[J-9-2013][M.O. – Baer, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v.**

**SHATAAN ADAMS,**

**Appellant :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 58 MAP 2012**  **Appeal from the Order of the Superior Court entered on 1/20/12 at No. 2464**  **EDA 2009 which vacated/remanded the judgment of sentence of Delaware**  **County Court of Common Pleas, Criminal Division, entered on 7/14/09 at**  **No. 23-CR-0002312-2008**

**ARGUED: September 10, 2013**

DISSENTING OPINION

MR. JUSTICE SAYLOR DECIDED: November 20, 2014 **Because I would conclude that the reference to Appellan t’s pre-arrest silence**  **violated Article 1, Section 9 of the Pennsylvania Con stitution, and that the error was not**  **harmless, I respectfully dissent. As explained in the companion case of Commonwealth v.**  **Molina, ___ Pa. ___, ___ A.3d ___ (2014) (Opinion Announcing Judgment of**  **the Court), the recent decision in Salinas v. Texas, ___ U.S. ___, 133 S. Ct. 2174 (**  **2013), established that, where the defendant does not expressly invoke his privilege against**  **self-incrimination prior to his arrest, no Fifth-Amendment right attaches. However –**  **and again, for reasons expressed in the Molina lead opinion – I would find t**  **hat Article I, Section 9 of the Pennsylvania Constitution provides greater protection.**  **Thus, in my view the trial court [J-9-2013][M.O. – Baer, J.] - 2** 

**erred under that provision in permitting introduction of Appellant’s refusal to speak with**  **the police. Notably, in this respect, Appellant did n ot testify at his trial, and hence, his**  **pre-arrest silence lacked any impeachment value. I am also unconvinced by the lead opinion’s reliance on**  **an exception pertaining to evidence introduced for another purpose, such as exp**  **laining the sequence of the investigation. Indeed, I find such a proposition to b**  **e a mere pretext in the context of the present matter, as it seems readily apparent that, in**  **the circumstances, the investigating officers would have sought to obtain Appellant’s DNA e**  **ven if he had affirmatively professed his innocence. Thus, I see no logical connection**  **between Appellant’s refusal to speak and the investigating officers’ request for a D**  **NA sample. As such, I disagree with the lead opinion to the extent it considers Appe**  **llant’s refusal to speak as constituting “foundational evidence demonstrating how**  **the police came to obtain [Appellant’s] DNA[.]” Opinion Announcing the Judgment**  **of the Court, slip op. at 4, 6. In this regard, I note that the Commonwealth could just a**  **s easily have elicited that the investigating officers went to Appellant’s residence, id**  **entified themselves as a law enforcement officers, informed Appellant that his name**  **had arisen in the investigation, and asked Appellant to provide a DNA sample. It seems**  **unlikely the jury would have wondered why they would seek to obtain such a sample unl**  **ess Appellant had first refused to speak with them.**  **1**

**1 Because the Commonwealth’s burden is limited to addu**  **cing facts sufficient to demonstrate that the defendant committed all elements**  **of the offense(s) charged, I also question the relevancy of information tending to expl**  **ain why the police did what they did, unless the investigation itself is at issue in the case**  **. See, e.g., Commonwealth v. Jones, 540 Pa. 442, 451, 658 A.2d 746, 751 (1995) (sug**  **gesting that information about the police investigation was relevant to answer defense**  **counsel’s pointed attack upon the adequacy of that investigation). I am therefore**  **particularly circumspect about permitting the Commonwealth to utilize the course-of-**  **the-investigation as a blanket excuse for introducing prejudicial material that would**  **otherwise be inadmissible. [J-9-2013][M.O. – Baer, J.] - 3** 

**Because I would find trial error, I would also reach t he question of whether the** 

**error was harmless. As set forth in Commonwealth v. You ng, 561 Pa. 34, 748 A.2d 166**  **(1999), an error will be deemed harmless if: (1) th e error did not prejudice the**  **defendant or the prejudice was de minimus; or (2) the erroneously admitted evidence**  **was merely cumulative of other untainted evidence which was substantially similar to**  **the erroneously admitted evidence; or (3) the proper ly admitted and uncontradicted**  **evidence of guilt was so overwhelming and the prejudici al effect of the error was so**  **insignificant by comparison that the error could not hav e contributed to the verdict. The**  **Commonwealth bears the burden of proving harmlessness b eyond a reasonable doubt.**  **See id. at 85, 748 A.2d at 193.**

**The second element of the test is not at issue in this case , as there is no**  **contention that the evidence of Appellant’s pre-arrest silence was cumulative of other**  **proofs. As for the first prong, I believe that the pr ejudice was not de minimus. To the**  **contrary, the Commonwealth argued that Appellant’s gu ilt should be inferred from his**  **refusal to cooperate with the police in the pre-arrest timeframe. In particular, after**  **defense counsel suggested various reasons consistent with inn ocence why Appellant**  **might not have wished to speak with the police, see Com monwealth v. Adams, 39 A.3d**  **310, 320 (Pa. Super. 2012) (quoting N.T., May 8, 20 09, at 37-39), the Commonwealth**  **responded:**

**But [Appellant] takes the odd step. He wants to – po lice say hey, look,**  **you’ve been implicated in a murder. You want to tal k to us? He doesn’t**  **remain silent. He chooses to talk. And he doesn’t say you are out of your**  **mind. I was at this party. It was a month later. I’ m at this party, I was**  **having a great time all day. I remember it was Big Tome’s house. He**  **didn’t say that. He says I don’t have anything to say to you. He chooses**  **not to speak and he chose to say that. He didn’t choose to say, whoa, I**  **got an alibi. No prison for me. You’re not catching me on a murder rap.**  **He says I have nothing to say to you. [J-9-2013][M.O. – Baer, J.] - 4** 

**Id. at 315 (quoting N.T., May 8, 2009, at 112-13). The lead opinion discounts the relevance of this aspect o**  **f the trial on grounds that Appellant himself sought to explain such silence dur**  **ing his summation, see Opinion Announcing Judgment of the Court, slip op. at 3-4 n.3;**  **see also Adams, 39 A.3d at 320 (suggesting Appellant’s counsel “made a tactical decision” t**  **o comment on Appellant’s pre-arrest silence during his summation); cf. Opinion An**  **nouncing the Judgment of the Court, slip op. at 10-11 (indicating that the referen**  **ce to Appellant’s silence was “contextual and brief,” and that “guilt [was] not imp**  **lied”). It seems to me, however, that Appellant was left with no real choice but to attempt**  **such an explanation after his objection to the pre-arrest silence testimony was overru**  **led. Thus, the trial court’s error led to the need for such commentary, which in turn open**  **ed the door to the Commonwealth’s responsive argument advocating that the**  **jury infer guilt based on Appellant’s silence – none of which would have occurred**  **if the court had sustained defense counsel’s objection.**  **As for the final prong, the question is not as straight forward as usual, since the**  **specific question on which we granted review is whether, in applying the harmless error**  **doctrine, the Superior Court acted contrary to prevail ing law by considering evidence of**  **guilt that had been contradicted by the defense. See Commonwealth v. Adams, 616**  **Pa. 437, 438, 48 A.3d 1230, 1230-31 (2012) (per curi am). The Commonwealth appears**  **to agree that the intermediate court departed from p recedent, as it urges this Court to**  **alter the harmless-error standard so that an appellate court may consider proofs that**  **have been contradicted by the defense. See Brief for Commonwealth at 10, 25-30. In**  **this regard, Appellant points out that he presented the testimony of an alibi witness that**  **contradicted all of the testimony from the Commonwealt h’s witnesses placing Appellant**  **at the scene of the crime. Notably, the Superior Cour t relied exclusively on this latter** **[J-9-2013][M.O. – Baer, J.] - 5**

**testimony (as opposed to physical evidence) as constituting t he overwhelming evidence**  **of Appellant’s guilt for purposes of its harmless-error inquiry. See Adams, 39 A.3d at** 

**322-23. While the intermediate court described such test imony as “uncontradicted,” id.**  **at 322, in fact it was logically contradicted by the al ibi testimony.**  **2**

**I believe it would be unwise for this Court to alter the harmless-error test in the**  **manner suggested by the Commonwealth, primarily for t he reasons explained in Young.**  **Most notably, it is not within the province of reviewi ng courts to determine the**  **comparative credibility of conflicting evidence. See Y oung, 561 Pa. at 86, 748 A.2d at**  **194 (“Where such factfinding functions are implicated, ap pellate courts are incompetent**  **to choose which side’s evidence is more persuasive.”); accord Commonwealth v.**  **Markman, 591 Pa. 249, 279, 916 A.2d 586, 604 (2007). In summary, then, I would hold that it was error for**  **the trial court to overrule Appellant’s objection to the Commonwealth’s reference**  **to his pre-arrest silence, and that the error was not harmless beyond a reasonable dou**  **bt. Accordingly, since the**

**Court concludes that there was no error and affirms the Superior Court’s order, I**  **respectfully dissent.**

**2 The Superior Court did not mention that an alibi w**  **itness had testified.**