Jury Acquits Attorney Goldstein’s Client of Third-Degree Murder in One-Punch Homicide Case

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently obtained a not guilty verdict on the charge of third-degree murder in Commonwealth v. K.F., a homicide trial in the Philadelphia Court of Common Pleas. The case arose from a widely publicized 2022 incident in which a single punch thrown outside a Center City bar caused the death of a patron who had earlier been removed from the bar. The jury found K.F. not guilty of third-degree murder, a felony of the first degree that carries a maximum sentence of 40 years’ incarceration. The jury instead convicted K.F. only of involuntary manslaughter, a misdemeanor of the first degree with a maximum sentence of five years.

This case was a tragedy for everyone involved. A 41-year-old man lost his life, and K.F. has expressed nothing but remorse for the punch that caused his death. No verdict could change that loss. But the legal question for the jury was narrow: had the Commonwealth proven beyond a reasonable doubt that K.F. acted with malice, the element that separates murder from manslaughter under Pennsylvania law? After four years of litigation, including the pre-trial dismissal of the murder charge and a Commonwealth appeal that reinstated it, the jury concluded that the answer was no.

Background

The evidence showed that in the early morning hours of April 16, 2022, K.F. was working as a security guard at a bar in Center City Philadelphia. He was not employed by the bar itself; he worked for a private security company that the bar had retained to provide security staff. That night, bar staff decided to remove a patron who had become severely intoxicated. Security guards escorted the patron outside, and he remained in the area, eventually dancing in the street in front of the bar. Another guard tried to move him out of the roadway. K.F. then walked up to the patron and punched him once in the face. The man fell, struck his head on the street, and lost consciousness. He was taken to a nearby hospital, where he died days later. The medical examiner attributed the death to complications of blunt impact injuries to the head and ruled the death a homicide.

K.F. remained at the scene. He was charged with homicide later that month and turned himself in to the police. Following a preliminary hearing in July 2022, the Philadelphia Municipal Court held him for court on a charge of third-degree murder.

The Motion to Quash

The defense moved to quash the return of transcript. A motion to quash, which is the Philadelphia term for a pre-trial petition for a writ of habeas corpus, asks the Court of Common Pleas to dismiss a charge on the ground that the Commonwealth failed to present a prima facie case at the preliminary hearing. The motion argued that the evidence could not support a charge of third-degree murder because the Commonwealth could not establish malice.

Malice requires more than carelessness or even ordinary recklessness. It exists only where the defendant acted with the intent to cause serious bodily injury or with “a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). Involuntary manslaughter, by contrast, requires only that the defendant caused a death as the direct result of doing an act in a reckless or grossly negligent manner.

Pennsylvania courts have long recognized that a death caused by bare fists usually does not amount to murder. In Commonwealth v. Dorazio, 74 A.2d 125, 129 (Pa. 1950), the Pennsylvania Supreme Court explained that “[o]rdinarily where an assault is made with bare fists only, without a deadly weapon, and death results there would only be manslaughter.” Whether a bare-fisted assault establishes malice depends on the circumstances, including the size of the assailant, the manner in which the fists are used, the ferocity and duration of the attack, and the provocation. Id. at 130. In Commonwealth v. Thomas, 594 A.2d 300 (Pa. 1991), a single unexpected punch that knocked the decedent down and caused him to strike his head on the pavement was held insufficient to establish malice where the two men were roughly equal in size and had been drinking together.

The trial court agreed with the defense and dismissed the third-degree murder charge in December 2022, concluding that a single punch, thrown without a weapon and without more, did not establish the malice required for murder.

The Commonwealth’s Appeal

The Commonwealth appealed, and in July 2024, the Pennsylvania Superior Court reversed in a published opinion and reinstated the murder charge. The Superior Court held that there is no per se rule that a single punch can never establish malice. The question instead depends on the particular circumstances of each case. Viewing the preliminary hearing evidence in the light most favorable to the Commonwealth, as courts must at that stage, the Superior Court concluded that the Commonwealth had presented a prima facie case of malice based on the size disparity between K.F. and the decedent, the lack of provocation, and K.F.’s awareness of the decedent’s intoxication.

That ruling resolved only the question of whether the Commonwealth could take the murder charge to a jury. The prima facie standard is a low one. The Commonwealth need only produce some evidence of each element of the offense, and at that stage, the court may not weigh the evidence or assess the credibility of the witnesses. Proving malice to a unanimous jury beyond a reasonable doubt is a far more demanding task.

The Trial

The case went to trial before a jury in June 2026, more than four years after the incident. The defense did not dispute the basic facts. The punch was captured on surveillance video, and there was no question that it led to the decedent’s death. The dispute was over the degree of the homicide: whether a single punch thrown by a security guard who was dealing with an intoxicated patron reflected the conscious disregard of an extremely high risk of death or serious bodily injury that the law requires for murder, or instead the recklessness or gross negligence that makes an unintentional killing involuntary manslaughter.

The jury deliberated for a morning before returning its verdict. It found K.F. not guilty of third-degree murder and guilty only of involuntary manslaughter. Instead of a first-degree felony conviction carrying up to 40 years in prison, K.F. now awaits sentencing on a first-degree misdemeanor carrying no more than five years. Sentencing is scheduled for July 31, 2026.

Why This Result Matters

One-punch homicide cases are difficult. The harm is catastrophic and irreversible, but the conduct often involves a momentary decision rather than the cruelty, hardness of heart, or conscious disregard for human life that the law requires for a murder conviction. Pennsylvania law accounts for that difference through the degrees of criminal homicide, and the jury’s verdict in this case reflected those distinctions.

The case also illustrates how much the standard of proof matters. The Superior Court’s decision reinstating the charge meant only that the Commonwealth had produced enough evidence, viewed in the light most favorable to it, to put the question of malice to a jury. At trial, where the Commonwealth had to prove every element beyond a reasonable doubt, the jury rejected the murder charge. A defendant who loses a pre-trial motion or an appeal under the prima facie standard still has the right to hold the Commonwealth to its full burden at trial.

Finally, the result reflects the value of litigating a serious case at every stage. The motion to quash, the appeal, and the trial all turned on the same question: whether one punch, under these circumstances, amounted to malice. The defense pressed that question for four years, and the jury ultimately answered it in the negative, acquitting Attorney Goldstein’s client of murder.

Facing Criminal Charges in Pennsylvania?

Criminal Defense Attorney Zak T. Goldstein, Esquire

If you or a loved one is 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 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 more than a decade in prison for a crime he did not commit. 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.

Third Circuit: COVID-Era Courtroom Closure and Marshals Blocking the Defendants’ Mothers’ Entry Violated the Sixth Amendment, but Convictions Affirmed Anyway

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided United States v. Girard and United States v. Harry, Nos. 24-2097 & 24-2148 (3d Cir. May 26, 2026), holding that the District Court violated the defendants’ Sixth Amendment right to a public trial twice during a federal racketeering trial in the U.S. Virgin Islands. On the first day of trial, the court required every spectator to watch from an overflow room rather than in the courtroom. On several later days, federal marshals stationed at the courtroom door kept the defendants’ mothers from coming in, even though there were seats available.

Despite finding two constitutional violations, the Court affirmed the convictions. The defendants had not thoroughly objected at the time (although their lawyers repeatedly expressed concerns), so the Court reviewed the issue for plain error. Under that more demanding standard, the Court concluded that a retrial was not warranted because the trial as a whole still had what it called the “publicity, neutrality, and professionalism” the Sixth Amendment is meant to protect.

The Facts

The defendant was the head of a violent drug-trafficking enterprise in the U.S. Virgin Islands. The co-defendant served as the enterprise’s armorer. A jury convicted the defendant of 22 counts of drug, firearm, racketeering, and other charges, and convicted the co-defendant of seven counts of racketeering and firearms charges.

The trial took place in March 2022, the day after the Chief Judge of the District Court of the Virgin Islands issued an order incrementally reinstating in-person proceedings that had been suspended during the COVID-19 pandemic. Because of ongoing concerns about the virus, the District Court restricted who could be inside the courtroom. The jury sat in the jury box, and the court set up an overflow room with an audiovisual feed for anyone who could not watch from inside the courtroom.

After the jury was selected, but before opening arguments, the defendant’s lawyer asked what arrangements had been made for the public, and asked that at least the defendant’s family be allowed in “to comply with the Constitution.” The trial judge initially refused, then agreed to allow some spectators in beginning the next day. For all of day one, however, every spectator, including the defendants’ mothers, was directed to the overflow room.

Things did not improve on the days that followed. The co-defendant’s lawyer reported the next morning that the co-defendant’s mother was still not in the courtroom. Several days later, defense counsel pointed to a newspaper article reporting that the overflow room had not opened until around 10:00 a.m. on one of the trial days. The judge called that an “inadvertent error.” A day after that, the co-defendant’s lawyer told the judge that federal marshals had again prevented the co-defendant’s mother from entering the courtroom that morning, and the judge said he would “deal with that.”

After the verdicts, both defendants moved for a new trial. The District Court held an evidentiary hearing and credited the testimony of the defendant’s mother, who said that for most of the trial, federal marshals had told her and the co-defendant’s mother to watch from the overflow room without ever explaining why. The District Court nevertheless denied the motions, finding that seats had been available in the courtroom on a first-come basis and that any technical problems with the audiovisual feed had been brief.

The Sixth Amendment Right to a Public Trial

The Sixth Amendment guarantees criminal defendants the right to a public trial. The Supreme Court has long recognized that this right is rooted in centuries of Anglo-American practice and that trials are presumptively “open to all who care to observe.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564 (1980) (plurality opinion). The right is not absolute, but courts can only close the courtroom in rare circumstances. Under Waller v. Georgia, 467 U.S. 39 (1984), a trial court has to identify an overriding interest that justifies closure, consider less restrictive alternatives, and make a record explaining its decision.

Excluding specific spectators, rather than closing the courtroom entirely, requires a less demanding showing, what the Third Circuit described as a “substantial reason.” But the trial court still has to consider alternatives and put its reasoning on the record. That requirement traces back to two older Third Circuit cases, U.S. ex rel. Laws v. Yeager, 448 F.2d 74 (3d Cir. 1971), and United States v. Kobli, 172 F.2d 919 (3d Cir. 1949).

The Court Finds Two Sixth Amendment Violations

Applying that framework, the Third Circuit identified two violations.

The first was the day-one closure of the courtroom. By directing every interested spectator to the overflow room, the District Court had effectively closed the courtroom, and it never explained why a less restrictive option, such as letting in a smaller, socially distanced audience, would not work. The Government argued that the closure was “trivial” because spectators could still watch through the audiovisual feed. The Third Circuit disagreed. One of the purposes of the public trial right is to keep judges, jurors, and lawyers conscious of the seriousness of what they are doing, and the physical presence of spectators serves that purpose more meaningfully than remote viewing. The closure also covered opening arguments and the start of evidence, which the Court considered substantial.

The Court did agree that protecting trial participants from COVID-19 can qualify as an overriding interest that justifies some courtroom restrictions, joining the Second, Ninth, and Tenth Circuits on that point. But because the trial court allowed in-person spectators with social distancing on every later day, the record gave no reason why day one had to be different.

The second violation came after the District Court reopened the courtroom. The Third Circuit found that, despite the formal reopening, federal marshals continued to turn away the defendants’ mothers for several days, even when seats were available. The Court rejected the District Court’s finding that seats had been available on a first-come basis as inconsistent with its own credibility determination favoring the defendant’s mother. And it held that the trial judge’s lack of personal awareness of the marshals’ exclusions did not cure the problem. Joining the First, Second, and Seventh Circuits, the Third Circuit held that exclusions by courtroom staff can violate the public trial right even when the judge does not know about them.

Why the Convictions Were Affirmed

The convictions still stood. Neither defendant had made a clear, contemporaneous objection to the closures, which meant the Court could only reverse on plain error. Under United States v. Olano, 507 U.S. 725, 732 (1993), a defendant who fails to object must show that there was an error, that the error was plain, that it affected substantial rights, and that it seriously affected the fairness, integrity, or public reputation of the proceedings.

The Court held that the first three requirements were either satisfied or could be assumed, but it declined to find that the errors affected the integrity of the proceedings. Drawing on its 2020 decision in United States v. Williams, 974 F.3d 320 (3d Cir. 2020), the Court explained that the trial as a whole retained the “publicity, neutrality, and professionalism” the public trial right protects. The public could observe the trial at all times, either inside the courtroom or through the audiovisual feed. The day-one closure was a good faith COVID measure rather than an attempt at secrecy. The trial judge fixed the marshals’ misconduct as soon as he learned about it. And the trial itself had run for three weeks, involved nearly 50 witnesses, and concluded more than four years before the appeal was decided. A retrial under those circumstances, the Court said, would be a “windfall inimical to the interests of justice.”

The Court also rejected the co-defendant’s separate due process and compulsory process claims. There was no evidence in the record of any off-the-record meeting between the trial judge and Harry’s codefendant witnesses, who had invoked the Fifth Amendment through their own counsel. The Court declined to require question-by-question invocation of the privilege where Harry had never disputed the witnesses’ entitlement to invoke it.

The Takeaway

Although the convictions were affirmed, Girard is an important decision on the public trial right. It confirms that even in the middle of a public health emergency, a federal trial court cannot simply close the courtroom without first considering less drastic ways to protect everyone. A blanket order sending every spectator to an overflow room, with no explanation of why a socially distanced audience would not work, is not enough.

It also makes clear that the Sixth Amendment reaches into how courtrooms are actually staffed. When a marshal or other court officer turns a family member away at the door, that exclusion counts, even if the trial judge has no idea it is happening. The Third Circuit has now joined the majority of circuits that treat those exclusions as part of the public trial inquiry.

At the same time, Girard is another illustration of how difficult it is to win on appeal when an objection was not made at trial. Even where the Court of Appeals agrees that a constitutional violation occurred, plain error review allows it to leave the conviction in place if the trial as a whole appears fair. That is one of the reasons that having an experienced criminal trial lawyer in the courtroom matters so much. Issues that are not raised at the right moment can be very hard to fix later.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense

If you or a loved one are facing criminal charges, serving a state or federal sentence, or considering a direct appeal, post-conviction petition, or federal habeas petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have 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 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.

PA Superior Court: Intent to Violate a PFA Order Can Support a Burglary Conviction

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bryant, holding that a defendant who enters a residence in violation of a Protection from Abuse order may be convicted of burglary, even when the only criminal intent the Commonwealth proved was the intent to violate the PFA itself. The Superior Court affirmed an aggregate sentence of five and one-half to eleven years’ incarceration. The case is a good example of how a PFA violation, which people often think of as a civil or contempt issue, can quickly become a felony burglary case with significant state prison exposure.

Commonwealth v. Bryant

In the early hours of October 16, 2021, Philadelphia police responded to a 911 call about someone breaking into an upstairs apartment. The resident told the officer that her child’s father, the defendant, had an active PFA order against him and had somehow gotten into the apartment while she was sleeping. The PFA order excluded the defendant from her apartment and prohibited him from contacting her by phone or any other means. The officer could not find the defendant or any signs of forced entry, took her to the station to file a report, and brought her home.

About three hours later, officers received another call about a break-in at the same apartment. This time they caught the defendant coming down the steps from the apartment and arrested him. The next evening, officers responded to a third call. The complainant told them that the defendant was hiding in her daughter’s bedroom closet. The officers ordered him to come out, got no response, opened the closet, and found him there partially unclothed.

The contact did not stop after his arrest. From jail, the defendant continued to reach the complainant through harassing phone calls placed by other people, through letters, and through text messages, photos, and a video sent from a cell phone he managed to obtain while incarcerated. He offered her money to “get the charges dropped” and at other points threatened her. The Commonwealth filed an additional set of charges based on those contacts.

After a consolidated jury trial, the defendant was convicted of burglary and contempt of a PFA order at one docket, and stalking and contempt of a PFA order at the other. The trial court imposed an aggregate sentence of five and one-half to eleven years in prison. The defendant filed a post-sentence motion, which was denied, and then appealed.

The Burglary Statute and the Intent Issue

A person commits burglary in Pennsylvania if, with the intent to commit a crime inside, he enters a building or occupied structure that is adapted for overnight accommodation at a time when someone is present. The intent element is what distinguishes burglary from criminal trespass.

On appeal, the defendant raised a single issue: he argued that the evidence was insufficient to convict him of burglary because the only intent the Commonwealth proved was the intent to violate the PFA order, and contempt of a PFA, in his view, is not a “crime” within the meaning of the Crimes Code. He pointed out that contempt under the PFA Act sits in Title 23 (Domestic Relations), does not carry a gradation like felony, misdemeanor, or summary offense, and is not even listed in the Pennsylvania Sentencing Guidelines. He also argued that the PFA Act is essentially civil in nature and that a violation of a civil order should not be enough to turn an unauthorized entry into a felony burglary.

The Superior Court’s Decision

The Superior Court rejected the argument and affirmed. The Court applied the Pennsylvania Supreme Court’s decision in Commonwealth v. Majeed, 694 A.2d 336 (Pa. 1997), which is the controlling case on this issue. In Majeed, the defendant broke into his own marital home in violation of a PFA order that excluded him, sexually assaulted his stepdaughter, and then engaged in an armed standoff with police. The Supreme Court held that he could be convicted of burglary even though he owned the home, and that the intent to violate a PFA order is enough to satisfy the intent element of the burglary statute.

The Majeed Court explained:

The purpose of the [PFA] Act is to prevent domestic violence and, concomitantly, to promote the security of the home. … If the only sanction for [a person’s] unlawful entry were an indirect criminal contempt [charge for violating the terms of a PFA], the purpose underlying the [PFA] Act would be frustrated. Instead, application of the law of burglary (and the consequential restraint of liberty), under these circumstances, advances the purpose of the [PFA] Act by discouraging domestic violence and unauthorized invasions of the home.

The Court added that a violation of a PFA “is a violation of the law, a public wrong, punishable by a fine, imprisonment, or both,” and that nothing prevents the Commonwealth from using that violation to satisfy the intent element of burglary. The Superior Court in Bryant treated that holding as binding and applied it directly. Because the defendant knew about the PFA, knew he was not allowed in the apartment or in contact with the complainant, and broke in anyway, the evidence was sufficient to support the burglary conviction.

The Court also pointed out that even if Majeed did not control, the Commonwealth is not required to prove the specific crime a defendant intended to commit once inside. A jury can infer criminal intent from the totality of the circumstances. Here, the defendant broke in repeatedly across two days, including in the middle of the night while the complainant was asleep, and was eventually found hiding in a child’s closet. The Court agreed with the trial court that this conduct supported an inference that he intended to harass and stalk the complainant, which is independently enough to support the burglary charge.

The Takeaway

This case does not change the law, but it is a useful reminder that a PFA case can turn into something much more serious very quickly. Many people view a PFA as just a piece of paper or a civil order. In reality, walking back into a home in violation of a PFA can support a felony burglary charge, and the resulting sentence can be measured in years rather than months. The defendant in this case is serving five and one-half to eleven years.

The case also illustrates how communications from jail can create entirely new and more serious problems. Letters, calls placed through other people, and messages sent from a contraband cell phone were all used here to support additional charges of stalking, contempt, and witness intimidation. Anyone with a no-contact order or an active PFA should assume that every form of contact, including indirect contact through friends or family, can and will be collected by the police and used by the prosecution.

Finally, the case is a reminder that sufficiency challenges in PFA-burglary cases are difficult to win on appeal. Because Majeed already allows the intent to violate a PFA to satisfy the burglary statute, and because a jury can also infer criminal intent from the surrounding circumstances, the real defense work in these cases generally has to happen earlier in the process. That can include challenging identification, contesting how the alleged entry occurred, litigating the validity and scope of the underlying PFA order, and moving to suppress statements or evidence where appropriate.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense

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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and 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.

PA Supreme Court: ShotSpotter Alert Plus Furtive Movements and Walking Away Provides Reasonable Suspicion

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided Commonwealth v. Foster, No. 12 WAP 2024 (Pa. May 19, 2026), holding that the totality of the circumstances supported reasonable suspicion to detain the defendant after a ShotSpotter alert reported gunfire on a residential block at 2:00 a.m. The Court declined to address whether ShotSpotter alerts, standing alone, are reliable enough to support a Terry stop, treating the alert here as one factor among several.

There is also a meaningful win for the defense bar tucked inside the opinion. The Court refused to credit the Commonwealth’s “high-crime area” argument because the officer’s testimony was too vague and was not tied to the time of the stop. That portion of the decision reinforces last year’s ruling in Commonwealth v. Lewis, 343 A.3d 1016 (Pa. 2025), and gives defense counsel a usable tool at suppression hearings.

The Facts

At around 2:00 a.m. on September 17, 2019, a Pittsburgh police officer received a ShotSpotter alert reporting a single gunshot near 1439 Hoffman Street. A second alert reported four more shots at the same location while the officer was en route. He reached the intersection of Hoffman and Chateau Streets about ten to fifteen seconds after the second alert and saw a parked car with its headlights on. The defendant was in the driver’s seat. A woman was in the passenger seat. They were the only people on the street.

As the officer turned onto Hoffman Street and activated his overhead lights, the defendant got out of the car and walked toward a nearby residence. The officer testified that the female appeared to be “moving around in the car trying to grab things,” including her purse. The officer exited his cruiser and ordered the defendant to return to the street. When he did not comply, officers drew their weapons and forcibly handcuffed him.

After the seizure, officers recovered shell casings near the car and a firearm in the woman’s purse. The woman later admitted she had accidentally discharged the weapon inside the vehicle. The defendant meanwhile, smelled of alcohol and his eyes were glassy. He failed field sobriety testing, and his BAC came back at .200. He was charged with DUI and with driving while his operating privilege was suspended.

The defendant filed a motion to suppress, arguing that the seizure was not supported by reasonable suspicion. The trial court denied the motion, the defendant was convicted at a bench trial, and the Superior Court affirmed in an unpublished memorandum. The Supreme Court granted allocatur to address whether the lower courts placed too much weight on the defendant’s spatial and temporal proximity to the ShotSpotter alerts.

The Legal Framework

Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment both prohibit unreasonable seizures. An investigative detention (a Terry stop) must be supported by reasonable suspicion of criminal activity. Reasonable suspicion is less demanding than probable cause but still requires “specific and articulable facts” supplying a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” The stop must be “justified at its inception,” and facts that develop only after the seizure cannot retroactively support it.

The parties agreed that the seizure occurred when the officer exited his cruiser and ordered the defendant back to the street. The question was whether the totality of the circumstances at that moment supplied reasonable suspicion.

The Supreme Court’s Holding

The Court held that the totality of the circumstances supported reasonable suspicion. It identified four factors: (1) two ShotSpotter alerts indicating gunfire in a residential neighborhood in the middle of the night; (2) the officer’s rapid response, which left limited opportunity for a shooter to flee the immediate area; (3) the fact that the defendant and the woman were the only people present at the precise location of the alerts; and (4) what the Court characterized as the pair’s “furtive and evasive behaviors” when the officer arrived — the woman moving around inside the car as the cruiser approached with overhead lights activated, and the defendant getting out of the car and walking toward a private residence as the officer pulled up.

The Court declined to treat ShotSpotter alerts as the equivalent of anonymous tips. The defendant and amici — the ACLU, the Pennsylvania Innocence Project and PACDL, and the Allegheny County Public Defender’s Office — had urged the Court to adopt that framework and require independent corroboration of the alert before it could be used to justify a stop. The Court called the proposed framework one that would “unnecessarily complicate[ ] the straightforward legal issue presented,” and resolved the case on a totality-of-the-circumstances basis instead. Importantly, the Court did not actually decide whether ShotSpotter is reliable. It described the technology’s reliability as not properly preserved and ultimately immaterial on the record before it.

The High-Crime Area Argument Fails

The most useful part of the opinion for defense practitioners is the Court’s rejection of the Commonwealth’s “high-crime area” argument. The entirety of the proof was an officer’s answer to a leading question: asked whether the area was “known as a high-crime area,” he replied, “Manchester has its hot spots, yes,” and confirmed that the location “has been” a hot spot “in the past.”

Citing Lewis, the Court reiterated that “merely intoning buzzwords is never sufficient to prove an area is high in crime,” and that conclusory testimony characterizing an area “in broad generalities” does not establish the factor. The Commonwealth must also tie the testimony to the time of the stop, not to some unspecified moment “in the past.” The Court accordingly removed the high-crime area factor from the analysis.

Although the use of ShotSpotter as a factor is bad for the defense, the high crime analysis is helpful. The high crime area label has been doing a lot of heavy lifting in Terry stop cases for years, often supported by nothing more than an officer reciting the magic words on direct. After Lewis and now Foster, that testimony has to come with specifics: what kind of crime, how the officer knows, and a nexus to the time and place of the stop, or it does not count at all.

The Takeaway

Foster expands the set of circumstances in which a ShotSpotter alert can be used to justify an investigative detention in Pennsylvania. The Court did not hold that a ShotSpotter alert alone supports reasonable suspicion, and it expressly declined to decide whether ShotSpotter alerts are reliable enough to be treated like other evidence of crime. But it did hold that an alert, combined with the defendant’s presence at the reported location moments after the alert, the absence of any other people on the scene, and what the Court characterized as furtive and evasive behavior, is enough.

At the same time, the decision continues the Court’s push, begun in Lewis, to require more than buzzwords before an area can be treated as a high-crime area in the reasonable-suspicion analysis. A one-line answer from an officer that the location has been a “hot spot” in the past is no longer sufficient on its own.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have 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 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.