J-S08037-24
2024 PA Super 55
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRODY BARRETT KLINE :
:
Appellant : No. 942 MDA 2023
Appeal from the Judgment of Sentence Entered April 4, 2023
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000775-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRODY BARRETT KLINE :
:
Appellant : No. 943 MDA 2023
Appeal from the Judgment of Sentence Entered April 4, 2023
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000973-2022
BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: MARCH 25, 2024
In these consolidated appeals,1 Brody Barrett Kline appeals from the
April 4, 2023 aggregate judgment of sentence of 799 to 1598 months’
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* Former Justice specially assigned to the Superior Court.
1Appellant’s appeals at Nos. 942 MDA 2023 and 943 MDA 2023 were sua
sponte consolidated by this Court on November 14, 2023.
J-S08037-24
imprisonment imposed after a jury found him guilty of involuntary deviate
sexual intercourse (“IDSI”) with a child; rape of a child; incest of a minor;
indecent exposure; eight counts of corruption of minors; four counts of
indecent assault; two counts of aggravated indecent assault; and criminal
attempt – indecent assault.2 After careful review, we affirm the judgment of
sentence.
The trial court summarized the relevant factual background of this case
as follows:
Appellant’s convictions stem from the long-term
systematic abuse of his five victims, all his minor
children, each of whom testified at trial as to such
abuse. Their testimony was further reinforced by the
testimony of investigators including police, a forensic
nurse, a therapist, a forensic scientist, and a child
forensic interviewer. Beyond the direct testimony
offered by the victims, evidence was offered to show
semen on a victim’s underwear, and signs of abuse in
the victims.
Trial court opinion, 8/14/23 at 1.
On October 31, 2022, Appellant proceeded to a jury trial before the
Honorable Harry M. Ness. During trial, Appellant’s wife, Emily Kline (“Wife”),
testified that after she was made aware of the sexual abuse allegations from
her minor daughters, she confronted Appellant on two occasions. Notes of
testimony, 10/31-11/4/22 at 270-271, 276, 300. Wife testified that in both
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2 18 Pa.C.S.A. §§ 3123(b); 3121(c); 4302(b)(1); 3127(a); 6301(a)(1)(i), (ii);
3126(a)(7), (8); 3125(a)(7), (b); and 901(a), respectively.
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instances, Appellant did not admit or deny the allegations of sexual abuse and
merely “got angry” and that she “couldn’t make sense of [Appellant’s response
or lack thereof].” Id.
Following a five-day jury trial, the trial court found Appellant guilty of
rape of a child, IDSI of a child, and related offenses on November 4, 2022.
As noted, Appellant was sentenced to an aggregate term of 799 to 1598
months’ imprisonment on April 4, 2023. See notes of testimony, 4/4/23 at
47-49.3 The trial court also found that Appellant meets the criteria to be
classified as a sexually violent predator (“SVP”). Appellant filed timely post-
sentence motions which were denied by the trial court on June 1, 2023. This
timely appeal followed on June 30, 2023.4
On appeal, Appellant raises only one issue for our review:
Whether the trial court abused its discretion when it
gave the tacit admission jury instruction, over
[Appellant’s] objection, where there was no tacit
admission made and giving the instruction violated
[Appellant’s] right to not have his silence used against
him in a way that was exceedingly prejudicial?
Appellant’s brief at 4.
Our standard of review in assessing whether a trial court erred in
fashioning its instructions to the jury is well settled.
In reviewing a jury charge, we determine whether the
trial court committed a clear abuse of discretion or an
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3 The record reflects that Appellant received 861 days’ credit for time-served.
4 Appellant and the trial court have complied with Pa.R.A.P. 1925.
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error of law which controlled the outcome of the case.
We must view the charge as a whole; the trial court is
free to use its own form of expression in creating the
charge. A trial court has broad discretion in phrasing
its instructions, and may choose its own wording so
long as the law is clearly, adequately, and accurately
presented to the jury for its consideration. Moreover,
it is well-settled that the trial court has wide discretion
in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the
parties and its refusal to give a requested charge does
not require reversal unless the appellant was
prejudiced by that refusal.
Commonwealth v. Williams, 176 A.3d 298, 314 (Pa.Super. 2017) (citations
omitted), appeal denied,
187 A.3d 908 (Pa. 2018).
Appellant contends that the trial court abused its discretion when it gave
a tacit admission jury instruction in violation of his Fifth Amendment right to
not have his silence used against him. Appellant’s brief at 16-25. We
disagree.
“The Fifth Amendment was enacted to protect against self-incrimination,
whether [the suspect is] in custody or not, charged with a crime, or merely
being questioned during the investigation of a crime.” Commonwealth v.
Molina, 33 A.3d 51, 63 (Pa.Super. 2011) (en banc) (citation omitted),
affirmed,
104 A.3d 430 (Pa. 2014). “[T]he government may not use ...
silence as substantive evidence of guilt when a defendant chooses not to
testify. ... [That silence] may also not be used against a defendant who
remained silent during the investigation of a crime.”
Id. (citation omitted).
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However, the Fifth Amendment “does not impose a prima facie bar
against any mention of a defendant’s silence.” Id. (emphasis added).
Instead, the Fifth Amendment protects against the prosecution’s exploitation
of a defendant’s right to remain silent. See
id. “[A] mere reference to pre-
arrest silence does not constitute reversible error where the prosecution does
not exploit the defendant’s silence as a tacit admission of guilt.”
Commonwealth v. Adams,
104 A.3d 511, 512-513 (Pa. 2014).
In the instant matter, the trial court gave the following instruction to
the jury over Appellant’s objection:
[Appellant] did not testify in this case, and it’s entirely
up to the defendant in every criminal trial whether or
not to testify. He has an absolute right founded upon
the constitution of the Commonwealth of Pennsylvania
and the United States of America not to testify and to
remain silent, and you should not draw any inference
of guilt or any other inference adverse to the
defendant from the fact that he did not testify.
There was evidence presented that [Appellant] failed
to deny an accusation directed at him by [Wife] on
October 19th of 2020. The law treats this statement
as what’s called a tacit admission and is firmly
entrenched under law.
While ordinarily a defendant’s response to the
allegations would be treated as hearsay, the only truth
function to be derived is that the defendant did or said
nothing. When considering this particular piece of
evidence, you should consider whether [Wife] made
the statement in [Appellant’s] presence, [Wife] made
the statement within the immediate area surrounding
[Appellant], [and Appellant] understood the
statement.
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The statement must have embraced a fact within
[Appellant’s] knowledge, [Appellant] must have been
able to speak physically, and [Appellant] was not
operating from a psychological state that prevented
his ability to speak in the surrounding circumstances
that would have necessitated a reply.
If you believe this evidence, you may consider it as
tending to prove [Appellant’s] consciousness of guilt,
but you are not required to do so. You should consider
and weigh this evidence along with all the other
evidence in this case.
Notes of testimony, 10/31-11/4/22 at 634-635.
Upon review, we discern no abuse of discretion on the part of the trial
court in providing this instruction to the jury. The record reflects that
Appellant’s tacit admission is evident from the following two exchanges during
trial:
Q. When you looked at the underwear, what did
you – did you notice anything? Did you see
anything on them?
[Wife:] Yes. There was semen in the underwear.
....
Q. Do you remember confronting [Appellant]?
[Wife:] I did. I went over and he was still lying down
and I asked him what – what is this, what
did you do?
....
Q. And when you confronted him about that, do
you remember his reaction?
[Wife:] It didn’t make any sense. There was no
denying or admitting. He got angry, but he
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was always angry. You couldn’t make sense
out of it.
....
Q. Do you remember what [Appellant’s]
response was when you confronted him
about [victim G.K.] and [victim H.K.]?
[Wife:] Again it was the same as – there was no
denying or admitting. It was just anger. It
seemed like – so it didn’t go anywhere.
There was no sense of it again.
Id. at 269-271, 276.
Courts in this Commonwealth have continually recognized that evidence
of tacit admissions are permitted in Pennsylvania, except in the narrow
circumstances where such an introduction burdens a defendant’s
constitutional right to remain silent. See, e.g. Commonwealth v. Hawkins,
701 A.2d 492, 509 (Pa. 1997) (stating, “evidence of a defendant’s silence in
refusing to deny guilt after an accusation of guilt has been made (often
referred to as a tacit admission) is generally not admissible where the
silence occurred while the defendant is in police custody because a
contrary policy would effectively vitiate a defendant’s constitutionally
guaranteed right against self-incrimination.” (emphasis added)), cert.
denied,
523 U.S. 108 (1998).
The rule of evidence is well established that, when a
statement made in the presence and hearing of a
person is incriminating in character and naturally calls
for a denial but is not challenged or contradicted by
the accused although he has opportunity to speak, the
statement and the fact of his failure to deny it are
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admissible in evidence as an implied admission of the
truth of the charges thus made.
Commonwealth v. Barnett, 121 A.3d 534, 546 (Pa.Super. 2015) (citation
omitted), appeal denied,
128 A.3d 1204 (Pa. 2015), cert. denied,
578 U.S.
1014 (2016).
In the instant matter, Appellant’s silence was in direct response to
sexual abuse accusations levied against him by Wife prior to his arrest. Thus,
his Fifth Amendment right against self-incrimination was not implicated. The
trial court’s instruction to the jury stated that they may, but were not required
to, consider the evidence of Appellant’s failure to respond to Wife’s accusations
as proof of his consciousness of guilt, and not as direct evidence of guilt. See
notes of testimony, 10/31-11/4/22 at 635. The probative value of the
evidence of Appellant’s failure to deny Wife’s accusations that he sexually
abused their minor children, which a reasonable person in similar
circumstances would have done, far exceeded its prejudicial nature.
Based on the forgoing, we find the trial court’s instructions clearly,
adequately, and accurately presented the relevant law to the jury for its
consideration. Appellant’s claim to the contrary, therefore, must fail.
Accordingly, we affirm the trial court’s April 4, 2023 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 03/25/2024
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