Pa. justices to consider issue of pre-arrest silence as evidence

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The state Supreme Court has taken up a case involving whether prosecutors may refer to a defendant's pre-arrest silence at trial.

The case of Commonwealth v. Adams is one of two state Superior Court rulings within the last year that have landed on opposing sides of the issue, and there is no Supreme Court precedent that directly addresses the question of whether a nontestifying defendant's pre-arrest silence may be used as substantive evidence of his or her guilt.

The other Superior Court case, Commonwealth v. Molina, addresses that issue and has been appealed to the high court.

Appellate courts across the country have been divided on whether prosecutors ought to be able to mention a defendant's silence at trial, since that "evidence" has the potential to imply guilt or, at the very least, an uncooperative defendant.

In Adams, prosecutors made a narrow reference to defendant Shataan Adams' pre-arrest silence to "demonstrate the nature and focus of the investigation" that eventually led to convictions of second-degree murder and several other crimes.

Additionally, when Adams' own attorney referred to his client's silence in his closing arguments, he "opened the door" to prosecutors doing the same, the court said.

The prosecutor's comments were not couched in such a way as to suggest silence was a tacit admission of guilt, the court found, making it distinguishable from Commonwealth v. Molina, which originated in Pittsburgh.

"In Molina, the only references to the defendant's pre-arrest silence were made by the commonwealth, [which], on its own initiative, invited the jury to draw an adverse inference from the defendant's silence," Superior Court Judge Cheryl Lynn Allen said.

In Molina, the Superior Court found that prosecutors may not use a nontestifying defendant's pre-Miranda silence as substantive evidence of his or her guilt.

The panel, ruling 5-4, ultimately concluded that such use infringes on a defendant's Fifth Amendment right to be free from self-incrimination.

Molina, in 2006, was found guilty of killing Melissa Snodgrass, who had been reported missing on Sept. 7, 2003, and whose mummified remains were found on March 9, 2004, under a pile of debris in Molina's home in Pittsburgh's Spring Garden neighborhood.

During the closing argument of the trial, the prosecutor told the jury that it should take into consideration that Molina refused to meet and speak with a detective investigating the case before his arrest.

Molina appealed his conviction, arguing that the prosecution improperly used that against him as "substantive evidence of his guilt."

The high court has yet to grant or deny a petition for review from Allegheny County prosecutors.

While pre-Miranda silence is still a matter of legal debate, it is well settled that post-Miranda silence is constitutionally protected under the 14th Amendment's due process clause.

Even if the state's references to Adams' silence were impermissible, the court, citing testimony tying Adams to the scene of the crime, found them to result in harmless error.

"Here, unlike Molina, the commonwealth presented ample evidence from various sources that [Adams] was at the scene of the shooting and participated in the commission of the crime," Judge Allen said.

That testimony included an eyewitness account from the wife of the man Adams was convicted of murdering, who said she immediately recognized him as one of the perpetrators.

For Adams' attorney, the Superior Court's "harmless error" analysis could be the reason behind the court's granting of allocatur. Adams was jailed for his role in drug-related gang killings near Philadelphia.

Either way, Media, Pa., attorney William P. Wismer said the high court will use the Adams case, and possibly the Molina case, to review, update and clarify the entire area of the law.

"I think they're just going to address everything," Mr. Wismer said. "Is there a right to not incriminate oneself that attaches before arrest? What sort of comments would a defendant have to make as interpreted as invoking his right to remain silent? What action would the state have to take at trial in order to violate that right?"

The court could either rule that a mere mention of silence is enough, or that prosecutors must try to affirmatively connect it to guilt, Mr. Wismer said.

Earlier this year, the U.S. Supreme Court declined to hear the appeal of a Florida man, serving 12 years in prison, who says his pre-arrest silence during police questioning was used as evidence against him.

legalnews

Ben Present: bpresent@alm.com or 215-557-2315. To read more articles like this, visit www.thelegalintelligencer.com.


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