Saturday, September 9, 2023

Recent Pa. Supreme Court Case Tackles Pre-Arrest and Post-Arrest Silence

Matthew T. Mangino
The Legal Intelligencer
September 7, 2023

The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Most Americans can recite the Miranda warnings verbatim—not because of the power and substance of some high school civics class—but because of television crime dramas. The Miranda warnings are etched into our psyche, “You have the right to remain silent …” However, that iconic first line is not as clear as one might think.

This summer the Pennsylvania Supreme Court issued an important decision regarding the Fifth Amendment of the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution. The language of the Pennsylvania and U.S. Constitutions are quite similar, but not identical. In Pennsylvania the Constitution provides, “The accused … cannot be compelled to give evidence against himself.” The Fifth Amendment provides, “No person … shall be compelled … to be a witness against himself.”

The Pennsylvania Supreme Court decided Commonwealth v. Rivera, 22 MAP 2022, on June 21. If you are a constitutional “geek” you’ll feel as though you stumbled upon a pot of gold. This opinion examines a defendant’s silence in the context of pre-arrest and post-arrest; harmless error; a lack of curative instruction; credibility and split verdicts.

Jonathan Rivera was accused of the rape of several children. He was accused by four females and went to trial. At trial the prosecutor asked a testifying police officer: “After you read him his Miranda warnings, he never told you that he didn’t do anything to any of these kids?” Over the objection of the defense counsel, the police officer was ordered to answer. The officer said “He [Rivera] did not deny.” All in all, the officer was asked four different ways if Rivera denied the allegations and each time the officer answered in the negative.

The jury returned a split verdict finding him not guilty on the most serious charges. On appeal, Rivera argued that the trial court erred by permitting the testimony regarding his post-arrest silence. Rivera suggested that the testimony of his silence “irreparably undermined his credibility in the eyes of the jury.”

The prosecution argued that the defense briefly inquired into the defendant’s pre-arrest silence and that opened the door to the prosecution’s questions. The prosecutor’s questions were a fair response to the defense counsel’s questioning. The Pennsylvania Superior Court disagreed and ruled the prosecution’s questions of silence were admitted in error.

However, that’s where the wheels came off at the Superior Court. The court found the “trial court’s error was harmless because the prejudice to Rivera, if any, was de minimis.” The problem with the Superior Court’s finding, according to the Supreme Court, was that the court relied on decisions relating to pre-arrest silence, instead—as in Rivera’s case—the issues of one of post-arrest/post-Miranda silence. In Rivera, the Supreme Court ruled, “Undeniably, the four questions the prosecutor asked here related to Rivera’s post-arrest, post-Miranda silence.”


The distinction between pre-arrest and post-arrest silence is crucial. Prejudice to defendants whose post-arrest silence is brought up is “innate.” The prosecution must prove beyond a reasonable doubt that the error did not affect the deliberations of the jury.

Why is the commonwealth’s reference to post-arrest silence innately prejudicial? Most people believe a person falsely accused of a crime would bitterly protest their innocence or without hesitation challenge any accusation against them.

The same is often thought when a suspect displays little emotion in the wake of the suspicious loss a spouse or child.

We know that neither is necessarily indicative of guilt. People dealing with a loss or confronted with arrest react in different ways. The shock of such a trauma could simply be dealt with by silence—neither should be easily accepted as an admission of guilt.

Although the Supreme Court acknowledged that the court has struggled to create a uniform rule to govern references to pre-arrest silence—the case before the court was not the case to address that issue. The court wrote, “We need not square the circle here.”

According to the Supreme Court, the court first took up the issue of post-arrest silence more than a half century ago. In Commonwealth v. Haideman, 296 A.2d 765 (Pa. 1972), the Supreme Court held, “Testimonial reference to an accused’s silence … at the time of arrest is … constitutionally impermissible.”

The court in Haideman pointed out that even Miranda v. Arizona, 384 U.S. 436 (1966), forbids the prosecution from “introducing at trial the fact that the accused ‘stood mute or claimed privilege.’”

The Supreme Court also explored Commonwealth v. Greco, 350 A.2d 826 (Pa. 1976), “I advised him … that he had the right to remain silent and he didn’t actually make any statement …”; Commonwealth v. Singletary, 387 A.2d 656 (Pa. 1978), “And on advice of counsel, you made no statement concerning the case?”; and Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982), “Did you ever tell the police that somebody was shooting at you?”

None of these decisions relied on by the Supreme Court were cited by the Superior Court in their Rivera decision.

In each of the above decisions, the Supreme Court granted the defendant a new trial. The court noted, “This court has repeatedly signaled to the commonwealth that referencing a defendant’s post-arrest silence may imperil an entire case.” The court went further, “We have often deemed a single such reference—answered or not, curative instruction or not—offensive enough to the constitution and the principles it embodies as to call for a new trial.”

The last question addressed by the Supreme Court, now that it was clear that the testimony of Rivera’s post-arrest silence was admitted in error, was whether the error was harmless. The court looked to Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014). There are three prongs to the Hairston harmless error test. First, did the error prejudice the defendant or was the error de minimis?

The court quickly disposed of the first prong—the Superior Court had reviewed the case as pre-arrest silence when it was clearly post-arrest silence.

The second prong related to whether the error was merely cumulative. The commonwealth did not even argue that the testimony of the police officer regarding Rivera’s post-arrest silence was cumulative of other evidence presented in the case.

The third prong provides that the commonwealth must prove beyond a reasonable doubt that “properly admitted and uncontracted evidence of guilt was so overwhelming and the prejudicial effect of the error was insignificant …”

The court found that due to the lack of physical evidence, credibility was central to this case “It is not improbable that the admission of this testimony might have contributed to the conviction.” The court also pointed out the absence of a clear curative instruction by the trial judge and the spit verdict by the jury all contributed to the finding that “the allowance of the constitutionally impermissible testimony here was not harmless.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at

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