Commonwealth v. Dinicola

� 1 The Commonwealth appeals from the Honorable Gordon R. Miller’s order granting David Joseph DiNicola a new trial based on the ineffectiveness of DiNicola’s trial counsel (Trial Counsel). DiNicola had alleged that Trial Counsel was ineffective for not objecting to questioning by the Commonwealth that revealed DiNicola’s pre-arrest silence.

� 2 This is the second time this case has been before this Court. In April 2000, in an opinion written by the late Judge Vincent A. Cirillo, this Court determined that DiNicola had satisfied two of the three elements necessary to establish ineffectiveness of counsel. This Court held that DiNicola’s claim had arguable merit and that the ineffectiveness substantially prejudiced the defendant. We remanded to the trial court on the issue of whether Trial Counsel had “any reasonable basis designed to effectuate his client’s interest when he did not object to the prosecutor’s line of questioning.” Commonwealth v. DiNicola, 751 A.2d 197, 202 (Pa. Super. 2000) (“DiNicola I”). This Court’s decision to remand in DiNicola I was based in part on the erroneous finding that DiNicola did not testify at the original trial and therefore, had not waived his Fifth Amendment right to remain silent. The record establishes that DiNicola did testify at trial. We conclude, however, that this Court’s misapprehension of the record does not invalidate the trial court’s conclusion that Trial Counsel rendered ineffective counsel. Upon review of both the record and the applicable law, we conclude that, regardless of whether DiNicola testified, Trial Counsel should have objected to the Commonwealth’s question that elicited testimony on his pre-arrest silence. Accordingly, we conclude that DiNicola’s claim of ineffectiveness of counsel has arguable merit and that the failure to object was substantially prejudicial. As such, our original order to the trial court remains valid despite the prior panel’s misapprehension of the record. For the following reasons, we conclude that Trial Counsel did not have a reasonable basis for not objecting to the prosecution’s question, and therefore we affirm Judge Miller’s order.