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Pennsylvania Supreme Court: Testimonial References to Post-Arrest Silence Cannot Be Used Against Defendant at Trial, Pre-Arrest Harmless Error Analysis Does Not Apply

by Anthony W. Accurso

The Supreme Court of Pennsylvania reversed a defendant’s conviction in which his post-arrest silence was mentioned multiple times at trial, and it was not harmless beyond a reasonable doubt. In doing so, the Court reiterated that there is a different harmless error standard for pre-arrest versus post-arrest references to a defendant’s silence when evaluating testimonial references to such silence.

In April 2018, Florencia Mainetto recorded cell phone videos of her daughter and niece accusing Jonathan Rivera of sexual abuse. These videos were presented to Trooper Higdon of the Pennsylvania State Police. Florencia and her sister Katherin brought the girls to the Children’s Advocacy Center of Towanda for formal forensic interviews. The girls were examined, though the advocacy center nurse found no physical evidence that the girls had been abused. Rivera was arrested in June 2018 and was informed of his rights, including the right to remain silent. Under questioning, Rivera said nothing.

The Commonwealth filed a 26-count indictment, and Rivera proceeded to trial. The Commonwealth’s case largely rested on testimony from the children and their mothers, as well as Advocacy Center and medical staff. Rivera’s defense was to deny the allegations, while introducing testimony to convince the jury that Florencia was using the allegations to retain residency in the U.S. because she was afraid her husband would divorce her if he knew she had an affair with Rivera, which would endanger her chances at permanent residency. In short, absent any physical evidence, the trial came down to witness credibility on both sides.

Prior to Rivera’s testimony, the prosecutor interviewed Trooper Higdon. Referring to Higdon’s arrest of Rivera, the prosecutor asked, “after you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?” Trooper Higdon responded in the negative. Over objection by defense counsel, the Superior Court allowed the prosecutor to restate this question three more times, and each time Trooper Higdon reiterated that Rivera did not deny the charges.

The jury returned a split verdict, acquitting Rivera “on the most serious charges,” including rape of a child but convicted him on the 11 remaining counts. Rivera timely appealed, arguing that Higdon’s mention, solicited by the prosecutor, about Rivera’s post-arrest silence violated his right to not incriminate himself. Further, he argued the error was not harmless because Higdon’s testimony occurred before Rivera’s, likely undermining Rivera’s credibility with the jury. The Superior Court panel agreed that the statements were allowed in error but determined that the error was harmless “because the prejudice to Rivera, if any, was de minimis.”

On review, the Pennsylvania Supreme Court disagreed. It noted the Superior Court correctly recognized the constitutional difference between pre-arrest and post-arrest silence, yet it still cited and based its decision on pre-arrest authorities when it ruled that Higdon’s testimonial reference to Rivera’s post-arrest silence was harmless.

Rivera’s brief noted that “most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” Commonwealth v. Haideman, 296 A.2d 765 (Pa. 1972). “For now,” the Court agreed, “it seems sufficient to say, as this court repeatedly has, but most jurors, most lay people, probably suppose that a truly innocent man would deny the charges upon his arrest. Hearing a defendant did not so deny, but instead stayed silent, the logic goes, may lead the jury to conclude or infer the defendant must be guilty. The problem with this, as this court has historically viewed it, is that it effectively penalizes a defendant for exercising a right that the drafters of the Pennsylvania and United States constitutions alike deemed worthy of enshrinement.” Quoting Grunewald v. United States, 353 U.S. 391 (1957).

After having discussed the pre-arrest line of cases relied upon by the Superior Court, the Court acknowledged that “the law concerning pre-arrest silence may be in some flux” and that the state Supreme Court “has struggled to create a uniform rule to govern references to pre-arrest silence,” but no such uncertainty exists with respect to references to post-arrest silence, which “are proscribed.”

The Court discussed the line of cases that protect the right of post-arrest silence not being used against the defendant, beginning with Haideman (reference to a defendant’s post-arrest silence is reversible error), continuing with Commonwealth v. Greco, 350 A.2d 826 (Pa. 1976) (“The law is clear. It is reversible error to admit evidence of a defendant silence at the time of his arrest.”), Commonwealth v. Singletary, 387 A.2d 656 (Pa. 1978) (curative instruction did not excuse admission of testimony regarding post-arrest silence), and finally Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982) (“In theory, we noted, post-arrest silence could be used if the defendant says at trial that he spoke to police when he did not, but otherwise, we reported that a defendant may not be penalized for exercising the right to remain silent.”). The Court summarized the rule of law glean from this line of case as follows: “testimonial references to a defendant’s post-arrest silence is constitutionally off-limits; even a single reference … risks reducing to rubble an entire prosecution.”

Turning to the present case, the Court stated that the four questions-and-answers regarding Rivera’s “post-arrest, post-Miranda silence violated” the foregoing fundamental rule. The Court explained that the defense’s questioning about Rivera’s pre-arrest silence during cross-examination of the prosecution witness did not “open the door for the Commonwealth to ask questions about post-arrest silence.” Thus, there is no doubt that the disputed testimony was admitted in error, the Court ruled.

The Court observed that the resolution of the case hinges on the harmless error analysis and utilized the four-prong test from Commonwealth v Hairston, 84 A.3d 657 (Pa. 2014). The error here was substantial instead of “de minimis;” the evidence admitted in error was not “cumulative of other untainted evidence;” nor was the uncontroverted evidence against Rivera overwhelming, since it was all testimonial and boiled down to the jury’s perceived credibility of the witnesses including Rivera.

The Court summarized the fact-intensive rational for its conclusion that the admission of the disputed testimony was not harmless as follows: “the constitutional right at stake; our case law; the repeated, intentional, and court-sanctioned nature of the inquiry; the centrality of credibility in this case; the extent to which these questions probably undermined Rivera’s credibility; the lack of physical evidence; the absence of an adequate curative instruction and the split verdict.”

Accordingly, the Court awarded Rivera a new trial. See: Commonwealth v. Rivera, 296 A.3d 1141 (Pa. 2023).  

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