Philadelphia Criminal Defense Blog

Zak Goldstein 2/12/26 Zak Goldstein 2/12/26

Third Circuit: A General Rule 29 Motion Does Not Preserve Specific Sufficiency of the Evidence Arguments for Appeal

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of United States v. Abrams, Nos. 24-1998, 24-3003 (3d Cir. 2026), holding that a bare, non-specific motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 does not preserve every sufficiency of the evidence argument a defendant may later want to raise on appeal. This is an important decision for criminal defense lawyers practicing in federal court because it means that if you do not articulate your specific sufficiency challenges at trial, meaning provide the reasons for the sufficiency challenge at time time you move for a new trial or judgment of acquittal in the trial court, you will be limited to plain error review on appeal, which is an extremely difficult standard to meet.

The Facts of United States v. Abrams

The defendant in this case was convicted at a nine-day jury trial on 48 criminal counts, including wire fraud, mail fraud, aggravated identity theft, money laundering, unlawful monetary transactions, obstruction of justice, and making false statements. The charges arose from a scheme in which the defendant solicited investors for his clean energy startup by providing forged documents and false financial information. He then diverted investor funds for personal use, including purchasing a residence in South Carolina. The District Court imposed a 72-month prison sentence and ordered approximately $1.2 million in restitution.

The Rule 29 Motion at Trial

At the close of the government's case, the defendant moved for judgment of acquittal under Rule 29(a). The entire colloquy was remarkably brief:

THE COURT: Now that you are going to rest, are there motions?
DEFENSE COUNSEL: Yes. I move for judgment of acquittal on Rule 29(a). I waive argument.
GOVERNMENT COUNSEL: Subject to the pending stipulation, there's more than enough evidence in the record to justify all 48 counts in the indictment for a myriad of Title 18 offenses.
THE COURT: It's clear that the presentation of evidence so far if believed by the jury would certainly satisfy the government's burden of proof beyond a reasonable doubt, and so the Rule 29 motion is denied.

That was it. The defendant made no specific arguments about which elements of which offenses the government had allegedly failed to prove. He failed to identify any particular weaknesses in the evidence. He simply made a bare motion for an acquittal, with argument expressly waived.

On appeal, the defendant then raised a host of specific sufficiency arguments he had never presented to the trial court, including challenges to whether the government had proven the "money or property" element of fraud and whether the evidence established specific intent to defraud.

The Third Circuit's Holding on Preservation

The Third Circuit held that because Abrams made only a general, non-specific Rule 29 motion, he had not preserved his specific sufficiency arguments for appellate review. The Court applied plain error review instead of the de novo standard that ordinarily applies to sufficiency challenges.

The Court grounded its analysis in United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), which drew a careful distinction between “issues” and “arguments.” Under Joseph, a single “issue” can encompass more than one discrete “argument.” To preserve a specific argument for appeal, a party must raise the same argument, not merely the same broader issue, in the district court. Merely raising an issue that encompasses the appellate argument is not enough.

The Court had previously applied this framework to Rule 29 motions in United States v. Williams, 974 F.3d 320, 361 (3d Cir. 2020), holding that when a Rule 29 motion raises specific grounds, all arguments not raised are unpreserved. But Williams expressly left open the question of whether a broadly stated Rule 29 motion, meaning one that raises no specific grounds at all, preserves all sufficiency arguments. In United States v. Johnson, 19 F.4th 248, 255 n.6 (3d Cir. 2021), the Court reaffirmed that Williams did not hold that a general Rule 29 motion preserves all sufficiency arguments.

In Abrams, the Court squarely decided that open question: a general Rule 29 motion does not preserve all sufficiency arguments later raised on appeal. This holding was driven by two principles of preservation doctrine. First, a party must put the district court “squarely on notice” of the point at issue, giving the court a chance to consider and resolve the matter in the first instance. Second, arguments must be sufficiently particularized and framed as specific arguments because judges “are not clairvoyant” and need not “anticipate and join arguments that are never raised by the parties.”

The Court acknowledged that several other circuits have held (often with little analysis) that a broadly stated Rule 29 motion without specific grounds preserves the full array of sufficiency challenges for appeal. The Third Circuit declined to follow that approach, finding it inconsistent with preservation principles and noting that it would create a perverse incentive for defense lawyers to say as little as possible in the district court in order to save their best arguments for appeal. The Court cited Judge Oldham's concurrence in United States v. Kieffer, 991 F.3d 630, 638-39 (5th Cir. 2021), which observed that this double standard “encourages defendants to say as little as possible in the district court and to save their good arguments as 'gotchas!' for appeal.”

What Happens Under Plain Error Review

Because Abrams had not preserved his sufficiency arguments, the Third Circuit reviewed them only for plain error under United States v. Olano, 507 U.S. 725 (1993). That standard requires a showing that (1) there was an error, (2) the error was plain, (3) the error affected substantial rights, and (4) not correcting the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. An insufficiency claim succeeds under this standard only where affirmance would produce a '“manifest miscarriage of justice,” meaning the record must be devoid of evidence of guilt or the evidence must be so tenuous that a conviction is shocking. United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014). That is an extremely high bar. Unsurprisingly, the Third Circuit found no plain error in Abrams, noting that the evidence of fraud was overwhelming.

Facing Federal Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 2/11/26 Zak Goldstein 2/11/26

Attorney Goldstein Obtains $1.75 Million Settlement for Wrongfully Convicted Man Who Spent More Than a Decade in Prison

Philadelphia criminal defense and civil rights attorney Zak Goldstein recently obtained a $1.75 million settlement against the City of Philadelphia on behalf of a man who was wrongfully convicted and spent more than ten years in prison due to the prosecution's failure to disclose critical evidence. The settlement resolves a federal civil rights lawsuit that was filed after Attorney Goldstein first won the client's freedom by successfully litigating a Post-Conviction Relief Act (PCRA) Petition based on a Brady violation.

The Wrongful Conviction

Our client was convicted and sentenced to a lengthy prison term based on evidence that was fundamentally undermined by materials the prosecution never turned over to the defense. For more than a decade, he sat in prison for a crime while the Commonwealth withheld exculpatory evidence that could have changed the outcome of his case. As is far too common in wrongful conviction cases, the prosecution's failure to disclose this evidence deprived both the defense and the jury of information that was essential to a fair trial.

The PCRA Victory: Proving the Brady Violation

After being retained to investigate the case, Attorney Goldstein uncovered evidence that the prosecution had violated its obligations under *Brady v. Maryland* by withholding material, exculpatory evidence from the defense. Under Brady, the government is required to turn over any evidence that is favorable to the defense and material to the outcome of the case. The suppression of such evidence violates the defendant's constitutional right to due process.

Attorney Goldstein filed a PCRA Petition arguing that the withheld evidence would have significantly impacted the outcome of the trial and that the conviction should be vacated. The PCRA court agreed, and the conviction was overturned. After more than ten years of wrongful imprisonment, our client was finally freed.

The Civil Rights Lawsuit and $1.75 Million Settlement

Following the successful PCRA litigation, Attorney Goldstein filed a civil rights lawsuit against the City of Philadelphia on behalf of his client. The lawsuit alleged that the City, through its police officers and prosecutors, violated our client's constitutional rights by suppressing exculpatory evidence, leading to a wrongful conviction and more than a decade of lost freedom.

The case ultimately settled for $1.75 million. While no amount of money can truly compensate someone for the loss of more than ten years of their life, the settlement provides a measure of accountability and recognition of the harm caused by the government's misconduct.

Wrongful Convictions and Brady Violations

This case is a reminder of the devastating consequences that can result when the government fails to meet its constitutional obligations. Brady v. Maryland requires prosecutors to disclose evidence that is favorable to the defense, and the failure to do so can lead to wrongful convictions, destroyed lives, and years of unjust imprisonment. Unfortunately, these violations are not as rare as they should be, and many wrongful convictions go undetected because the suppressed evidence is never uncovered.

Attorney Goldstein and the attorneys at Goldstein Mehta LLC have extensive experience handling PCRA Petitions, criminal appeals, and civil rights claims arising from wrongful convictions and government misconduct. We have successfully obtained relief for clients who have been wrongfully convicted, including winning exonerations, new trials, and significant civil rights settlements.

Facing Criminal Charges or a Wrongful Conviction?

If you or a loved one has been wrongfully convicted or believes that the prosecution withheld evidence in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 2/10/26 Zak Goldstein 2/10/26

PA Supreme Court: Third-Party Confession Can Be a Newly Discovered Fact Under the PCRA

The Pennsylvania Supreme Court has issued a significant decision in Commonwealth v. Brown, No. 3 WAP 2025 (Pa. Jan. 28, 2026), holding that a third-party confession to another person may constitute a newly discovered fact under the Post Conviction Relief Act ("PCRA") and that such a confession is not per se inadmissible hearsay for purposes of establishing the PCRA's timeliness exception. The Court reversed the Superior Court's order and remanded for an evidentiary hearing.

The Facts of Commonwealth v. Brown

In 2002, the defendant was convicted of third-degree murder following a jury trial in Beaver County for the killing of Aliquippa Police Officer James Naim. Officer Naim was shot in the head while on foot patrol in the Linmar Terrace Housing Plan on March 15, 2001. The defendant was sentenced to twenty to forty years of incarceration.

At trial, the Commonwealth's case rested largely on the testimony of Darnell Hines, who claimed he saw the defendant commit the shooting, and Joseph Kirkland, who said the defendant told him he had shot a man. Notably, both Hines and Brown's co-defendant Acey Taylor later recanted their statements implicating the defendant, with Hines claiming in 2016 that Aliquippa police officers pressured him to falsely implicate the defendant.

Throughout the case, there was significant evidence suggesting that another individual, Anthony Tusweet Smith, was the actual shooter. Before trial, the defense sought to introduce evidence that Tusweet Smith had offered to pay approximately $20,000 to kill a police officer, was seen with two 9 mm handguns (the type of gun used in the killing), and that a police dog had tracked toward Tusweet Smith's grandmother's house on the night of the shooting. The trial court barred this evidence.

The Dorsett/Tusweet Smith Confession

Nearly two decades after Brown's conviction, a critical piece of evidence surfaced. In 2018, while his appeal was pending, the defendant learned from a fellow inmate, Travon Dawkins, about a statement made by Anthony "Ali" Dorsett as part of a federal plea deal. Dorsett told federal officials that while he was incarcerated in the Beaver County Jail, Tusweet Smith confessed to him that he, not the defendant, shot and killed Officer Naim. Tusweet Smith also reportedly told Dorsett how he obtained the gun used in the killing. The Commonwealth never disclosed this statement to the defendant.

The defendant filed his fourth PCRA petition in June 2021, raising a Brady v. Maryland claim based on the Dorsett/Tusweet Smith statement and invoking the newly discovered facts timeliness exception under 42 Pa.C.S. § 9545(b)(1)(ii). The PCRA court dismissed the petition without a hearing, holding that the Dorsett/Tusweet Smith statement was inadmissible hearsay and therefore could not establish the newly discovered facts exception. The Superior Court affirmed on alternative grounds.

The Supreme Court's Holding

The Supreme Court reversed, issuing several important holdings in an opinion by Justice Wecht.

A third-party confession is a newly discovered fact. The Court rejected the Commonwealth's argument that because the defendant had previously known about a different confession by Tusweet Smith (to a different person, Steve Zambory), the Dorsett confession was merely a "new source" for a previously known fact. The Court held that two separate confessions, made to two different witnesses at two different times, are two distinct facts for purposes of the newly discovered facts exception.

Admissibility of evidence is not the test at the timeliness stage. The Court clarified an important distinction between the pleading stage and the hearing stage of a PCRA petition. At the pleading stage, a petitioner need only allege facts that would establish the timeliness exception and support those allegations with affidavits and documentary evidence. The petitioner does not need to prove at that point that the evidence is admissible. Admissibility becomes relevant only at the evidentiary hearing itself, where the petitioner must prove contested facts through admissible evidence.

A third-party confession may be admissible at a PCRA hearing. The Court held that the lower courts erred in concluding that the Dorsett/Tusweet Smith statement was inadmissible hearsay that could never support the newly discovered facts exception. the defendant alleged in his petition that he intends to call both Tusweet Smith and Dorsett as witnesses. If Tusweet Smith testifies, his testimony is not hearsay. If he denies the confession, the defendant can impeach him with Dorsett's plea deal statement. If Tusweet Smith refuses to testify, his confession to Dorsett may be admissible as a statement against penal interest under Pa.R.E. 804(b)(3). The lower courts' premature dismissal denied the defendant the opportunity to present this evidence.

The Court limited Commonwealth v. Yarris. While Yarris had been interpreted to stand for the proposition that a third-party confession could never be a newly discovered fact, the Supreme Court clarified that Yarris does not support such a broad rule. A third-party confession can constitute a newly discovered fact so long as the petitioner alleges and proves the existence of the predicate fact, that it was previously unknown, and that it could not have been ascertained earlier through due diligence.

The Takeaway

Commonwealth v. Brown is a major win for defendants seeking post-conviction relief in Pennsylvania. It reinforces several key principles. First, the newly discovered facts exception to the PCRA's time bar must not be conflated with the merits of the underlying claim. The function of the timeliness exception is to open the courthouse door — not to determine whether the petitioner will ultimately prevail. Second, lower courts cannot deny an evidentiary hearing simply by concluding, at the petition stage, that the evidence a petitioner intends to present would be inadmissible. That determination can only be made at a hearing. Third, and perhaps most critically, the decision ensures that evidence pointing to a defendant's potential innocence — a confession by another person to the crime — cannot be categorically excluded from PCRA proceedings.

As the Court noted, requiring a petitioner to prove admissibility before even being granted a hearing would impose an impossible standard, as virtually everything in a PCRA petition contains hearsay at the pleading stage.

Contact a Philadelphia Criminal Defense Lawyer

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We offer a complimentary 15-minute criminal defense strategy session to anyone who is facing criminal charges or is under investigation. Call 267-225-2545 to discuss your case with an experienced and understanding defense attorney today.

Zak Goldstein 2/7/26 Zak Goldstein 2/7/26

PA Supreme Court: Trial Court May Not Consolidate Separate Sexual Assault Cases Based Solely on “Similar” Allegations, and Rape Kits Are Testimonial Under the Confrontation Clause

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Walker, holding that the trial court abused its discretion when it consolidated three separately-charged CODIS hit rape cases for a joint trial under the common plan, scheme, or design exception to the rule against propensity evidence.

The Court also held that the admission of rape kit reports without testimony from the nurse examiners who actually prepared them violated the defendant's constitutional right to confrontation. This is a landmark decision that significantly tightens the standard for when the prosecution may try separate offenses together and provides important new protections for defendants in sexual assault cases.

The Facts of Commonwealth v. Walker

In July of 2019, the defendant was arrested and charged with the rape of three different women on three separate occasions — P.C. in January of 2011, T.A. in December of 2014, and B.H. in January of 2015. Each complainant underwent a sexual assault examination after the attack, and DNA from the perpetrator was recovered and uploaded to the Combined DNA Index System (CODIS). In December of 2018, a CODIS search revealed that the male DNA samples from all three victims matched, and that DNA profile was later linked to Walker.

In each case, the defendant met the victim, a stranger, on a public street in Philadelphia, convinced her to follow him to a secluded area, and then sexually assaulted her. However, the specific details of each assault varied significantly. In one case, the perpetrator used a knife; in another, he punched the victim in the face; in the third, he struck the victim with a tire iron. He robbed only one of the three victims. One rape occurred near midnight while the other two occurred during the late morning. Each assault took place in a different Philadelphia neighborhood.

The Commonwealth moved to consolidate all three cases for a joint trial, arguing that the evidence of each assault would be admissible at a trial for the others because the assaults shared sufficient similarities to establish a common plan, scheme, or design. Despite the defendant’s objection, the trial court granted the Commonwealth's motion.

Prior to trial, the defendant also filed a motion in limine seeking to preclude the Commonwealth from introducing the rape kit reports prepared by the sexual assault nurse examiners at the Philadelphia Sexual Assault Response Center (PSARC) for two of the three victims. The Commonwealth acknowledged that the nurses who actually performed the examinations no longer worked at PSARC. Instead, the prosecution planned to introduce the reports through the testimony of PSARC's nurse manager and clinical director who did not personally conduct any of the examinations. The trial court denied the defendnat’s motion.

At trial, the defendant was convicted on numerous charges including rape, involuntary deviate sexual intercourse, and sexual assault. He was sentenced to an aggregate of 28 to 56 years' imprisonment and classified as a Tier III sex offender with lifetime registration under SORNA. The Superior Court affirmed, and the Supreme Court granted allowance of appeal.

The Supreme Court's Ruling on Consolidation

The Pennsylvania Supreme Court reversed, finding that the trial court abused its discretion in consolidating the three cases. Under Pennsylvania Rule of Criminal Procedure 582, separate offenses may be tried together only if the evidence of each offense would be admissible in a separate trial for the other. The key question was therefore whether evidence of the other rapes would have been admissible under the common plan, scheme, or design exception to Pennsylvania Rule of Evidence 404(b), which generally bars the prosecution from introducing evidence of a defendant's other bad acts to show criminal propensity.

Critically, the Court took the opportunity to reshape the law on this issue. Over the years, Pennsylvania courts had applied an increasingly diluted version of the common plan, scheme, or design exception. What started as a narrow exception, requiring either a true overarching plan linking crimes together or a modus operandi so distinctive as to be a signature, had devolved into a vague “logical connection” test that merely required “sufficient similarities” between the crimes. The Court recognized that this relaxed standard effectively gutted Rule 404(b)’s core protection against propensity evidence.

Writing for the majority, Justice McCaffery abrogated the “logical connection” test and returned to the original two-pronged framework from Shaffner v. Commonwealth, 72 Pa. 60 (1872). Going forward, the Commonwealth may consolidate separately-charged offenses under the common plan, scheme, or design exception only where it can establish either: (1) the offenses constitute “signature crimes,” meaning the facts are so unique and distinctive that they must have been committed by the same perpetrator; or (2) the offenses were linked to achieve a common goal, meaning the bad acts are part of an integrated plan to accomplish a specific objective.

Applying this newly clarified standard to the defendant’s case, the Court found that neither exception was satisfied. First, the three rapes did not qualify as signature crimes. While all three involved stranger assaults, the specific details varied considerably. The perpetrator used different weapons (or none at all), initiated contact differently, and committed the assaults in different neighborhoods at different times. These were, as the Court put it, characteristics typical of any stranger rape case, not a unique signature. Second, there was no evidence of a preconceived plan linking the three crimes together to achieve a common goal. The evidence simply showed that the perpetrator raped women when presented with the opportunity to do so. A general desire to commit the same type of crime is not the kind of common plan or scheme that Rule 404(b) contemplates.

The Court also emphasized an important procedural point. The decision to consolidate cases is made pretrial, before the defendant has revealed any defense strategy. The Commonwealth cannot justify consolidation based on its anticipatory rebuttal of a defense, such as a consent defense, that the defendant has not yet raised. A defendant has no duty to present evidence and may instead rely on the presumption of innocence and the Commonwealth's burden of proof.

The Supreme Court's Ruling on the Rape Kit Reports

The Supreme Court also ruled in the defendant’s favor on the Confrontation Clause issue. The Sixth Amendment and Article I, Section 9 of the Pennsylvania Constitution guarantee criminal defendants the right to confront the witnesses against them. In a line of cases including Crawford v. Washington, Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico, and most recently Smith v. Arizona, the United States Supreme Court has made clear that the Confrontation Clause applies to forensic reports and that the prosecution may not introduce testimonial hearsay, including forensic reports, without providing the defendant an opportunity to cross-examine the person who actually prepared the report.

The Pennsylvania Supreme Court held that rape kit reports are testimonial in nature. The reports are formally titled “Sexual Assault Forensic Examination Forms,” and the very word “forensic” signals their evidentiary purpose. The reports were created primarily to establish past events and collect evidence relevant to a potential criminal prosecution, not simply to provide medical treatment. The Court also noted that Pennsylvania statute explicitly defines a rape kit as a “sexual assault evidence collection kit,” and the law requires health care facilities to notify law enforcement of the alleged assault.

Because the rape kit reports were testimonial and were offered for their truth at trial, the Confrontation Clause required the testimony of the nurse examiners who actually prepared them. The testimony of PSARC’s clinical director, who did not personally perform any of the examinations, was not an adequate substitute. The Court rejected the Commonwealth's argument that the reports were admissible under the medical records or business records exceptions to the hearsay rule. Hearsay exceptions cannot override the Confrontation Clause. When an out-of-court statement constitutes testimonial hearsay, it may not be admitted at trial unless the defendant had the opportunity to cross-examine the declarant, regardless of whether the statement would otherwise qualify as a hearsay exception.

The Takeaway

Commonwealth v. Walker is one of the most significant Pennsylvania Supreme Court decisions in recent years for criminal defendants. On the consolidation issue, the Court meaningfully strengthened the protections of Rule 404(b) by rejecting the watered-down “logical connection” test and demanding that the Commonwealth meet a real standard before it can try separate cases together. This matters because consolidation is enormously prejudicial. A jury hearing about multiple allegations is far more likely to convict on all of them than a jury considering each charge independently. Going forward, the prosecution will need to show either a true signature crime or a genuine common plan linking the offenses together, rather than simply pointing to broad similarities between different cases.

On the Confrontation Clause issue, the decision provides a clear rule for sexual assault cases: the prosecution must produce the actual nurse examiner who prepared the rape kit report, or it cannot introduce the report. This prevents the Commonwealth from relying on a “surrogate witness” who simply reads the absent nurse’s report into the record.

Defense attorneys handling sexual assault cases, cases involving motions to consolidate, or cases involving the admission of forensic reports should take note of this decision and use it to protect their clients’ rights.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.