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[J-105-2005] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.

COMMONWEALTH OF PENNSYLVANIA, : : Appellee : : : v. : : : MIGUEL GARCIA, : : Appellant : : : :

No. 46 EAP 2004 Appeal from the Order of the Superior Court at No. 2118 EDA 2002 dated March 11, 2004 affirming the Judgments of Sentence of the Court of Common Pleas of Philadelphia County imposed June 10, 2002 at No. 0204, May Term 2001

847 A.2d 67 (Pa. Super. Ct. 2004) ARGUED: October 17, 2005

OPINION

MR. CHIEF JUSTICE CAPPY

DECIDED: December 27, 2005

This court granted a limited appeal to consider the propriety of the trial court's decision to give a "no adverse inference" instruction in a multi-defendant case when one defendant requests the instruction and the other defendant requests that the instruction not be given.1 The Superior Court concluded that the trial court should give the instruction under these circumstances. For the reasons stated herein, we affirm.

The "no adverse inference" instruction makes clear that it is the defendant's decision whether to testify in a particular case and instructs the jury that it cannot "draw any inference of guilt, or any other inference adverse to the defendant, from the fact that [he] [she] did not testify." Pennsylvania Standard Criminal Jury Instructions, 3.10A.

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Appellant, Miguel Garcia, and his co-defendant at trial, Antonio Lambert, were arrested and charged in relation to the killing of Mary Edmond.2 Following the presentation of the Commonwealth's case,3 the parties discussed with the court whether a "no adverse inference" instruction should be given. N.T., 6/10/2002, at 10-14. Appellant requested that a "no adverse inference" instruction not be given and Lambert requested that the instruction be given. The trial court gave the instruction, charging the jury as follows: Ladies and gentlemen, it is entirely up to each defendant in every criminal trial whether or not to testify. Each defendant has an absolute right founded on the Constitution to remain silent. You must not draw any inference of guilt or any other inference adverse to a defendant from the fact that he did not testify. N.T. 6/10/2002, at 23-24. Following the instruction, Appellant stated that he did not have any exceptions to the charge given by the trial court. Id. at 55. The jury found Appellant guilty of second-degree murder, robbery, and criminal conspiracy. The trial court sentenced Appellant to life in prison for the murder conviction and a concurrent term of five to ten years of imprisonment on the conspiracy charge.4 On appeal, the Superior Court affirmed the judgment of sentence. Garcia, supra. In his appeal to the Superior Court, Appellant raised numerous issues, including the challenge to the trial court's decision to give the "no adverse inference" charge. The Superior Court rejected Appellant's challenge, explaining that the trial court was confronted with two alternatives, either to "violate the constitutional rights of the defendant who requested [the charge]" or to sever the trials after the Commonwealth had presented its case and the

2

The facts underlying the current convictions are not relevant to the instant appeal and can be found at Commonwealth v. Garcia, 847 A.2d 67 (Pa. Super. Ct. 2004).
3

Neither defendant presented any evidence in his defense.

4

The court concluded that the robbery conviction merged with the second-degree murder conviction for purposes of sentencing. N.T., 6/10/2002, at 95-96.

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defendants had "made their strategic decisions concerning whether to testify and whether to request the `no adverse inference' instruction." Id. at 74. When faced with these competing concerns, the court concluded that the co-defendant's "constitutional right to have the instruction read trumped Appellant's strategic request that it not be read." Id. at 75. Accordingly, the court affirmed the trial court's decision to the give the charge. Following the Superior Court's decision, Appellant filed a Petition for Allowance of Appeal. This court granted Appellant's Petition, limited to the following question: Is it error for the trial court to give a "no adverse inference" instruction in a multiple-defendant trial where one defendant requests the instruction and the other defendant waives his or her right to the instruction? Commonwealth v. Garcia, 858 A.2d 1161 (Pa. 2004). The court further directed the parties to address the impact of Commonwealth v. Edwards, 637 A.2d 259 (Pa. 1993), which held that a trial court's decision to give a "no adverse inference" instruction over a defendant's objection in a single defendant case amounted to per se reversible error. 5 Garcia, 858 A.2d at 1161. In support of his position, Appellant contends that the trial court committed per se reversible error by giving the "no adverse inference" instruction when he specifically requested that the charge not be given. According to Appellant, the Superior Court ignored the fact that under Edwards, he has a constitutional right not to have the instruction read to the jury, that Edwards must be followed in a multi-defendant case, and that following Edwards, if such an instruction is given after such a request, it constitutes per se reversible error. Alternatively, Appellant offers two solutions to avoid a conflict with Edwards in a multi-defendant case; he proposes that the trial court can either make clear that the

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This author filed a concurring and dissenting opinion in Edwards, arguing against the imposition of a per se rule.

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instruction only refers to the defendant who requested the instruction, or the court can sever the cases solely for purposes of instructing the jury. The Commonwealth responds that this issue was waived when Appellant failed to object to the charge as required by Rule 647(b) of the Pennsylvania Rules of Criminal Procedure.6 Alternatively, the Commonwealth argues that the trial court was required by the United States and Pennsylvania Constitutions to give the instruction when it was requested by Lambert. Carter v. Kentucky, 450 U.S. 288 (1981); Commonwealth v. Lewis, 598 A.2d 975 (Pa. 1991). The Commonwealth points out that giving such an instruction over the objection of a defendant does not violate the United States Constitution. Lakeside v. Oregon, 435 U.S. 333 (1978). Furthermore, the rule announced in Edwards was of nonconstitutional dimension and only applies in a case involving a single defendant. The Commonwealth urges this court to reverse Edwards, arguing that the basis for the rule announced in Edwards has been eroded. Lastly, in the event that this court does not overrule Edwards in its entirety, the Commonwealth argues that, at the very least, the per se rule announced in Edwards should be reversed, and this court should consider Appellant's claim under a harmless error standard. Applying such a standard in this case, the Commonwealth concludes that any such error was harmless. Turning first to the Commonwealth's contention that the issue in this case was waived when Appellant failed to object to the charge as required by Rule 647(b), the response to this argument is controlled by our recent decision in Commonwealth v. Pressley, __ A.2d __, 2005 WL 3203051 (Pa. November 29, 2005). In Pressley, we clarified the proper procedure to preserve an issue respecting proposed jury instructions
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Rule 647(B) provides that: No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.

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under the Pennsylvania Rules of Criminal Procedure. Consistent with the Commonwealth's position, we held that the Rules "require a specific objection to the charge or an exception to the trial court's ruling on a proposed point to preserve an issue involving a jury instruction." Id. at *3. Ultimately, however, we deemed the clarification to apply

prospectively only, and did not apply it to the appellant in Pressley. Thus, we remanded the case for the lower court to consider the merits of the appellant's claims respecting his proposed points for charge. Id. at *4. Consistent with our final disposition in Pressley, the clarification to the Rules announced in Pressley is not applicable to the instant case. Accordingly, Appellant did not waive this issue by failing to raise a specific objection or exception at trial to the "no adverse inference" instruction. Having concluded that Appellant did not waive his challenge to the instruction, we now consider the question that was the subject of our grant of allocatur. The genesis of the "no adverse inference" charge is the Fifth Amendment to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution, which provide that a criminal defendant cannot be compelled to be a witness7 or give evidence8 against himself or herself. In Carter v. Kentucky, 450 U.S. 288 (1981), the United States Supreme Court held that the Fifth Amendment protection required a trial court to give a "no adverse inference" instruction following a defendant's request. In Commonwealth v. Lewis, 598 A.2d 975 (Pa. 1991), this court explained that Article 1, Section 9 "carefully safeguards the right of an accused to stand silent at his or her trial, without adverse consequence." Id. at 978-79. Furthermore, while we had never held that such a charge was mandated when requested, we indicated that "such a belief has been axiomatic in our jurisprudence." Id. at 979. Thus,

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U.S. CONST. amend. V PA. CONST. art. 1,

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