[J-78-2022] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ. COMMONWEALTH OF PENNSYLVANIA, : No. 22 MAP 2022 : Appellee : Appeal from the Order of the : Superior Court entered May 24, : 2021 at No. 1788 MDA 2019 v. : Affirming in Part and Vacating the : Judgment of Sentence of the : Bradford County Court of Common JONATHAN RIVERA, : Pleas, Criminal Division, dated : September 26, 2019, at No. CP-08- Appellant : CR-0000606-2018 and Remanding : for Resentencing. : : ARGUED: November 29, 2022 OPINION JUSTICE BROBSON DECIDED: June 21, 2023 This discretionary appeal allows us to consider harmless error in the context of post-arrest silence. At trial, the prosecutor in this case asked the arresting officer a series of questions about the defendant’s post-arrest behavior, particularly whether the defendant denied the charges against him. Over a defense objection, the officer told the jury, four separate times, that the defendant, upon his arrest, stood mute and denied none of the charges. The Superior Court ruled that this testimony was admitted in error but, relying on authorities discussing pre-arrest silence, found it harmless. We accepted review to reiterate that different harmless error standards apply when evaluating testimonial references to a defendant’s post-arrest versus pre-arrest silence. Oriented correctly, we conclude that the testimony in this case was not harmless beyond a reasonable doubt. Therefore, we must award the defendant a new trial. I. In April 2018, Florencia Mainetto (Florencia) recorded cellphone videos of her daughter (G.R.) and her niece (C.P.), both minors at the time, accusing Appellant Jonathan Rivera (Rivera) of sexual abuse. After sharing these videos with Trooper Higdon of the Pennsylvania State Police, Florencia and her sister, Katherin Mainetto (Katherin), who is C.P.’s mother, brought G.R. and C.P. to the Children’s Advocacy Center of Towanda (Advocacy Center) for formal forensic interviews. Trooper Higdon observed these interviews through a window. A nurse at the Advocacy Center then examined G.R. and C.P. but did not find any physical evidence of abuse. Later, two more minors, S.C. and S.M., made similar allegations against Rivera. Combined, the victims alleged that Rivera abused them between the years of 2009 and 2018. On June 26, 2018, Trooper Higdon filed a criminal complaint and affidavit of probable cause against Rivera, alleging, inter alia, rape of a child. That day, with an arrest warrant in hand and other officers in tow, Trooper Higdon went to Rivera’s house, apprised him of the charges against him, read the Miranda 1 warnings, and placed him under arrest. Upon his arrest, Rivera did not deny the charges; rather, he remained silent—as was his right under the state and national constitutions. See Pa. Const. art. 1, § 9 (“In all criminal prosecutions the accused . . . cannot be compelled to give evidence against himself[.]”); U.S. Const. amend. V (“No person . . . shall be compelled in any criminal case to be a witness against himself.”). See generally Watts v. Indiana, …
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