Commonwealth v. Lettau

OPINION

In this case, we consider the extent to which evidence of a defendant’s pre-arrest silence and lack of cooperation with a police investigation can be used against him when he testifies at trial. Because we determine that evidence of the defendant’s pre-arrest lack of cooperation was properly admitted as rebuttal evidence and any argument as to any other use of such evidence was not properly preserved, we reverse the Superior Court.

*439Appellee David John Lettau (“Lettau”) was charged with forgery and theft for cashing a stolen check. Lettau, a minister who is licensed in pastoral counseling, testified at trial in his own defense. Lettau explained that he met Paul Haffley when he was referred by a local social service agency to counsel Haffley after Butler County Children and Youth Services removed Haffley’s child. Lettau testified that he had met with Haffley several times at Haffley’s home and that he occasionally performed favors for Haffley. Lettau also testified that while visiting Haffley’s home, he met a woman named Sister Linda, later revealed to be Linda Krieter, who Haffley described as his cousin. Lettau explained that he soon began to counsel Sister Linda as well. According to Lettau, Haffley asked him to cash a $100 check written to someone named Linda McConnell. Lettau testified that he did not question whether the check belonged to Sister Linda because he did not know her last name. Lettau took Krieter to his bank where he cashed the check and then gave the received funds to Krieter.

In fact, Linda McConnell has no relationship with Lettau, Haffley, or Krieter. McConnell sells dogs, and a customer sent her the check in the mail as a deposit on a puppy. It is unclear how the check came into Haffley’s or Krieter’s possession — McConnell never received it. When her customer alerted her that the check had been cashed, McConnell let her know that she had not received the check. At that point, McConnell’s customer alerted the Pennsylvania State Police that the check had been stolen.

During its case in chief, the Commonwealth called Trooper Ronald Fagley, the investigating officer, to describe his investigation and give brief testimony about conversations he had with Linda McConnell and Lettau during his investigation. Fagley testified that in the course of his investigation he called Lettau and left messages with him, and that Lettau called him back that night. N.T., 4/26/2007, at 70. Fagley said that Lettau told him that he had taken a friend named Sister Linda to the bank to cash a check because she did not have an account there, and that he did not know Sister Linda’s last *440name. Fagley also testified that Lettau told him that he did not know where Sister Linda lived but that she came to his church on occasion. N.T., 4/26/2007, at 71. According to Fagley, Lettau asked him what the big deal was, because McConnell had gotten her money back. Fagley also testified that Lettau refused to say where his church was located except that it was in the state of Pennsylvania and, in Fagley’s words, “that was the most amount of information I could get pertaining to that.” N.T., 4/26/2007, at 72.

Lettau testified on direct about his visits to Haffley’s residence and his previous interaction with Haffley and Krieter. Lettau explained that he cashed the check as a favor to Haffley and that he was unaware that the check did not belong to Krieter. He also testified that he gave Fagley all of this information about Haffley and Krieter when Fagley contacted him about the check. N.T., 4/26/2007, at 115.

On cross-examination, the Commonwealth focused on Let-tau’s claim that he had cooperated with the state police investigation. When challenged about his testimony on direct that he had provided the trooper with all of the information he knew about Haffley and Krieter, Lettau insisted that he had relayed this information to police, explaining that he provided the police with contact information for Haffley and Krieter. N.T., 4/26/2007, at 119-21. When the Commonwealth asked Lettau whether he had been asked to come to the police barracks and give a statement, Lettau’s trial counsel objected based on Lettau’s right to remain silent. The objection was overruled, and the Commonwealth proceeded to question Let-tau extensively as to his level of cooperation with Fagley’s investigation, eventually eliciting Lettau’s testimony that he had cooperated with the investigation. N.T., 4/26/2007, at 127.

The Commonwealth then recalled Fagley to rebut Lettau’s testimony. Fagley testified that Lettau had not been cooperative, had refused to provide relevant information about his bank, Krieter, and his church, and had refused to come to the state police barracks in order to give a statement. N.T., 4/26/2007, at 169; 4/27/2007, at 18-19. Defense counsel again objected to Fagley’s testimony as to Lettau’s refusal to come *441to the barracks to give a statement, and moved for a mistrial based on a claim that the Commonwealth made improper use of Lettau’s exercise of his right to remain silent. N.T., 4/26/2007, at 170. The trial court heard argument on the issue and denied the mistrial. The Commonwealth continued its cross-examination of Fagley, who contradicted Lettau’s testimony regarding his cooperation with the state police. Previously, Fagley had testified that Lettau never mentioned Haffley or any visits to the Haffley residence and his contact with Krieter there. N.T., 4/26/2007, at 71-73. Instead, as Fagley explained earlier in his direct testimony, Lettau maintained that he did not know where Krieter lived but instead encountered her as a visitor to his church. N.T., 4/26/2007, at 71. At the close of trial, the jury found Lettau guilty of Forgery and Theft by Receiving Stolen Property,1 and the court imposed a sentence of 15 to 30 days incarceration and $400 in fines.

On appeal, the Superior Court vacated Lettau’s sentence in a published opinion. Commonwealth v. Lettau, 955 A.2d 360 (Pa.Super.2008). Applying this Court’s opinions in Commonwealth v. Bolus, 545 Pa. 103, 680 A.2d 839 (1996) and Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005), the Superior Court concluded that the Commonwealth’s use of Lettau’s pre-arrest silence was in excess of what this Court has previously sanctioned and was “so pervasive as to impair the jury’s ability to render a fair and just verdict.” Lettau, 955 A.2d at 363. Judge Popovich dissented, finding that neither Bolus nor DiNicola warranted reversal and focusing on defense counsel’s failure to object to Trooper Fagley’s direct testimony.2

This Court granted review in order to determine whether the Superior Court was correct in concluding that the Commonwealth’s evidence of Lettau’s pre-arrest dealings with the *442police unduly prejudiced Lettau, and whether Lettau’s trial counsel preserved the essential issues for appellate review. Commonwealth v. Lettau, 600 Pa. 103, 963 A.2d 905 (2009).3

Both the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution protect an individual’s right not to be compelled to be a witness against himself. Article I, Section 9 explicitly allows the use of voluntary admissions for impeachment purposes, and case law under the Fifth Amendment allows a defendant’s silence to be used as impeachment evidence when the defendant has testified in his own defense. See, e.g., Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).4

In Commonwealth v. Bolus, supra, this Court heard a challenge to a conviction of receiving stolen property, tampering with evidence, and criminal solicitation. Bolus had a stolen tractor-trailer on his property and, when asked during the police investigation how the tractor-trailer got there, he initially told the police that he had towed the tractor-trailer to his towing lot in order to repair it after it had broken down on the highway and that he was in the process of obtaining title via a mechanic’s lien. 680 A.2d at 841.

The police found this account difficult to credit, and they seized the tractor-trailer. At that time, they asked Bolus whether he knew the location of the front-end loader, also reported stolen, that the tractor-trailer had been used to transport. Bolus replied that he had no knowledge of the front-end loader’s whereabouts. The next day, the police *443pulled over a tractor-trailer owned by Bolus and found the stolen front-end loader therein. Id.

At trial, Bolus testified that he had purchased the front-end loader from an individual named Willie Thomson. He denied that he knew that the front-end loader was stolen and submitted cancelled checks that were written to Willie Thomson. During cross-examination, the prosecutor asked Bolus why he had not mentioned Willie Thomson in his conversations with the police during their investigation. Defense counsel made no objection to this line of questioning. Id. at 842.

Bolus was convicted of receiving stolen property, tampering with physical evidence, and criminal solicitation. On appeal he argued that his trial counsel had been ineffective for failing to object to questions regarding his pre-arrest lack of cooperation -with the investigation. This Court denied his claim for relief and applied Jenkins v. Anderson, holding that the Fifth Amendment and the Pennsylvania Constitution allow prosecutorial use of pre-arrest, pre-Miranda5 warning silence in order to impeach a defendant who testifies in his own defense. Id. at 844.

In Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), this Court established that the right to remain silent does not come into existence only when a suspect is induced to remain silent by a Miranda warning: “We do not think that the accused should be protected only where there is a government inducement of the exercise of the right [to remain silent].” 454 A.2d at 540. Bolus established that although a suspect is protected by the right to remain silent prior to being given Miranda warnings, his credibility as a witness may nevertheless be impeached with evidence of his preMiranda silence, especially where he testifies that he was vocal and cooperative with the police investigation. Bolus, 680 A.2d at 844 (“We find the reasoning of ... Jenkins v. Anderson, supra, to be compelling, and hold that when a criminal defendant waives his right to remain silent and testifies at his own trial, neither the United States nor the *444Pennsylvania Constitution prohibit a prosecutor from impeaching the defendant’s credibility by referring to his prearrest silence.”). Notably, in Bolus, the defendant professed ignorance as to the stolen front-end loader, and then testified at trial that the front-end loader belonged to him because he purchased it from an individual named Willie Thomson. Bolus, 680 A.2d at 841 (“[During the investigation,] Appellant denied having any knowledge regarding the whereabouts of the front-end loader ... [a]t trial, Appellant testified to a different version of events from that which he had previously told the police. Appellant testified that he had purchased the front-end loader.”).

In this case, the Superior Court found fault with the extent of the Commonwealth’s focus on Lettau’s cooperation or lack thereof with the police investigation, especially during its cross-examination of Lettau and subsequent examination of Fagley: “we find it highly probative, as the level of attention accorded the disparities in the witnesses’ testimony is so disproportionate to the testimony concerning the charged offenses, as to imply to lay jurors that the offense on trial is in fact the defendant’s failure to cooperate more fully with Trooper Fagley.” Lettau, 955 A.2d at 367. However, there is nothing in Bolus or the case law upon which it rests that serves to limit the cross-examination of a defendant who says one thing to police during an investigation and a different thing while testifying at trial. Simply put, impeachment is proper under these circumstances.6 Similaiiy, there is no constitutionally-mandated ratio between evidence of the charged offenses and evidence tending to discredit a defendant-witness’s credibility.

This case is nearly identical to Bolus in that Lettau’s interactions with the police were inconsistent with the version of events he testified to at trial. Lettau gave testimony both during his direct examination and on cross-examination that *445he had cooperated with the police investigation and provided Trooper Fagiey specific, relevant information about Haffley and Krieter. For instance, after explaining how he met Haffley and Krieter, including his multiple visits to their residence and the way in which he came to cash the check, Lettau testified that he told Fagiey “pretty much the whole scenario we just talked about.” N.T., 4/26/2007, at 115. This was in response to a question from his own attorney asking him whether he told Fagiey that he had taken Linda Krieter to the bank. Id. His attorney also asked him whether he told Fagiey about Paul Haffley. Id. At this point, the Commonwealth offered Fagley’s contrary testimony, namely, that Let-tau refused to give relevant information about Krieter or about his church, and was not cooperative with Fagley’s investigation. N.T., 4/27/2007, at 19.

Under Bolus, the Commonwealth must be able to explore the level of the defendant’s cooperation and whether he provided the information that he claimed he provided. The proverbial door has been opened. Here, Lettau opened the door by claiming that he gave police extensive information to advance their investigation. As a result, the Commonwealth was entitled to present its version of Lettau’s “cooperation.”

Contrary to the Superior Court’s reasoning, this Court’s decision in Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329 (2005), lends further support to the trial court’s rulings in this case. Under DiNicola, when a defendant’s claimed participation with a police investigation becomes a subject of defense strategy or defense testimony, the Commonwealth is permitted a fair response to the defendant’s claim. Simply put, the Commonwealth may offer up its own accounting of the investigation and the defendant’s participation therein. In DiNicola, the defense pursued a strategy of impugning the thoroughness of the investigation conducted by the Commonwealth, and in pursuit of that strategy called an investigating officer to testify, asking him whether he had done anything during his investigation to discern whether the charges against the defendant were unfounded. DiNicola, 866 A.2d at 332. The defense proceeded with this strategy even after a *446Commonwealth objection and warning that it would lead to the officer’s revealing the defendant’s pre-arrest assertion of his right to remain silent. Id. at 331. It did, and the Commonwealth then cross-examined the officer, eliciting testimony that DiNicola had remained silent throughout the investigation, even after he was represented by counsel. Id. at 332.

DiNicola filed a post-sentence motion alleging ineffective assistance of counsel, both for failing to object to the investigating officer’s reference to his pre-arrest silence and for trial counsel’s decision to pursue that line of questioning in the first place, since it was likely to end in the admission of testimony revealing DiNicola’s decision to remain silent during the police investigation. Id. This Court held that his lawyer was not ineffective for failing to object to testimony of pre-arrest silence, since such testimony was properly admitted under the fair response doctrine.7 Id. at 336. As to DiNicola’s second ineffectiveness claim, this Court rejected it because DiNicola could not establish that he had been prejudiced by having evidence of his pre-arrest silence introduced in order to defend the police investigation. “Taken at face value, the revelation of silence in this case was limited to its context ... [i]n this situation, the reference to silence and its Fifth Amendment source was circumspect; it was not used in any fashion that was likely to burden [DiNicola’s] Fifth Amendment right *447or to create an inference of guilt.” Id. at 337. “The prosecutor never argued to the jury that [DiNicola’s] response to the request for an interview tacitly suggested his guilt; nor did the trial court charge the jurors that they could consider the evidence for such a purpose.” Id. at 338 (Castille, J., concurring). Because use of the evidence of DiNicola’s silence was limited to explaining the extent of the police investigation and defending its thoroughness in the face of defense attacks thereon, this Court held that it was not likely to create an inference of guilt, which the Fifth Amendment is meant to prevent.

In this case, Lettau testified that he had been “very cooperative” and had provided Fagley with his side of the story, including all the information he had about Paul Haffley and Linda Krieter.8 N.T., 4/26/2007, at 115. The purpose of the Commonwealth’s cross-examination of Lettau, and its subsequent examination of Fagley, was to show that Lettau had not been truthful in his direct testimony. At no point during its cross-examination of Lettau or its examination of Fagley did the Commonwealth ask the jury to infer that Lettau’s silence or lack of cooperation was a sign of guilt. On the contrary, the prosecutor’s questions represented a fair response to a defense tactic of portraying Lettau as cooperative, and they further served as rebuttal evidence that called into question Lettau’s honesty as a testifying witness. Such impeachment use is clearly allowed under Bolus and such fair response use is clearly allowed under DiNicola. See Bolus, 680 A.2d at 844 (holding prosecutor may impeach a defendant’s credibility by referring to his pre-arrest silence); DiNicola, 866 A.2d at 336, (holding prosecutor may respond to defense attempts to impugn the thoroughness of the investigation by revealing defendant’s lack of cooperation with the investigation).9 Therefore, Lettau’s objections were unfound*448ed, and were rightfully rejected by the trial court. The Superior Court majority erred in concluding otherwise.

In addition to finding fault with the Commonwealth’s cross-examination of Lettau and its proffer of Fagley’s rebuttal testimony, the Superior Court majority criticized the Commonwealth’s direct examination of Fagley and also noted the prosecutor’s closing argument, which it characterized as improperly using Lettau’s pre-arrest silence as demonstrating Lettau’s guilt.10 Lettau, 955 A.2d at 362. Whether or to what extent Fagley’s direct testimony and the Commonwealth’s closing argument could be interpreted as improper use of Lettau’s pre-arrest silence to establish guilt is irrelevant. Lettau’s trial counsel never objected to the trooper’s direct testimony or to the prosecutor’s closing argument. Thus, the *449Superior Court’s discussion of and reliance on alleged improprieties during Fagley’s direct testimony and the Commonwealth’s closing is misplaced. The Superior Court should have limited its inquiry to the errors Lettau raised at trial and preserved on appeal, namely, Lettau’s cross-examination and Fagley’s rebuttal testimony.

The dissent also relies on Trooper Fagley’s direct testimony as the foundation for its conclusion that the Superior Court decision was correct. The dissent suggests that a single statement made by Trooper Fagley on direct “unmistakably introduced into the trial the notion that [Lettau] refused to participate in the police investigation,” which in turn compelled Lettau to “rebut such inference by describing his efforts in answering Trooper Fagley’s inquiries.” 11 Dissenting Opinion at 454, 986 A.2d at 124-25. The dissent concludes that both Bolus and DiNicola precluded the Commonwealth from thereafter fully cross-examining Lettau about his version of events, as such cross-examination somehow constituted an “exploitation” of Lettau’s pre-arrest conduct. Id. at 454 n. 2, 986 A.2d at 117 n. 2.

Certainly, if Lettau’s counsel believed that the trooper’s statement on direct was improper, prejudicial, or objectionable for any reason, he could have raised a challenge. Lettau could have moved to strike the answer; he could have requested a cautionary instruction; he could have sought a mistrial. But, as the dissent recognizes, he pursued none of these options.12 *450The dissent ignores the availability of such traditional methods for curing an asserted “error,” and instead proposes the unusual remedy of permitting Lettau to testify about his supposed pre-arrest cooperation with the police without the ramifications that typically accompany sworn testimony in court. Such a “solution,” if permitted, would represent a significant departure from our adversary system, as it would allow a witness to testify under oath about material facts, without any expectation or concern that his testimony will be subject to challenge by way of cross-examination or rebuttal. Neither Bolus nor DiNicola supports such an approach. Indeed, as set out above, the holdings in these cases accomplish just the opposite.

The testimony to which Lettau’s trial counsel objected was permissible as impeachment evidence and as fair response to Lettau’s characterization of himself as cooperative with the police investigation.

For the foregoing reasons, we reverse the Superior Court.