Pennsylvania Superior Court Rejects Challenge to Use of Preliminary Hearing Transcript and Related Exhibits Against Defendant at Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson. The Court affirmed the defendant’s conviction based on the use of the preliminary hearing testimony and accompanying exhibits against him at trial. The Court ruled the the use of the prior sworn testimony and related exhibits did not violate the rules of evidence or the defendant’s rights under the Confrontation Clause because the defendant had a full and fair opportunity to cross-examine the witness at the preliminary hearing.

Facts and Procedural History

The police alleged the defendant exited a green Pontiac and fired multiple shots, striking the target and an innocent bystander. The target’s pregnant girlfriend initially identified the defendant and the driver from photo arrays and gave a signed statement to police.

At the preliminary hearing, however, the girlfriend largely recanted. She admitted signing the statement and the photo arrays but testified that she had been hiding and did not actually see who fired the gun. Before trial, she became unavailable despite the Commonwealth’s efforts to find her. The Commonwealth sent police officers to try to find her and bring her to court, but they were unsuccessful, and she never appeared for trial. The trial court therefore permitted the Commonwealth to introduce her preliminary hearing testimony, her signed police statement, and the photo arrays despite the defendant’s hearsay and confrontation objections.

A jury convicted the defendant of two counts of attempted murder, two counts of aggravated assault, and multiple firearm offenses. The trial court sentenced him to an aggregate 25–50 years’ incarceration. He appealed.

The Issues on Appeal

Proceeding pro se, the defendant argued that the trial court erred in admitting the girlfriend’s signed police statement and her photo array identifications as substantive evidence at trial. He contended that their admission violated both Pennsylvania’s evidentiary rules against hearsay and his constitutional right to confront the witnesses against him.

The Pennsylvania Superior Court’s Decision

The Superior Court affirmed. The panel emphasized that:

• Pa.R.E. 803.1 permits admission of prior inconsistent statements if the declarant testified and was subject to cross-examination at the prior proceeding.

• Pa.R.E. 804(b)(1) allows former testimony to be admitted when the witness is unavailable, provided the opposing party had a similar motive and opportunity to cross-examine.

• The girlfriend testified at the preliminary hearing, was confronted with her prior statements by the defense attorney, and was subject to cross-examination. This satisfied both the Pennsylvania Rules of Evidence and the Confrontation Clause.

The Court relied heavily on Commonwealth v. Stays, where a similar recantation and later unavailability led to admission of prior statements. The Court also explained that even if admitting the girlfriend’s written police statement had been error, it was harmless, because her preliminary hearing testimony already included a verbatim reading of that statement.

The Takeaway

This case highlights the importance of preliminary hearing testimony in Pennsylvania criminal cases. Even when a witness recants at the hearing and later becomes unavailable, their prior identifications and statements may still be admitted at trial if the defense had an opportunity to cross-examine them. For defendants, this means a recantation does not necessarily prevent the jury from hearing the original identification.

Facing Criminal Charges or Appealing a Criminal Case?

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, 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 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.

Pennsylvania Supreme Court Rules Judge May Ask Every Juror During Voir Dire if They Can Convict on Victim’s Testimony Alone

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court recently addressed a major issue in jury selection in Commonwealth v. Walker: whether the trial judge or prosecutor may ask potential jurors during voir dire if they are willing to convict solely on the testimony of an alleged victim, provided they believe that testimony beyond a reasonable doubt. The Court upheld the trial court’s decision to allow this type of questioning and affirmed the defendant’s convictions.

While the Court’s ruling clarifies that such voir dire questions are permissible under Pennsylvania law, it also highlights the challenges defendants face in sex offense prosecutions, where corroborating evidence is often limited or nonexistent, but the prosecutors and even judges will repeatedly suggest to the jurors that they should not consider the absence of other evidence in deciding whether to convict even in cases where there should be other evidence.

Background of the Case

The case involved allegations by a young girl, M.W., that her mother’s boyfriend, the defendant, repeatedly sexually assaulted her beginning when she was ten years old. She later disclosed the abuse to family, a doctor, and eventually a teacher, which led to police involvement. She also tested positive for an STD.

The defendant was charged in 2019 with multiple sex offenses, including Rape of a Child, Statutory Sexual Assault, Sexual Assault, Indecent Assault of a Child, Endangering the Welfare of Children, and Corruption of Minors. After a jury convicted him of all charges, the trial judge sentenced him to more than thirty years in prison.

The Voir Dire Question

Before trial, prosecutors asked the court to allow the following voir dire question to prospective jurors:

Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?

The defense objected, arguing that the question improperly previewed the evidence, misstated the law, and risked biasing jurors in favor of the Commonwealth. The trial court allowed the question, and the issue became the centerpiece of the defendant’s appeal.

The Superior Court and Supreme Court Decisions

The Pennsylvania Superior Court affirmed the trial court, relying on 18 Pa.C.S. § 3106 and the Suggested Standard Criminal Jury Instruction, both of which make clear that a sexual assault complainant’s testimony does not need corroboration. The panel reasoned that the question was designed to screen out jurors who incorrectly believed DNA, physical evidence, or corroborating witnesses are always required.

The Pennsylvania Supreme Court agreed. Writing for the Court, Chief Justice Todd explained that voir dire is meant to ensure jurors can be impartial and willing to follow the trial judge’s instructions. The Court emphasized the distinction between improper hypotheticals that probe jurors’ reactions to facts at issue in the case and permissible questions that confirm whether jurors can follow established legal principles. Because the voir dire question tracked Pennsylvania law and the standard jury instruction, the Court upheld the conviction.

The Takeaway

For the defense, this ruling is concerning because it allows the Commonwealth to reinforce a principle of law during jury selection that can diminish the presumption of innocence in the eyes of prospective jurors. It underscores that in Pennsylvania sexual assault cases, a complainant’s testimony alone, if believed beyond a reasonable doubt, may be sufficient for conviction. Of course, asking each juror about whether they could follow that instruction is helpful to the Commonwealth because it lets the Commonwealth remove jurors who may want more evidence, and for even those who agree to follow the instruction, it encourages them to disregard the failure to present any incriminating evidence other than the complainant’s word that something happened. Further, it differentiates sexual assault cases from other types of cases even though the rule that a complainant’s testimony may be enough always applies in every single case.

At the same time, the decision is a reminder of how critical jury selection is in these cases. Defense counsel must be prepared to carefully question prospective jurors about their ability to truly apply the reasonable doubt standard and to challenge any who may give undue weight to a single piece of testimony without considering the evidence (or lack thereof) as a whole.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC 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 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 award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client, and we frequently spot issues and defenses that other lawyers miss. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Pennsylvania Superior Court Affirms Suppression of Cell Phone Evidence in Drug Case Because Police Looked at Phone Screen Without Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Carter, holding that the trial court properly suppressed a cell phone where the police looked at the cell phone’s screen during the execution of a search warrant for drugs without getting a warrant to look at the cell phone itself.

The Facts of the Case

The defendant was under investigation by the Lycoming County Narcotics Enforcement Unit (“LCNEU”) for alleged crack cocaine sales. The officers allegedly conducted several controlled buys in June, July, and November 2023. The controlled buys involved using confidential informants to purchase drugs near the defendant’s residence in Williamsport, PA. Based on the information obtained from these controlled buys, the officers obtained search warrants for his home.

During the execution of one of the search warrants, the officers claimed that they saw the defendant’s cell phone screen light up. It apparently displayed a partial text message from a woman allegedly involved in some of the drug deals. An officer photographed the message and later used it to obtain another warrant to seize and search the phone itself. The initial warrant did not authorize searching or seizing the phone. The defendant was then charged with drug delivery offenses such as possession with the intent to deliver.

The Motion to Suppress

The defense attorney filed a motion to suppress the cell phone evidence, arguing that police conducted an unlawful search by looking at and photographing the phone’s screen without first obtaining a search warrant. The trial court agreed, finding that even a “small” intrusion into a cell phone, such as reading a text message notification, counts as a search under both Pennsylvania and U.S. Supreme Court law.

The court also doubted the police explanation, suggesting that the officers were not totally credible. The court was skeptical that the phone screen “lit up on its own” to reveal a six-hour-old message, concluding it was more likely that officers manipulated the phone given the age of the message. Because the phone evidence was unlawfully obtained in that police likely manipulated the phone before obtaining a warrant, the court ruled that the evidence from the phone was “fruit of the poisonous tree” and had to be suppressed. The Commonwealth appealed.

The Superior Court’s Ruling

On appeal, the Commonwealth argued that simply observing the phone screen fell within the “plain view” exception to the warrant requirement. The police had the right to be in the house based on the first warrant, so there was no reason they could not look at the phone given that the phone was in plain view. The Superior Court rejected this argument. Relying on Riley v. California and Commonwealth v. Fulton, the court reaffirmed that cell phones are constitutionally protected spaces. Even minimal intrusions, like reading a text message, require a warrant.

The Superior Court also concluded that the trial court acted within its authority to question the credibility of the assertions contained in the affidavit and concluded that the “plain view” doctrine did not apply. As a result, the Court affirmed the suppression of the defendant’s phone and all evidence derived from it.

The Takeaway

This decision highlights how strongly Pennsylvania courts protect privacy interests in cell phones. Police cannot sidestep the warrant requirement by claiming that a text message or notification appeared in plain view. If officers want to read or use information from a phone, they must get a warrant.

For defendants, this ruling is a reminder that evidence obtained through unconstitutional searches may be excluded, which may significantly weaken the prosecution’s case. For anyone facing drug charges in Pennsylvania, especially cases involving phones, texts, or social media, it is critical to have a defense lawyer who understands the latest case law and knows how to fight unlawful searches.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC 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, 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 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: A Defendant Can Conspire to Commit Second-Degree Murder

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Wellman, holding that conspiracy to commit second-degree murder is a cognizable offense under Pennsylvania law. The Court held both that the offense exists in Pennsylvania and that the evidence was sufficient to uphold the defendant’s conviction.

The Facts of Wellman

The case arose out of a violent robbery which occurred on October 5, 2019, in Philadelphia. The Commonwealth alleged that the defendant and his brother entered an apartment, brandishing a handgun and what appeared to be a rifle. They robbed several occupants of their wallets, phones, and valuables. When the decedent resisted, the defendant pressed a handgun to the decedent’s head and fatally shot him. Police later apprehended the brothers in a nearby alley. The police recovered stolen items, discarded clothing, and a revolver with gunshot residue in it.

The police arrested the defendant, and prosecutors charged him with second-degree murder, robbery, conspiracy, and firearms offenses. He went to trial, and the jury found him guilty. He received a mandatory life-without-parole sentence for the murder, as well as a consecutive five-to-ten year sentence for robbery.

The Superior Court Appeal

On appeal, the defendant’s attorney initially filed an Anders brief, which is a brief indicating that the attorney did not think the defendant had a single viable appeal issue. These should almost never be filed following a trial, especially in a murder case. Accordingly, the Superior Court rejected the Anders brief and directed the attorney to file a new brief for the appeal. The Superior Court had identified a potentially non-frivolous issue: whether the evidence was sufficient to convict the defendant of conspiracy to commit second-degree murder. In a new brief, the defendant argued that he and his brother only agreed to commit a robbery, not murder. The Commonwealth actually went further and argued in its brief that conspiracy to commit second-degree murder is not even a cognizable crime, meaning it does not exist. The Commonwealth did not move to vacate the substantive murder conviction, but it did argue that the Court should vacate the conspiracy conviction.

The Superior Court’s Ruling

The Superior Court rejected both positions:

• Sufficiency of the Evidence: The Court held that the robbery agreement, carried out with firearms and escalating violence, supported the inference that the brothers entered into a conspiracy that encompassed second-degree murder. Even without an express plan to kill, the inherently dangerous felony and Wellman’s use of a firearm made the risk of death foreseeable.

• Cognizability of the Offense: Relying on the Pennsylvania Supreme Court’s decision in Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013), the Court concluded that conspiracy to commit second-degree murder is a legally valid offense. Just as one can conspire to commit third-degree murder or involuntary manslaughter, one can conspire to commit felony murder by agreeing to engage in conduct that carries a wanton disregard for life.

The Court therefore affirmed Wellman’s life sentence and rejected the Commonwealth’s somewhat unexpected argument to vacate the conviction.

Takeaway

This decision settles an open question in Pennsylvania law: conspiracy to commit second-degree murder is a cognizable offense. Defendants charged under this theory cannot avoid liability by arguing that felony murder is “unintentional.” If conspirators agree to commit a dangerous felony like armed robbery, they may be held liable not just for the robbery, but also for any resulting deaths. This is true even where no specific intent to kill is proven.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Goldstein Mehta LLC 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, 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 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.