Opinion
599 MDA 2022 J-A13003-23
01-09-2024
COMMONWEALTH OF PENNSYLVANIA v. RONALD JENKINS, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered March 30, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005285-2019
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
BOWES, J.
Ronald Jenkins, Jr. appeals from the judgment of sentence of ten to twenty years of imprisonment imposed after a jury convicted him of rape of an unconscious victim and kidnapping to facilitate a felony. Upon review, we affirm.
On February 14, 2017, the victim and her now-husband, Damon Robinson ("Mr. Robinson"), gathered at their residence with Appellant. N.T. Trial, 1/25-27/22, at 34. During the evening, all three consumed alcoholic beverages. Mr. Robinson began to feel dizzy and went to bed. Id. at 34-35. The victim, who stayed up with Appellant, felt different and not "regular" as the evening progressed. Id. at 80. Appellant refused to leave the residence because Mr. Robinson had not told him to depart. Id. at 85. While the victim could not recall her specific interactions with Appellant after he refused to leave, she remembered being struck by Appellant and thrown against a wall. The incident damaged the wall and caused the victim to break an acrylic fingernail. Id. at 86. At some point that evening, a noise stirred Mr. Robinson awake. Still dizzy from what he believed to be a drugging by Appellant, he walked downstairs and noticed a hole and scratches in the wall that had not previously been there. Appellant and the victim were no longer at the residence. Id. at 35, 39-40.
A surveillance camera installed outside of Appellant's motel room recorded Appellant bringing the victim to his room in the early morning hours of the date in question. Specifically, the surveillance video depicted Appellant carrying the victim's limp body over his shoulder as he approached and entered the room. Id. at 287-290. The victim awoke the following day on a bed in Appellant's room. Her pants had been removed, and she was still dazed. Id. at 87-88. She was also missing her cellphone, identification, and shoes. Id. at 93. Appellant was present and told the victim that he rescued her from a fight that she had with Mr. Robinson. Id. at 91. The victim fled and began walking down the interstate. Appellant pulled alongside her in his vehicle and offered her a ride, which she reluctantly accepted. Id. at 95-97.
After Appellant drove the victim to her residence, she and Mr. Robinson discussed what had happened and called the police. Id. at 101, 147. Mr. Robinson noted that the victim was disheveled and bruised. Id. at 41. Similarly, the police officer who recorded the victim's statement noted that she seemed frightened and confused by her inability to clearly recall what occurred the previous night. Id. at 149. After being transported to the hospital, a nurse performed a sexual assault forensic examination on the victim, which ultimately revealed the presence of Appellant's DNA. Id. at 175, 201, 239.
A few days after the night in question, law enforcement arranged a conversation between Appellant and Mr. Robinson, during which Mr. Robinson was equipped with a listening device. Id. at 264. Mr. Robinson asked Appellant why he would do something like this to the victim. Appellant denied having sex with the victim or any other wrongdoing. He also made identical denials during a subsequent telephone conversation that he and his attorney had with Detective Gregory Langley approximately two months later. Appellant's brief at 10-11. Both conversations occurred before the police had obtained the results of the vaginal swab revealing the presence of Appellant's DNA. N.T. Trial, 01/25-27/22, at 201, 239.
Appellant was charged as indicated above, and the case proceeded to a jury trial. At the conclusion of the Commonwealth's summation, Appellant objected to a statement made by the prosecutor and moved for a mistrial. The trial court denied Appellant's motion and issued curative instructions to the jury during its charge. Id. at 357-360. The jury convicted Appellant of both counts, and the trial court later sentenced Appellant to ten to twenty years of incarceration and five years of state probation. Appellant did not file a post-sentence motion but filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following question for our review: "Whether the trial court erred in denying Appellant's motion for a mistrial when the prosecutor impermissibly argued that [Appellant's] retention of counsel during police questioning prior to being formally charged was prejudicial and deprived [Appellant] of his right to a fair trial because it implied consciousness of guilt?" Appellant's brief at 6.
We begin our consideration of Appellant's question with a review of the pertinent legal principles. A trial court may only grant a mistrial "where the incident upon which the motion is based is of such nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict." Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000). This Court assesses the trial court's denial of a motion for a mistrial on an abuse of discretion standard. See Commonwealth v. Padilla, 923 A.2d 1189, 1192 (Pa.Super. 2007). To prove abuse of discretion, an appellant must demonstrate that the trial court decision was not "merely an error of judgment; rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Commonwealth v. Kriner, 915 A.2d 653, 656 (Pa.Super. 2007) (cleaned up). We will not substitute our judgment for that of the trial court. See Commonwealth v. Janda, 14 A.3d 147, 165 (Pa.Super. 2011). Deference is given to the trial court's decision, as it is in the best position to determine whether the defendant was prejudiced by the alleged prosecutorial misconduct. See Commonwealth v. Cole, 167 A.3d 49, 73 (Pa.Super. 2007).
Whether a prosecutor's actions rise to the level of prosecutorial misconduct "[center] on whether the defendant was deprived of a fair trial, and not whether the defendant was deprived of a perfect trial." Commonwealth v. Lawrence, 165 A.3d 34, 41 (Pa.Super. 2017). The test to determine if a prosecutor committed misconduct "is a stringent one." Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005) (cleaned up). "Generally speaking, a prosecutor's comments do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward [Appellant] so that they could not weigh the evidence objectively and render a true verdict." Id. (cleaned up). Prosecutors have latitude to articulate arguments, and their statements do not rise to the level of reversible error if they are "based on evidence or proper inferences therefrom or were only oratorical flair." Id. (cleaned up). Furthermore, "there is no per se rule which requires the grant of a new trial whenever the [prosecution] acts improperly." Commonwealth v. Clancy, 192 A.3d 44, 63 (Pa. 2018). This Court has held that "[e]ven if the prosecutor's arguments are improper, they generally will not form the basis for a new trial unless the comments unavoidably prejudiced the jury and prevented a true verdict." Commonwealth v. Hernandez, 230 A.3d 480, 490 (Pa.Super. 2020) (cleaned up).
In Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016) (cleaned up), our Supreme Court held that "[a] mistrial is not necessary where cautionary instructions are adequate to overcome prejudice." Indeed, "a trial court's curative instruction is presumed to be sufficient to cure any prejudice to Appellant." Commonwealth v. Thornton, 791 A.2d 1190, 1193 (Pa.Super. 2002). Moreover, it is well-settled that the jury is presumed to have followed the trial court's instruction to avoid drawing an adverse inference from the misstatement. See Commonwealth v. Patterson, 180 A.3d 1217, 1228 (Pa.Super. 2018).
The remedial effects of curative instructions extend to allegations of prosecutorial misconduct. See Harris, supra at 927 (cleaned up) ("When a trial court finds that a prosecutor's comments were inappropriate, they may be appropriately cured by a cautionary instruction to the jury"); see also Commonwealth v. Rivera, 939 A.2d 355, 358 (Pa.Super. 2007) ("A cautionary instruction can cure a claim of prosecutorial misconduct"). Even improper comments concerning constitutional rights may be remedied by curative instructions. Commonwealth v. Moury, 992 A.2d 162, 176 (Pa.Super. 2010) (explaining that, while reference to an accused's post-arrest silence is a violation of his constitutional rights, "the court might still be able to cure any prejudice through prompt and adequate curative instructions").
In the instant case, the alleged prosecutorial misconduct occurred during the Commonwealth's closing argument. The prosecution discussed two aspects of Appellant's pre-arrest behavior: (1) the repeated denials that he had sexual contact with the victim; and (2) his reliance upon counsel during his telephone conversation with Detective Langley:
I mean over and over and over again [Appellant] denies anything happening in that -- in that home. In that motel. All right. You say to yourselves, okay, well, you know what, they've been friends for [thirty] years. He didn't want to say me and your wife were messing around, right? Right? I mean, okay, I get that. I can understand why you don't tell [Mr. Robinson]. Not to mention the fact that maybe he'd want to kill you, but I get it. That's not where it stops though. The police -- the police are involved in this situation. This defendant knows that this is a big deal now. You know, he talks about the fact that, you know, [Mr. Robinson] was calling him and insinuating all of these things. Now, keep in mind, he's talking about those calls. And what he doesn't realize at the time, it's nice for him to not know -- he doesn't realize those calls are being recorded by the police, but he knows what [Mr. Robinson] is insinuating.
And what does [Appellant] do because he knows the importance of all this? He gets a lawyer. He gets an attorney. This isn't some schlep who just went in and spoke with the police without the benefit of having someone there to protect your rights, no. He goes in with an attorney. Talks over the phone to the police. And what does he do, ladies and gentlemen? He doesn't say listen, I didn't want to tell [Mr. Robinson] because I didn't want [the
victim] to get jammed up. I didn't want [Mr. Robinson] mad at me but we messed around. We messed around. Shouldn't have done it, perhaps too much drinking, shouldn't have done it. Does [Appellant] say that to the police? Does he tell the police that? No. What does he do when he has the time to come clean? He lies. He lies.N.T. Closing Arguments, 1/27/22, at 41-42.
As noted in the body of this memorandum, the results of the vaginal swab collected during the sexual assault forensic examination belied Appellant's denials by confirming the presence of Appellant's DNA. N.T. Trial, 1/25-27/22, at 201, 239.
We reject the dissent's view that this exchange somehow implied that Appellant was a liar "because he retained counsel." Concurring/Dissenting Memorandum at 8 (emphasis in original). In actuality, the exchange highlighted that when Appellant was presented with the opportunity to account for the sexual contact that he had with the victim, he lied about it. Phrased differently, contrary to the dissent's misapprehension, the prosecutor did not call Appellant a liar because he retained counsel, but because the DNA evidence confirmed that Appellant, in fact, had sexual contact with the victim notwithstanding his denials. Hence, Appellant lied about the encounter and to the extent that the prosecutor's statement was drawn from the evidence of record, it was proper. See Commonwealth v. Cox, 863 A.2d 536, 547-548 (Pa. 2004) (holding that the prosecution's repeated statements during closing argument that defendant was a liar did not warrant a new trial because they were reasonable inferences drawn from evidence introduced at trial).
Appellant contends that the prosecution violated his right to a fair trial by insinuating that his retention of counsel was tantamount to guilt and that only the guilty would retain an attorney and then lie in their presence. See Appellant's brief at 15-17, 22. Appellant argues that the improper statement and the subsequent denial of his request for a mistrial deprived him of his constitutional rights granted under the Sixth Amendment of the United States Constitution.
The Sixth Amendment to the U.S. Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.U.S. Const. Am. VI. Appellant claims both that the jury became hopelessly biased against him because of the prosecution's comments and that the trial court's curative instructions were insufficient to correct this prejudice. Appellant's brief at 15-16. Essentially, he avers that the trial court failed to correct the notion advanced by the Commonwealth that invoking the right to counsel implied guilt. Id. at. 20-21.
The trial court agreed that the prosecution's comments "appear to be improper," but ruled that they were not so prejudicial as to prevent a fair trial, especially because of the curative instructions provided to the jury. Trial Court Opinion, 6/22/22, at 11. For the reasons explained infra, we conclude that the trial court did not abuse its discretion in denying Appellant's motion for a mistrial.
We observe that the trial court addressed the impertinent statement by charging the jury as follows:
Also, [Appellant] has the right to counsel. And I'm going to bring that up only because he did have counsel at some point during the course of the proceedings. . . . When he comes in to trial he has an absolute right to put the Commonwealth to the test . . . and have you [evaluate] the evidence as presented and not any other way.
And that's why I want to make sure, because I know there was emphasis that he had a statement that was given with counsel. Well, when statements are given the law prefers that it
be with counsel. I think any reasonable person, innocent or not, accused of an offense, has the right, and you would expect them to use an attorney during that proceeding.
So I just didn't want anything to cast any aspersions as to what's involved. And remember what's constitutional is absolutely mandatory to our system. And we would ask you to take no adverse inference from his using counsel at one point or not taking the stand in this particular case.N.T. Trial, 1/25-27/22, at 363-64 (cleaned up) (emphases added).
The trial court did not abuse its discretion in finding that the foregoing instruction cured the alleged prosecutorial misconduct. It highlighted the offending statement and expressly directed the jury to avoid taking any adverse inferences from the fact that Appellant exercised his right to counsel during his discussions with police. Indeed, reasoning that the law prefers that someone in Appellant's position have counsel when making any statements to the authorities, the court further opined that any reasonable person in Appellant's situation would have been expected to invoke that right.
Our Supreme Court's reasoning in Commonwealth v. Wright, 961 A.2d 119, 145 (Pa. 2008) further demonstrates why Appellant is not entitled to relief in the instant case. During its summation, the Commonwealth made inappropriate remarks regarding the defendant's decision to forgo testifying at trial. Id. at 141. As in this case, the defendant in Wright argued that his Constitutional rights had been violated. The trial court issued "direct . . . [and] plain" curative instructions vigorously defending the defendant's Constitutional rights and "[warning] the jury against drawing any adverse inferences from the [Commonwealth's] comments." Id. at 144-145. The High Court found that the trial court's curative instructions "curtailed any damage the [Commonwealth's] reference could have caused." Id. at 144. Similarly, the instructions in the instant case directly communicated to the jury that Appellant had a right to counsel and that no adverse influences should be taken from the fact that he exercised that right.
In that case, the defendant alleged violations of the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution (protecting the decision of a criminal defendant to not testify). See id. at 132.
While the learned dissent cites overwhelming authority for the unassailable conclusion that an improper reference to the decision to retain counsel and/or remain silent violates a criminal defendant's constitutional rights, it fails to explain how that authority actually bolsters its conclusion that "the right to counsel is such a primordial right . . . that to weaponize it against a defendant is so impermissible that it cannot be cured." Concurring/Dissenting Memorandum at 9. Plainly, the cited authority does not support the premise that any reference to the retention of counsel is so innately prejudicial that it transcends remedy. In this vein, the dissent's reference to Commonwealth v. Lang, 275 A.3d 1072 (Pa.Super. 2022) is inapt because that case concerns the admission of evidence during trial rather than prosecutorial misconduct that is subject to a curative instruction. Similarly, none of the three remaining cases that the dissent cites for its conclusion involves a curative instruction. See United States ex rel. Macon v. Yeager, 476 F.2d 613, 614 (3rd Cir. 1973) (no objection or request for a curative instruction); Sizemore v. Fletcher, 921 F.2d 667, 672 (6th Cir. 1990) (noting court's repeated failure to caution the jury); State v. Angel T., 973 A.2d 1207, 1226 (Conn. 2009) (no objection or curative measures). Thus, insofar as curative instructions were not implicated by any of the foregoing cases, the authority that the dissent relies upon does not suggest, much less hold, that a curative instruction is inadequate. In fact, contrary to the dissent's aspirational perspective, it is beyond cavil that curative instructions may, in fact, cure improper remarks made by the prosecution, even those involving constitutional rights. See e.g., Commonwealth v. Moury, 992 A.2d 162, 176 (Pa.Super. 2010) (holding that, even if the Commonwealth mentions a defendant's post-arrest silence, curative instructions may cure any prejudice caused by this reference); Commonwealth v. Wright, 961 A.2d 119, 144 (Pa. 2008) (explaining, "the trial court's curative instructions curtailed any damage the prosecutor's reference [to defendant's refusal to testify] could have caused").
Significantly, in discussing the instruction's curative effect in Wright, our Supreme Court observed, "[t]his was not a close case, where a remark such as the one prosecutor made can change the flow of a trial." Id. The Court continued, "this trial was a river of evidence, and its flow was unaffected by this reference." Id. The same sentiments apply to the facts that the Commonwealth presented in the case at bar. Based upon DNA evidence, the Commonwealth proved that Appellant had sexual contact with the victim, who stridently denied the contact was consensual. Surveillance video also depicted Appellant carrying the victim's limp body over his shoulder as he approached and entered his motel room, consistent with the victim's testimony that she woke up in Appellant's motel room with very little memory of the previous night. Therefore, as the High Court framed this issue in Wright, although the remark was inappropriate, "[t]he prosecutor's comments, in the face of this overwhelming evidence, pale into a regrettable but insignificant blemish." Id.
Finally, considering that the jury is presumed to have followed the trial court's directive, the cautionary instruction and supplemental explanation were sufficient to cure any potential prejudice associated with the intemperate remark. See Patterson, supra at 1228. Indeed, insofar as "Appellant has offered nothing to rebut the presumption the jury followed the trial court's instructions," Appellant's argument is unconvincing. Wright, supra at 145.
Here, as in Wright, the trial court's well-articulated instructions cured any potential prejudice that may have arisen because of the Commonwealth's statement. Appellant was not denied a fair trial. We discern no abuse of discretion.
Judgment of sentence affirmed.
P.J.E. Stevens joins this Memorandum.
Judge Lazarus files a Concurring & Dissenting Memorandum.
CONCURRING/DISSENTING MEMORANDUM
LAZARUS, J.
I concur with the learned Majority's finding that the prosecutor's comments were improper. See Majority, ---DATE---, at 8-9, 12. However, I dissent from the Majority's conclusion that this misconduct was cured by the jury instruction. Rather, in my view, a defendant's right to counsel is of equal importance to his right to silence. Accordingly, I would hold that such a weaponization of a defendant's right to counsel cannot be cured under these circumstances.
The Majority aptly summarizes our standard of review and, thus, I do not do so here.
I begin by noting that this is an issue of first impression in Pennsylvania. There are no cases from this Commonwealth addressing whether a non-testifying defendant's pre-arrest retention of counsel can be used to impeach him in a prosecutor's closing argument. In reaching my conclusion, I find the following cases provide important insight.
Generally, Pennsylvania's right to counsel confers no greater protections than those guaranteed by the United States Constitution. See Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa. 1999).
Recently, this Court addressed whether it was impermissible for the Commonwealth to introduce evidence of a defendant's internet searches for criminal defense attorneys, in violation of his rights to due process and a fair trial. See Commonwealth v. Lang, 275 A.3d 1072 (Pa. Super. 2022). In Lang, the defendant, a priest, allegedly sexually assaulted the victim at St. Therese Lisieux Roman Catholic Church in 2001. See id. at 1075. Seventeen years later, the victim reported the alleged abuse. Id. The victim's report coincided with the Attorney General's 2018 Report prepared by the Fortieth Statewide Investigating Grand Jury ("Report") that disclosed results of an investigation into widespread clergy abuse in Pennsylvania. Id. at 1076. The defendant's name was not among those specifically identified in the Report. Id. However, one day after the Report was released, defendant searched on his iPad for top Pittsburgh criminal defense attorneys. Id. At trial, the Commonwealth introduced that search query as evidence of consciousness of guilt, and the jury convicted the defendant. Id. The defendant filed a timely post-trial motion challenging the admission of his iPad search into evidence. Id. After a hearing, the trial court granted defendant's motion and ordered a new trial. Id. at 1076-77. The Commonwealth appealed to this Court.
Defendant's iPad was searched pursuant to a warrant. Id.
On appeal, we observed that "the post-trial court explicitly stated it was not granting relief to [defendant] on 6th Amendment grounds." Id. at 1081. Indeed, this Court additionally acknowledged that "there is no binding precedent in Pennsylvania" discussing when the 6th Amendment right to counsel attaches. Id. Nevertheless, this Court reviewed case law from our sister states, as well as precedent from Pennsylvania, and concluded that "a violation of the Fourteenth Amendment's right to a fair trial and due process of law occurs when a prosecutor is permitted to suggest to a jury that a defendant's pre-arrest efforts to retain an attorney are consistent with guilt." Id. (emphasis added); see also id. (citing trial court's opinion and stating "[o]ur review of the legal authority cited by post-trial court, as well as our independent research, leads us to the same conclusion").
In particular, this Court cited United States ex. Rel Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973), Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990), and State v. Angel T., 973 A.2d 1207 (Conn. 2009). In Macon, the prosecutor commented that the defendant had called his attorney the day after the murder, before he was charged, and asked the jury to consider if that was an "act[] of innocence[.]" Macon, 476 F.2d at 614. The Third Circuit concluded that "the prosecutor's comment to the jury was constitutional error. . . . [A] prosecutor's comment seeking to raise in the jurors' minds an inference of guilt from the defendant's constitutionally protected conduct constitutes a 'penalty' on the free exercise of a constitutional right." Id. at 615 (emphasis added; footnote omitted).
In Sizemore, the Sixth Circuit reached a similar conclusion. In that case, defendant was involved in an altercation in which two people were shot and killed. See Sizemore, 921 F.2d at 668. After speaking with police, but before charges were filed, the defendant consulted with his attorney at the scene. Id. In closing arguments, the prosecutor referred to the defendant's "convenient attorney . . . who had been with him from within five minutes of the killing to the very end." Id. at 669. In addressing this claim, the Sixth Circuit concluded that "the prosecutor's comments could have misled the jury and were prejudicial." Id. at 671. In addition, the Sixth Circuit opined "[a] prosecutor may not imply that an accused's decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment, implies guilt." Id. (emphasis added)
In Angel T., the Supreme Court of Connecticut addressed a prosecutor's comments during closing argument implying guilt from "the fact the defendant . . . had obtained representation by an attorney during the police investigation of the crimes at issue." Angel T., 973 A.2d at 1210. The Supreme Court of Connecticut concluded that the defendant was entitled to a new trial. Id. at 1218. The Court noted that the "vast majority of the federal and state courts . . . have concluded that prosecutors may not suggest that a defendant's retention of counsel is inconsistent with his or her innocence." Id. (footnote omitted). The Court further stated that "we view [e]vidence of a criminal defendant's consultation with an attorney [as] highly prejudicial, as it is likely to give rise to the improper inference that a defendant in a criminal case is, or at least believes himself to be, guilty." Id. at 1220-21.
In Lang, this Court compiled additional cases from our Federal Circuit Courts and sister state courts that I include by reference, but do not summarize here. See Lang, 275 A.3d at 1083 (compiling cases regarding prosecutorial misconduct during closing arguments where prosecutors improperly implied defendant's guilty conscience for consulting with attorney prior to filing of criminal charges).
Moreover, I find additional guidance from our jurisprudence regarding a defendant's right to silence. It is beyond cavil that "[t]he Fifth Amendment protects a defendant's decision not to testify at trial from prosecutorial comment." See Molina, supra (citing Griffin v. California, 380 U.S. 609, 613-14 (1965)) (emphasis added); see also Commonwealth v. Randall, 758 A.2d 669, 681 (Pa. Super. 2000) ("It is axiomatic that a prosecutor may not comment adversely on a defendant's refusal to testify with respect to the charges against him since such commentary would compromise the defendant's privilege against self-incrimination and the defendant's constitutional presumption of innocence."). In Griffin, our United States Supreme Court reasoned, "comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice, which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down the privilege by making its assertion costly." Griffin, 380 U.S. at 614 (quotation marks, citation, and footnote omitted). Thus, a criminal defendant has the absolute right to remain silent and to not present evidence. Notably, in Pennsylvania, the right to remain silent does not arise only when a suspect is induced to remain silent by a Miranda warning. See Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982) (defendant cannot be impeached by inconsistency between his silence at time of arrest but before Miranda warnings are provided).
In Molina, this Court discussed numerous cases from this Commonwealth, the Federal Circuit Courts, and our sister states. See Molina, 33 A.3d at 60-62 (compiling and discussing cases). Ultimately, this Court held that "the Commonwealth cannot use a non-testifying defendant's pre-arrest silence to support its contention that the defendant is guilty of the crime charged[,] as such use infringes on a defendant's right to be free from self-incrimination." Id. at 62 (citations omitted). We further stated that where a defendant does not take the stand and his credibility is not at issue, pre-arrest silence cannot be used to impeach him. See id.
More recently, our Supreme Court has reiterated that "mere reference to pre-arrest silence does not constitute reversible error where the prosecution does not exploit the defendant's silence as a tacit admission of guilt." Commonwealth v. Rivera, 296 A.3d 1141, 1150 (Pa. 2023) (citing Commonwealth v. Adams, 104 A.3d 511 (Pa. 2014) (plurality)).Rather, such a reference to a defendant's pre-arrest silence may only be investigatory in nature. See Rivera, supra.
I note that the Court in Rivera addressed an issue relating to post-arrest silence. See id. at 1142. However, the Court discussed, at length, the distinctions between post-arrest silence and pre-arrest silence. See id. at 1149-59.
With the background of the case law summarized above, I find it compelling that the right to counsel necessarily includes the pre-arrest retention of an attorney. Here, at trial, the prosecutor stated:
Now, keep in mind, he's talking about those calls. And what he doesn't realize at the time, it's nice for him to not know - he doesn't know those calls are being recorded by the police, but he knows what Damon is insinuating.
And what does he do because he knows the importance of all this? He gets a lawyer. He gets an attorney. This isn't some schlep who just went in and spoke with the police without the benefit of having someone there to protect [his] rights, no. He goes in with an attorney. Talks over the phone to the police.
And what does he do, ladies and gentleman? He doesn't say listen, I didn't want to tell Damon because I didn't want her to get jammed up. I didn't want him mad at me but we messed around. We messed around. Shouldn't have done it, perhaps too much drinking, shouldn't have done it.
Does he say that to police? Does he tell the police that? No. What does he do when he has the time to come clean? He lies. He lies.N.T. Jury Trial, 1/27/22, at 42 (emphasis added).
The prosecutor's comments clearly infringe upon Jenkins's invocation of his right to counsel. Indeed, by not only implying, but directly stating that Jenkins must be a liar because he retained counsel, the prosecutor engaged in conduct so flagrant and inappropriate that I believe it cannot be cured. I emphasize that, in the instant case, the prosecutor's comments were not investigatory in nature, a mere reference or passing comment. Rather, as highlighted above, the prosecutor expressly stated that Jenkins was a liar because he hired an attorney.
The Majority concludes that these comments by the prosecutor "highlight[] that when [Jenkins] was presented with the opportunity to account for the sexual contact that he had with the victim, he lied about it. Phrase differently . . . the prosecutor did not call [Jenkins] a liar because he retained counsel, but because the DNA evidence confirmed that [Jenkins] . . . had sexual contact with the victim notwithstanding his denials. Hence, [Jenkins] lied about the encounter and to the extent that the prosecutor's statement was drawn from the evidence of the record, it was proper." Majority, ---DATE---, at 7 n.1 (emphasis added). The Majority's conclusion is unsupported by the record. The prosecutor's comments, quoted above, do not mention DNA evidence, nor do they reference any evidence that the Commonwealth presented. Rather, in my view, it is quite clear that the prosecutor was calling Jenkins a liar because he retained an attorney rather than "coming clean" to the police.
Moreover, this Court in Lang, while ultimately declining to affirm on right-to-counsel grounds, observed that our Constitution even protects mere internet searches for an attorney, which is several steps below the instant case. Here, Jenkins had already procured counsel. This situation is not one where Jenkins was seeking counsel or looking to retain counsel, he already had counsel. Additionally, Jenkins did not take the stand in his own defense. As the trial court aptly observed, any person, guilty or innocent, has the right to counsel. That right shall not be infringed.
In sum, I cannot agree with the Majority that the instant infringement upon the right to counsel was cured by the trial court's jury instruction. In my view, the right to counsel is such a primordial right in our jurisprudence that to weaponize it against a defendant is so impermissible that it cannot be cured.
Accordingly, I would reverse the trial court's denial of Jenkins' motion for mistrial, and remand for a new trial.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.