PA Superior Court: Commonwealth May Amend Bills of Information to Include New Victim on Day of Trial Unless Defendant Shows Prejudice

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Jackson, holding that the trial court properly permitted the prosecution to amend the Bills of Information to include new victims on the morning of trial because the defendant was on notice of those victims and failed to show any prejudice due to the amendment.

The Facts of Jackson

In Jackson, the defendant was charged with Terroristic Threats (M1) in Philadelphia for allegedly threatening various co-workers at his federal job. The defendant had a number of telephone conversations and left a number of voice mails in which he used racial slurs, threatened co-workers, and said other generally distasteful and unsettling things. The majority of these phone calls, however, involved making these threats towards other co-workers to a specific co-worker with whom he was more friendly. He did not really, however, threaten the one co-worker to whom he made the majority of his comments.

Can the Commonwealth Amend the Bills of Information on the Day of Trial?

Prior to trial, the Commonwealth filed Bills of Information. The Bills of Information generally identify the charges which a defendant will face as well as the name of the victim, the date on which the crime allegedly occurred, and the gradation of the charges. The Commonwealth may later move to amend the Bills of Information, but if the Commonwealth has failed to prove the charges as identified in the Bills by the end of the trial, then the court should find insufficient evidence to convict a defendant. In this case, the original Bills of Information listed only the co-worker who he did not really threaten as the victim. Instead, the defendant had made a number of threatening remarks about other co-workers to that co-worker. Realizing this error, the Commonwealth moved to amend the Bills of Information on the day of the bench trial.

The defense attorney objected to the Commonwealth’s motion to amend the Bills, but the trial court permitted the amendment. The defendant then proceeded by way of bench trial and was found guilty of one count of Terroristic Threats. He was subsequently sentenced to three years of reporting probation, and he appealed to the Pennsylvania Superior Court. 

The Superior Court Appeal

On appeal, the Superior Court affirmed the conviction. The defendant raised the issue of whether the trial court improperly permitted the Commonwealth to amend the Bills of Information on the day of trial, but the Superior Court rejected this argument.

First, the Court reasoned that the majority of the defendant’s argument had been waived by the defendant’s failure to make specific objections on the day of trial and by the defense attorney’s sloppy drafting of the Statement of Errors. Further, the Court concluded that even if the arguments were not waived, they should be rejected.

The Court reasoned that under Pa.R.Crim.P. 564:

The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

The purpose of the rule is to make sure that the defendant knows what he is charged with and does not have to devise a new defense on the day of trial. In deciding whether to grant an amendment, a court should consider the following factors as to whether the defendant was prejudiced:

1. Whether the amendment changes the factual scenario,

2. Whether new facts, previously unknown to the defendant were added,

3. Whether the description of the charges changed,

4. Whether the amendment necessitated a change in defense strategy,

5. And whether the timing of the request for the amendment allowed for ample notice and preparation by the defendant.

Here, the Court court concluded that the defendant failed to show any prejudice which would have justified denying the motion to amend the Bills of Information. The alleged victims were clearly identified at the preliminary hearing and in the pre-trial discovery provided by the Commonwealth, and the complaint also put the defendant on notice of the threats with which he was charged. Therefore, amending the bills to add the additional co-workers did not prejudice the defendant as he already knew what he was charged with doing. The Court denied the appeal, and it found sufficient evidence to uphold the defendant’s conviction for Terroristic Threats.

 Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers

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 Superior Court: Failure to Properly Investigate Alibi and File Accurate Alibi Notice May Be Ineffective Assistance of Counsel

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Shaw, holding that a defendant may be entitled to a new trial where the defense attorney provided the ineffective assistance of counsel by failing to properly investigate an alibi defense and by filing an erroneous notice of alibi which was later used to impeach the defendant’s testimony. This case is important because it emphasizes the defense attorney’s both to fully investigate potential alibi defenses and to take care to file an accurate notice of alibi where one is appropriate. It also allows for a defendant to be impeached through the use of the notice of alibi, which was filed by the defendant’s lawyer, in addition to any statements made by a defendant.

Commonwealth v. Shaw 

In Shaw, the prosecution alleged the following: on November 30, 2009, the complainant saw the defendant and his accomplice hanging around his apartment building. The complainant spoke with them. When the conversation concluded, the complainant went into his apartment where he was entertaining guests. The defendant and his accomplice came to the door and asked the complainant if he had change for a $100 bill. The complainant accommodated them and then returned to his guests, but he heard another knock a short time later. Assuming it was a food delivery, the complainant opened the door. However, it was the defendant and his accomplice and they forced their way into the complainant’s home. After they entered, they demanded money from the complainant. They then assaulted him and shot him in the chest and the thigh. The complainant’s guests, who were hiding in the bathroom, called 911.

Police and paramedics arrived a short time later. The complainant was taken to the hospital where he was treated for his injuries. While en route to the hospital, the complainant stated that one of the assailants was a small, dark-skinned, black man wearing a grey hoodie. He could not give a description of the other individual. 

After he recovered from his injuries, the police showed the complainant a photo array, and he identified the defendant and his accomplice. The complainant stated that the medication he was on in the hospital did not hamper his ability to make an identification and that he was positive the defendant was the one who shot him. The police were also able to locate multiple witnesses to this incident, including a neighbor who would later testify that he saw the defendant and his accomplice in the area earlier in the day. A female guest ultimately testified that she saw the defendant punch the victim.

Police arrested the defendant charged him with attempted murder, robbery, various charges under the Uniform Firearm Act, burglary, possession of an instrument of a crime, aggravated assault, and criminal conspiracy. Prior to his trial, his attorney did not file a motion to suppress the victim’s identification of him. However, his attorney did file an alibi notice. Specifically, the notice of alibi alleged that the defendant was with his girlfriend and another woman in Philadelphia on the day this robbery occurred. However, the defendant’s attorney only spoke to the girlfriend and only called her to testify at his trial. He never spoke with the other woman or called her as a witness. The Commonwealth then used the defendant’s alibi notice to impeach the witness during cross-examination. Based on the notice of alibi, the assistant district attorney asked why the defendant said he was with two women when his girlfriend did not testify to that. 

After a jury trial, the defendant was found guilty of all charges and received a 15-30 years sentence. The defendant then filed a timely appeal which was denied and a timely PCRA petition. In his PCRA petition, the defendant raised several arguments as to why his trial attorney was ineffective in representing him. Specifically, the defendant argued that his attorney was ineffective because he did not try to suppress the complainant’s identification of him, he did not request a Kloiber charge, and that he failed to amend his alibi notice prior to trial. He also alleged that the attorney who handled his PCRA claim was ineffective for not raising the issue on appeal. The PCRA court denied his petition, and then the defendant filed this timely appeal.

Can You Suppress a Witness’s Identification? 

Sometimes. A defense attorney may file a motion to suppress a witness’s identification if it was unduly suggestive. In other words, if a police officer’s actions during the identification are so egregious that it gives rise to a irreparably tainted misidentification, then a court may prevent that witness from making an in-court identification of the defendant or allowing the Commonwealth to present that pre-trial identification in its case-in-chief. 

For example, assume that a woman was robbed and an eyewitness saw the robbery. The police ask him for a description of the assailant and he describes the person as a 5’10, Hispanic male with a beard. The next day, the police provide a photo array and ask the witness if they see anyone they recognize in the photo array. The photo array has six pictures. Five of them are white men with no facial hair, and there is one picture of a Hispanic male with a beard. The eyewitness then identifies this Hispanic male as the person who committed the robbery. Assuming this man went to trial, he could have a strong argument for suppressing the eyewitness’s identification because the photo array was unduly suggestive. There was only one photo of a person who matched the description he gave to the police. The other five pictures were not even close to resembling the perpetrator of the robbery. Thus, it would be clear that the police were trying to make the eyewitness pick the defendant, thereby tainting the identification.

What is a Kloiber Charge? 

A Kloiber charge is a jury instruction that is given when the witness did not have the opportunity to clearly view the defendant, equivocated in his identification of the defendant, or had difficulty in making an identification in the past. In the instant case, the defendant argued that because of the complainant’s discrepancies in his initial claim, a Kloiber charge was warranted. The Superior Court rejected this claim. However, a Kloiber charge can be very helpful because it instructs the jury to give less weight to a questionable identification where appropriate.

Can the prosecutor impeach the defendant with the notice of alibi?

Yes. As shown in the instant case, a defendant may be impeached with his or her alibi notice. It was also of no consequence that the defendant did not testify. In other words, the Commonwealth can use the defendant’s alibi notice to impeach the alibi witness that the defense calls. However, and this is very important, if a defendant decides to withdraw his alibi notice prior to trial, the defective notice cannot be used against him or her. The Commonwealth also may not use a withdrawn notice of alibi as evidence of a defendant’s lack of truthfulness at sentencing. Therefore, it is extremely important that a defense attorney thoroughly investigate an alibi and only file a notice of alibi where the defense has merit and the notice will be accurate. If further investigation reveals defects in the notice of alibi, then it should be withdrawn prior to trial.

The Superior Court’s Decision 

The Superior Court held that the defendant’s trial attorney was not ineffective for failing to try to suppress the complainant’s out-of-court identification of him or for not requesting a Kloiber charge. The Court, however, also found that the defense attorney was ineffective for failing to amend the alibi notice to accurately reflect the witnesses he intended to call at trial. As the Superior Court stated, it is common knowledge that the Commonwealth can impeach a witness and use the defendant’s alibi notice against him or her if it is not accurate. In the defendant’s case, the trial attorney should have known this because he should have spoken with his witness and realized that the other witness was unlikely to appear for court, and he should have amended his alibi notice to reflect the witnesses he intended to call and what they would actually say. The attorney should have removed the name of the one witness he did not intend to call. If he had done this, the Commonwealth could not have impeached the witness with the erroneous alibi notice. The defense attorney, however, testified that he did not realize that the witness could be impeached with the alibi notice. Therefore, the Superior Court found that there was no reasonable strategy for failing to amend the notice.   

The Superior Court also found that the defendant was prejudiced by the attorney’s failure to amend the notice. Alhough the identifications of the defendant were not unconstitutional, they were not the most reliable. Additionally, there was no physical evidence that tended to corroborate these identifications. Consequently, because of this failure by his attorney to amend his alibi notice, the defendant will get a new trial. 

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

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 Superior Court: Police Need Search Warrant to Collect Real Time Cell Site Location Data

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Pacheco, holding that the police are required to obtain a search warrant if they wish to collect an individual’s real-time cell site location information (hereinafter “CSLI”). This is a very significant decision because police are increasingly relying on suspects’ digital footprints when they are building and prosecuting cases in all types of crimes.

Commonwealth v. Pacheco 

In April 2015, the Montgomery County, PA District Attorney’s office and its Narcotics Enforcement Team uncovered a large alleged criminal conspiracy. The DA’s office learned that a Mexican drug trafficking organization was smuggling heroin into the United States and the defendant, a Norristown resident, was picking up the heroin in Atlanta, Georgia and then transporting it to wholesale buyers in New York City. 

On July 23, 2015, Montgomery County prosecutors applied for and obtained orders for a wiretap pursuant to Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (hereinafter “The Wiretap Act”) for the defendant’s cell phone. One month later, on August 28, 2015, Montgomery County prosecutors sought and obtained additional orders under the Wiretap Act to obtain information relating to the defendant’s cell phone number and the numbers for other cell phones believed to be used by him. Pursuant to these orders, prosecutors obtained call detail records for the past thirty days. Additionally, the orders allowed prosecutors to obtain mobile communication tracking information, install and use pen registers, trap and trace devices, and telecommunications identification interception devices for sixty days. On October 15, 2015, the court issued an order extending the surveillance of the defendant’s phone for an additional sixty days. 

On December 11, 2015 and January 6, 2016, the Montgomery County DA’s office sought and obtained orders from the Pennsylvania Superior Court to allow them to intercept oral, electronic, and wire communications for the cell phone registered to the defendant, as well as three others believed to be used by him. The detectives also obtained real-time cell site location information (“CSLI”), but did not get a search warrant for this information. Based on the results of these orders, prosecutors and detectives analyzed the information and identified multiple occasions between September 2015 and January 2016 when the defendant traveled to Atlanta and New York as a member of the drug trafficking organization. 

On each trip, the defendant obtained a car battery containing three kilograms of heroin in Atlanta, returned briefly to Norristown, and then transported the heroin to New York. The defendant would use his cell phone to facilitate these transactions. Based on their investigation, the detectives also learned that on January 10, 2015, the defendant planned to drive from Georgia back through Norristown with a retrofitted car battery containing three kilograms of heroin. Police assembled a surveillance team along the defendant’s anticipated route and apprehended him in Montgomery County. A search of his vehicle revealed three kilograms of heroin hidden in the car’s battery. 

The defendant was subsequently arrested and charged with nine counts of Possession with the Intent to Deliver (“PWID”)., two counts of dealing in unlawful proceeds, and one count of conspiracy to commit PWID and corrupt organizations. The defendant then moved to suppress the call detail records and the evidence that was collected through the telecommunications interception devices. Following a suppression hearing and supplemental briefing, the trial court denied his suppression. 

The case then proceeded to a jury trial that began on August 7, 2017. The defendant stipulated that he transported three kilograms of heroin on seven of the nine trips detected by law enforcement. He also admitted that he “did the things that police say [he] did.” However, the defendant raised the defense of duress by claiming that he was coerced by Mexican drug cartels to act as a drug courier and if he did not comply, the cartels threatened that they would kill his family members. At the conclusion of the trial, the jury convicted the defendant of all charges except corrupt organizations. On November 29, 2017, the trial court sentenced him to forty to eighty years, followed by ten years of probation. The defendant then filed post-sentence motions which were denied. He then filed a timely appeal to the Pennsylvania Superior Court.

What is CSLI? 

In Carpenter v. United States, the United States Supreme Court explained CSLI as follows:

There are 396 million cell phone service accounts in the United States…Cell phones perform their wide and growing variety of functions by connecting to a set of radio antennas called “cell sites.” Although cell sites are usually mounted on a tower, they can also be found on light posts, flagpoles, church steeples, or the sides of buildings. Cell sites typically have several directional antennas that divide the covered area into sectors. 

Cell phones continuously scan their environment looking for the best signal, which generally comes from the closet cell site. Most modern devise, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carries have install more cell sites to handle the traffic….[a]accordingly, modern cell phones generate increasingly vast amounts of increasingly precise CSLI. 

Do the Police Need a Search Warrant to Collect CSLI? 

Yes. In Carpenter, the United States Supreme Court held that an individual maintains a legitimate expectation of privacy in the historical record of his physical movements as captured through CSLI. The Supreme Court stated that CSLI date contains the “privacies of life” because most people carry their cell phones everywhere they go. It was no consequence that this information is voluntarily provided to cell phone companies. However, Carpenter did not address the issue of “real time CSLI” which was the issue in the defendant’s case.   

The Superior Court’s Decision

The Pennsylvania Superior Court granted the defendant’s appeal. The Superior Court found that the detectives needed to obtain a search warrant before they collected the defendant’s real-time CSLI information. Although this was an issue of first impression in the Commonwealth, the Superior Court recognized that many other courts that have addressed this issue have determined that real-time CSLI is subject to the same privacy concerns as historical CSLI. Specifically, the court found that cell phone users have an expectation of privacy in their cell phone location in real time and that society is prepared to recognize that expectation as reasonable. Further, the Superior Court held that the Commonwealth did not comply with the Fourth Amendment when it obtained orders under the Wiretap Act because obtaining an order under the Wiretap Act does not require probable cause. Instead, these Wiretap Act orders are granted so long as the information likely to be obtained is “relevant to an ongoing criminal investigation being conducted by that agency.” Therefore, the Superior Court held that the real-time CSLI evidence seized from the cell phone was the product of a constitutionally defective warrantless search. Thus, the defendant’s sentence was vacated for further proceedings, which could include a new trial.

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 charges such as Conspiracy, Aggravated Assault, Rape, Possession with the Intent to Deliver, 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.

Not Guilty: Attorney Goldstein Wins Murder Trial

Philadelphia Criminal Defense Lawyer Zak Goldstein

Criminal defense lawyer Zak T. Goldstein, Esquire recently obtained a full acquittal from a Philadelphia jury in the case of Commonwealth v. K.E. for a client charged with Murder and Possession of an Instrument of Crime (“PIC”).

According to the police, K.E. and the decedent worked together at the airport. They became involved in a verbal argument after K.E. was part of a group of co-workers which broke up a physical fight between the decedent and another co-worker in the break room. Prosecutors claimed that the decedent pushed K.E., and K.E. then stabbed him one time in the leg, severing the femoral artery and quickly causing the decedent to bleed to death. The Commonwealth argued that K.E. did not act in self-defense and that he showed consciousness of guilt by allegedly fleeing the scene, hiding the knife, and telling the police that he had stabbed the decedent with keys after being punched. Police arrested K.E. a few minutes from the scene of the incident when K.E. walked over to a patrol officer and told the officer that he was the person they were looking for and that he had been punched and responded by stabbing the decedent with his keys. At that time, K.E. did not know that the decedent had died, and he later gave a statement to detectives in which he claimed self-defense but maintained that he had committed the stabbing with his keys. Three days later, however, an airport employee found a bloody knife near where the stabbing occurred, and police quickly concluded that that knife must have been used in the stabbing. Accordingly, they charged the defendant with Murder and PIC.

Fortunately, K.E. retained Philadelphia criminal defense attorney Zak Goldstein. At the time, the defendant had initially been held on $250,000 bail. However, Attorney Goldstein was quickly able to file a motion for release on house arrest pursuant to Pennsylvania’s Speedy Trial Rule (Rule 600B) and have the defendant released pending trial. This made it much easier to prepare for court and investigate the case.

K.E. decided to proceed by way of jury trial, meaning that a jury panel of twelve Philadelphians would be tasked with deciding whether K.E. committed the stabbing with malice or whether he had acted in self-defense. Because prosecutors charged K.E. with third-degree Murder, they would not have had to show that K.E. had intentionally killed the decedent in order to obtain a conviction. Instead, they needed to show only that K.E. had acted with malice – meaning he had acted recklessly and in conscious disregard of a substantial risk of death or serious bodily injury with an extreme indifference to the value of human life.

Through effective cross-examination of the Commonwealth’s witnesses, Attorney Goldstein was able to show that the defendant had not in any way meant to kill the decedent and had instead acted in self-defense. The evidence ultimately showed that although K.E. had a reputation for being a peaceful, non-violent person who had never been involved in any kind of violence before, the decedent had attempted to fight a supervisor shortly before the incident, had attacked a different co-worker just minutes before the incident, and had then attacked the defendant from behind by knocking him to the ground prior to the defendant stabbing him one time in the leg with a small knife in self-defense.

Attorney Goldstein also presented the testimony of the defendant. He testified that he had been part of breaking up the fight between the decedent and the other co-worker and that he had then been attacked from behind by surprise as he turned to walk away. After he was knocked to the ground, he felt that the decedent was going to continue assaulting him, and he quickly defended himself by stabbing him one time in the leg with a knife. He admitted to and apologized for not being totally honest with the police about the keys, but he adamantly refuted the Commonwealth’s allegations that he had acted out of malice, been the aggressor in the fight, and that he did not need to defend himself with deadly force. Ultimately, many of the witnesses agreed that the decedent had actually been the aggressor, and it was also an extremely unexpected result that the decedent would unfortunately die from one stab wound to the leg with a two inch knife. Attorney Goldstein was also able to get the Medical Examiner who conducted the autopsy to agree that based on the nature of the injury, the decedent could have been moving at the time that he was stabbed, suggesting that he may have been moving towards K.E. to continue assaulting him. Thus, Attorney Goldstein argued both that K.E. had acted in self-defense and that he had not acted with malice because one would not expect a person to die from a relatively small knife wound to the leg.

After deliberating for nearly eight hours, the Philadelphia jury of twelve citizens returned a verdict of Not Guilty to both charges. K.E. was acquitted of Murder and Possessing an Instrument of Crime. This verdict is an example of the law of self-defense in Pennsylvania. If a person is in genuine, reasonable fear of death or serious bodily injury, then they may defend themselves with deadly force. Even if that force results in death to another person, the person has not committed a crime because you have the right to defend yourself.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorney Zak Goldstein

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.