappy (now Chief Justice) in his Concurring and Dissenting Opinion in Edwards. See 637 A.2d at 261 n. 1 (Cappy, J., joined by Flaherty, J., concurring and dissenting).

Whether the defendant asks for a no adverse inference charge or not, the jury cannot help but notice when the defendant fails to testify, and it is perceived human nature to think unfavorably of silence in the face of a criminal prosecution. A decision not to have the court instruct the jury to draw no adverse inference from the defendant’s silence is a risky trial strategy. It is difficult to see how any defendant in a circumstance where the court orders the jury not to draw the logical lay inference that results from silence in the face of evidence of guilt can be said to have been prejudiced. Perhaps there are unusual instances where the particular facts of a case will warrant counsel in not wanting the jury so informed — though such a case is hard to imagine — and the charge should not be forced upon counsel in that instance. *170 But such exceptional circumstances are what appeals are for, and the ill-wisdom of the Edwards rule is that it allowed the unusual case to become the “tail that wags the dog.” To grant relief irrespective of actual prejudice, in instances such as those contemplated by Edwards , may forestall appeals, but at the cost of criminal justice.

The Majority is correct that, strictly speaking, we need not overrule Edwards in order to dispose of this appeal. But, on the other hand, the continuing existence of Edwards as not-yet-overruled precedent will make it unlikely that a better opportunity will ever arise. See Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185 , 1193 n. 2 (2004) (Castille, J., joined by Eakin & Baer, JJ., concurring) (agreeing that reconsideration of problematic rule should await case where rule is actually challenged, but noting that “I write to outline the problem because, faced with the precedent and the effect of stare decisis, the Commonwealth is unlikely to forward such a challenge before the Court, or some of its members, acknowledge the difficulty”). For the pristine case to arise, a trial judge in a single-defendant case will have to flout Edwards . Indeed, the issue before us today arose only because there were multiple defendants with differing views on the instruction. Here, unlike in Martin, the Commonwealth has challenged the rule, and the problem is apparent. Moreover, since Edwards announced this unwise per se rule in a case where the rule itself was not applied, there would be a certain symmetry in the Court correcting the mistake expeditiously here, so as to better ensure the cause of justice sooner rather than later.

Justice EAKIN joins this concurring opinion.