Philadelphia Criminal Defense Blog

Zak Goldstein 2/19/26 Zak Goldstein 2/19/26

PA Supreme Court: Majority of Justices Agree Police Opinions on Guilt and Accusations of Lying Must Be Excluded from Interrogation Videos Played at Trial

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Malcolm, No. 46 EAP 2024 (Pa. 2026), addressing whether accusatory statements and opinions of guilt made by police detectives during a videotaped interrogation must be excluded when the video is played for the jury at trial. Although the Court affirmed the defendant’s conviction, the decision actually reinforces the principle that these types of statements should not come in. The case resulted in a split decision and no opinion commanded a majority, but five of the seven justices agreed that the trial court erred in admitting the detectives’ statements. The two concurring justices found the error to be harmless, resulting in a 4-3 vote to affirm the conviction, but the key takeaway is that a strong majority of the Court has concluded that police opinions about a defendant’s guilt and accusations of lying should be redacted from interrogation videos before they are played for a jury. Defense attorneys should continue to file motions in limine to exclude such statements, and this case shows why doing so is critical.

The Facts of Commonwealth v. Malcolm

On December 22, 2018, the victim was fatally shot outside of Kif's Bar on Market Street in Philadelphia after a birthday party. He was shot once in the head and once in the chest. Another individual was also shot but survived. Police recovered eleven fired cartridge casings from two different firearms and obtained surveillance footage from nearby cameras. The footage depicted an individual in a gray zipper hoodie, black boots, black pants, and white earbuds circling the block before approaching the victim from behind and shooting him twice at close range.

Detective James Burns of the Philadelphia Police Homicide Unit was assigned to the case. Unable to identify the shooter, he sent out a patrol alert with a screenshot from the surveillance footage. The defendant was brought in for questioning. During the interrogation, the defendant consented to a search of his bedroom, where officers recovered a gray hoodie, black boots, and white corded headphones consistent with what the shooter was wearing in the surveillance video. The gray hoodie tested positive for gunshot residue on the right sleeve. DNA testing on the hoodie and other items was inconclusive.

About a month after the defendant’s interview, Officer Robert Lamanna identified the defendant as the suspect in the patrol alert. Officer Lamanna was familiar with the defendant because the defendant frequented his assigned police district and the officer had also viewed the defendant on social media. Officer Lamanna was the only witness who would identify the defendant from the surveillance footage at trial.

The Interrogation Video

At trial, the Commonwealth played portions of the defendant’s videotaped police interrogation for the jury. Throughout the interrogation, Detectives Burns and Harkins made numerous accusatory statements, including telling the defendant “I don't believe that we have the wrong guy,” “I'm telling you that I know that this is you,” “We're quite confident we have the right person here,” and “Do you know how absurd that sounds.” The defendant challenged thirteen specific statements on appeal. Throughout the interrogation, the defendant repeatedly and steadfastly maintained his innocence.

Defense counsel made only two to three broad objections during the video. The trial court paused the video at one point to instruct the jury that only one witness, Officer Lamanna, had identified the defendant, and that the jury should disregard the detective’s references to multiple people having identified him. The trial court also reminded the jury that it was the ultimate finder of fact.

The jury convicted the defendant of first-degree murder, violations of the Uniform Firearms Act, and possessing an instrument of crime. He was sentenced to life imprisonment without the possibility of parole. The Superior Court affirmed, concluding that the statements were distinguishable from those in Commonwealth v. Kitchen, 730 A.2d 513 (Pa. Super. 1999), because none of them “directly” accused the defendant of lying.

The Supreme Court's Decision

The Supreme Court granted review and issued a fractured decision. The Opinion Announcing the Judgment of the Court, authored by Justice Mundy and joined only by Justice Brobson, declined to adopt Kitchen’s categorical rule treating these types of police statements as inadmissible. Instead, the OAJC held that the admissibility of accusatory police statements in interrogation videos should be assessed on a case-by-case basis under Rules 401 and 403. The OAJC found no abuse of discretion in this case, emphasizing that the jury heard the defendant’s repeated denials, the trial court gave curative instructions, and defense counsel had the opportunity to cross-examine the detectives. Only two justices joined this analysis, meaning that is not presidential.

Justice McCaffery, joined by Justice Dougherty, concurred in the result only. This means they agreed to affirm the conviction, but for completely different reasons. The concurrence concluded that the trial court erred in admitting the detectives’ statements. Justice McCaffery found that the statements had at best de minimis relevance, explaining that there is no legal basis under Pennsylvania precedent for the relevance of one witness’s opinion about the credibility of another. He cited the longstanding rule from Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014), that credibility determinations are exclusively for the jury, and noted that Pennsylvania courts have consistently prohibited such opinion testimony even from qualified experts. The concurrence stated that he could see “no circumstances under which such testimony should be considered” and that the statements “should have been excluded.” However, Justice McCaffery found the error to be harmless because the crux of the case was the surveillance video and Officer Lamanna's identification, and the verdict would not have been different without the detectives’ opinions.

Justice Wecht, joined by Chief Justice Todd and Justice Donohue, dissented. The dissent agreed with the concurrence that the statements were erroneously admitted but went further, arguing the error was not harmless. Justice Wecht emphasized that the detectives’ repeated assertions of Malcolm's guilt carried a significant danger of unfair prejudice because of their appearance of authority and their suggestion to the jury that additional inculpatory evidence existed beyond what was presented at trial. The dissent described the detectives’ opinions as coming in through the “Trojan Horse” of the interrogation video, meaning the same opinions that would clearly be inadmissible if offered from the witness stand were allowed in simply because they were on a video. The dissent also found the trial court’s curative instructions insufficient, noting they were directed only at Detective Burns’s false claim that multiple “people” had identified the defendant and did not address the broader pattern of accusatory statements. Where identification was the central issue and the surveillance footage was unclear, the dissent concluded the error was not harmless beyond a reasonable doubt.

The Takeaway

Despite the affirmance of the conviction, this is actually a favorable development for defendants even though it does not help the defendant in this case. Five of seven justices agreed that the detectives’ accusatory statements and opinions of guilt were improperly admitted. The existing law has not changed. Trial courts should continue to exclude police opinions about a defendant’s guilt or credibility from interrogation videos played for a jury, and defense attorneys must continue to file motions in limine to make sure that happens. The Kitchen opinion, while not formally adopted by a majority, reflects what five justices on the current Court believe the Rules of Evidence already require.

The practical lesson from this case is the critical importance of filing a detailed pretrial motion challenging specific portions of an interrogation video. In Malcolm, defense counsel did not file a motion in limine directed at the accusatory statements and made only broad, nonspecific objections at trial. That clearly influenced the outcome. Had counsel preserved the issue more carefully, the result may well have been different given that five justices found error. For defendants facing serious charges where the Commonwealth intends to play an interrogation video at trial, this case shows why it is essential to have an experienced defense attorney who will review the video in advance, file the appropriate motions, and make specific objections on the record.

Facing Criminal Charges or Appealing a Criminal Case? We Can Help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

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, Fraud, and Murder. We have also successfully challenged convictions for murder, firearms charges, rape, and other serious convictions on direct appeal in state and federal court as well as through post-conviction relief act litigation. 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 2/14/26 Zak Goldstein 2/14/26

PA Superior Court: Spouse’s Flight Into Traffic Was a Foreseeable Result of Defendant’s Assault, Not a Superseding Cause

The Pennsylvania Superior Court has decided the case of Commonwealth v. Garcia Arce, No. 405 MDA 2025 (Pa. Super. 2026), holding that a defendant's convictions for involuntary manslaughter and recklessly endangering another person ("REAP") were supported by sufficient evidence where his reckless driving, assault on the victim, and forcible removal of the victim from a vehicle in the median of a busy interstate foreseeably led to the victim’s death. The Court rejected the defendant’s argument that the victim’s decision to run into oncoming traffic constituted a superseding cause that broke the chain of causation. This is an important case for anyone facing involuntary manslaughter charges in Pennsylvania because it illustrates how broadly courts will apply the concept of legal causation even where the defendant did not directly inflict the fatal injury.

The Facts of Commonwealth v. Garcia Arce

The defendant and the victim, his spouse, were traveling westbound on Interstate 80 in Columbia County along with the victim’s elderly mother, who was seated in the back. The defendant. A verbal argument erupted after the defendant told the victim he wanted a divorce.

According to the victim’s mother, the defendant began speeding and swerving across the lane while screaming at the victim, who was trying to sleep. The defendant poked the victim and yelled at him to talk, growing increasingly angry when the victim did not respond. At one point, the victim reached over and turned off the car as the defendant drove into the grassy median of the highway.

Once the SUV stopped in the median just a few feet from the eastbound travel lanes, the situation escalated further. The mother testified that the defendant placed the victim in a chokehold, struck him with his cellphone, and then dragged him out of the vehicle through the driver’s side door. The victim was left standing in front of the SUV, bleeding from his face, just feet from high-speed traffic on a dark stretch of highway.

Moments later, the victim moved into the eastbound lanes and was struck and killed by a truck hauling a trailer. A second vehicle also hit the victim. The coroner testified that but for the events leading to the victim’s removal from the SUV and the assault he suffered, the victim would likely have survived. The coroner also ruled out the victim’s history of bipolar disorder as a contributing factor in his death, and noted that the head and facial injuries from the assault could have impaired his orientation and judgment.

The defendant testified in his own defense and offered a substantially different version of events. He claimed that the victim had grabbed the steering wheel, causing the vehicle to veer into the median, and that the victim then exited the SUV on his own and ran into traffic. However, investigators noted that the defendant gave inconsistent accounts of what happened, including conflicting descriptions of how the victim left the vehicle.

The jury convicted the defendant of involuntary manslaughter and REAP. The trial court had earlier granted a demurrer on an aggravated assault charge. The defendant was sentenced to ten months to two years of incarceration. He appealed.

The Superior Court's Analysis

On appeal, the defendant raised two main arguments: that the evidence was insufficient to sustain his convictions and that the verdict was against the weight of the evidence.

Sufficiency - Causation and Superseding Cause

The defendant’s primary argument was that the victim’s decision to run into traffic was an unforeseeable, independent act that broke the chain of causation. He argued that after the physical altercation ended, the victim voluntarily entered the roadway, and therefore the defendant’s conduct was not the direct cause of the victim’s death.

The Superior Court disagreed. Relying on Commonwealth v. Rementer, 598 A.2d 1300 (Pa. Super. 1991), the Court held that when a defendant’s violent assault causes the victim to flee, the victim’s flight, even into a dangerous situation, is a foreseeable consequence of the defendant’s actions, not a superseding cause. In Rementer, a defendant who violently assaulted a victim was convicted of third-degree murder after the victim fled into the path of a car. The Court held that although the precise mechanism of death was not foreseeable, the risk of serious injury or death was inherent in the situation the defendant created.

The Court applied the same reasoning here. The defendant’s reckless driving, his assault on the victim in the car, and his forcible removal of the victim from the SUV in the median of a busy interstate, in the dark, just feet from high-speed traffic, set in motion the chain of events that led to the victim’s death. The victim’s attempt to flee was a natural and predictable response to the defendant’s conduct. The Court emphasized that a defendant cannot create a dangerous situation through his own reckless behavior and then avoid criminal liability by arguing that the victim's response to that danger was unforeseeable.

Weight of the Evidence

The defendant also argued that the verdict was against the weight of the evidence, primarily attacking the credibility of the victim’s mother. He pointed to her poor eyesight, the darkness at the scene, her financial interest in wrongful-death litigation, and prior theft convictions. He also argued that other witnesses’ testimony actually supported his version of events.

The Superior Court found no abuse of discretion. The trial court had carefully considered these arguments and concluded that the jury was entitled to assess the credibility of the witnesses and choose whom to believe. The Court noted that DNA evidence, including the victim’s blood on the driver’s seat and door panel of the SUV, corroborated the mother’s account of the assault. The jury also viewed dash-camera footage of the fatal collision. The trial court’s determination that the verdict did not shock its sense of justice was well within its discretion.

The Takeaway

This is a significant case on the issue of legal causation in Pennsylvania homicide law. It reinforces the principle that when a defendant’s reckless conduct puts a victim in a dangerous situation, the defendant can be held criminally responsible for the victim's death even if the fatal injury was inflicted by a third party or resulted from the victim’s own attempt to escape. As long as the defendant’s conduct started the chain of events that led to the death, and the victim’s response was a foreseeable reaction to the danger the defendant created, the causal connection is established.

For defendants, this case is a reminder that causation in Pennsylvania criminal law extends beyond the immediate, direct infliction of harm. Prosecutors do not need to prove that a defendant personally delivered the fatal blow, only that the defendant’s reckless actions were a direct and substantial factor leading to the victim's death. The problem for the defendant here is that the death was almost immediate. had the defendant driven away and the victim been struck a few miles down the road while walking towards a rest stop, the result may have been different.

Facing Criminal Charges or Appealing a Criminal Case? We Can Help.

Goldstein Mehta LLC Criminal Defense Attorneys

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, Fraud, and Murder. we have also successfully challenged convictions for murder, firearms charges, rape, and other serious convictions on direct appeal in state and federal court as well as through post-conviction relief act litigation. 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 2/12/26 Zak Goldstein 2/12/26

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

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.