Philadelphia Criminal Defense Blog
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.
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.
PA Superior Court Reverses Rule 600 Dismissal in Commonwealth v. Farlow, Holds Rule 1013 Exclusively Governs Speedy Trial in Philadelphia Municipal Court
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
In Commonwealth v. Farlow, 2025 PA Super 76, the Pennsylvania Superior Court reversed an order dismissing charges on Rule 600 speedy trial grounds, holding instead that Rule 1013—not Rule 600—governs speedy trial calculations in cases tried in the Philadelphia Municipal Court. The Court held that pre-arrest delay is essentially not an issue in a misdemeanor case in Philadelphia because Rule 1013’s speedy trial requirement runs from preliminary arraignment (which typically occurs when the defendant is arrested) rather than when the police file a criminal complaint (which may happen long before the arrest).
Background
The defendant was charged on September 20, 2021, with simple assault and recklessly endangering another person (“REAP”) based on conduct which allegedly occurred on August 22, 2021. The police promptly obtained an arrest warrant, but they did not arrest the defendant until March 21, 2023, which was over eighteen months later. The defendant was also originally charged with a felony aggravated assault charge, so the defendant was entitled to a preliminary hearing in the Philadelphia Municipal Court. The Municipal Court judge dismissed the aggravated assault charge at that hearing, and so the remaining misdemeanor charges were remanded for trial in the Philadelphia Municipal Court.
On the scheduled trial date of May 23, 2023, the defendant argued a motion to dismiss under Pa.R.Crim.P. 600, arguing that Commonwealth had not acted with due diligence during the pre-arrest period in locating the defendant and arresting her. The Commonwealth was ready for trial on that date, but if the time between the filing of the complaint and the arrest counted for speedy trial purposes, then the Commonwealth would have already violated Rule 600. Rule 1013 requires a defendant in a Municipal Court case to be brought to trial within 180 days of preliminary arraignment, but Rule 600, which applies to all Common Pleas cases, requires a defendant to be brought to trial within 365 days of the filing of the criminal complaint. Thus, if Rule 600 also applied, then the Commonwealth violated the defendant’s speedy trial rights.
The Municipal Court judge agreed with the defendant that both rules applied and dismissed the case. The Commonwealth appealed to the Court of Common Pleas, and the Common Pleas judge affirmed. That judge reasoned that Rule 600 governed the case with respect to the lengthy pre-arrest delay and Rule 1013’s silence on that issue. More than a year had passed from the filing of the criminal complaint, so the Common Pleas judge affirmed the dismissal of the charges.
The Commonwealth appealed to the Superior Court, arguing that Rule 1013 should apply to cases remanded for trial in Municipal Court and that, under Rule 1013’s timeline, no violation had occurred because Rule 1013 does not include pre-arrest delay in the calculation. Instead, time begins running under Rule 1013 essentially at arrest.
The Superior Court’s Analysis
The Superior Court agreed with the Commonwealth and clarified that Rule 1013—not Rule 600—governs speedy trial rights in cases ordered to be tried in the Philadelphia Municipal Court even if the case was initially filed as a felony. The Court held that Rule 1013(A)(3) explicitly provides for a 180-day deadline starting from the date of preliminary arraignment or the order transferring the case, whichever is greater.
Because the defendant was preliminarily arraigned on March 22, 2023, and the charges were dismissed before the 180-day period expired, the Superior Court found no Rule 1013 violation and reversed the dismissal.
The Court rejected the defendant’s argument that Rule 600 should apply to pre-arrest delay in such cases under Rule 1000(B). While acknowledging the potential due process concerns created by prolonged pre-arrest delay, the Court emphasized that neither Rule 600 nor Rule 1013 includes language covering that specific issue in this context. Notably, the Court found that while Rule 1013 accounts for pre-arrest delay when a defendant appears by summons, it intentionally begins the trial clock at arraignment in arrest warrant cases, signaling a deliberate drafting choice.
Takeaway
Interpreting the rules in this matter leads to a bizarre result. If the defendant had waived the preliminary hearing and agreed to have the felony charges tried in the Court of Common Pleas, then Rule 600 would have applied, and the case should have been dismissed. But because the defendant was successful at the preliminary hearing in having the felony dismissed and the case remanded, the defendant gave up the speedy trial defense available under Rule 600. That makes no sense as the defendant should not have to waive the preliminary hearing in order to then have a more serious case dismissed. Further, this interpretation of the rules means that the Commonwealth has no obligation to find and arrest a defendant for a less serious misdemeanor case, but the Commonwealth must promptly arrest a defendant for a felony case or the felony could be dismissed. Essentially, it makes it more likely that a more serious case will be dismissed on speedy trial grounds rather than a less serious case. Further, the rules are simply silent on whether Rule 600 applies in the absence of a specific provision in Rule 1013 to the contrary. Hopefully, the defendant will seek reargument or petition the Supreme Court.
This decision serves as a crucial reminder that in Philadelphia, once a felony charge is dismissed and the case is remanded to the Municipal Court for trial on remaining misdemeanor charges, Rule 1013 governs the speedy trial timeline. While Rule 600 begins the clock at the filing of the complaint and covers pre-arrest delay, Rule 1013 begins at the preliminary arraignment—effectively excluding pre-arrest periods from its calculus.
Defense attorneys handling cases where the charges may get remanded must now decide whether it may make sense to actually waive the preliminary hearing in order to retain stronger speedy trial protections rather than contesting the charges at the preliminary hearing and giving up the protections of Rule 600 in a case involving a lengthy pre-arrest delay. This is a difficult decision to make as the defense may not have discovery which shows the reason for the pre-arrest delay at the time of the preliminary hearing. Alternatively, the Court left open the possibility of challenging pre-arrest delays under constitutional due process principles.
Citation: Commonwealth v. Farlow, 2025 PA Super 76 (Mar. 28, 2025).
Facing criminal charges or appealing a criminal case in Pennsylvania?
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.
PA Superior Court: Forwarded Emails May Qualify as Duplicates for Best Evidence Rule
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Fischer, holding that the trial court properly admitted forwarded emails as duplicates under the best evidence rule even though forwarded emails can easily be tampered with or forged. The Court held that the best evidence rule did not prohibit the admission of the emails.
The Facts of the Case
The defendant and the complainant, his ex-fiancée, were involved in a ten-year relationship that ended prior to August 2020. They shared a child, who was two years old at the time of the events in question. Between August and September 2020, the defendant allegedly engaged in repeated communications directed toward the complainant. The communications involved making phone calls to the complainant, sending text messages and emails, and making social media posts tagging the complainant. On one occasion, the defendant made 100 calls to the complainant in a single day, which seems excessive.
The communications included threats and manipulative language. For example, one email stated: “If you don’t ensure our daughter is reunited with me this evening, your life will change forever tomorrow, as will your mother’s. Tread carefully. You’re being watched.”
At trial, the Commonwealth relied on forwarded emails from the complainant. The complainant had forwarded the emails from one account to another and then printed out the emails and given them to the police. The prosecution introduced them into evidence as evidence of the defendant’s harassing conduct.
The Commonwealth charged the defendant with three counts of harassment and one count of stalking. A jury convicted him of two harassment charges but acquitted him of stalking and one of the three harassments counts. The trial court sentenced the defendant to two years of probation with restrictive conditions. The defendant appealed, arguing that the trial court erred in admitting the forwarded emails because they should not have been admissible under the Best Evidence Rule.
The Superior Court Appeal
The defendant argued that the forwarded emails were not admissible for three reasons.
They were not “originals” or “duplicates” under the Pennsylvania Rules of Evidence.
The forwarding process allowed for potential manipulation of the content.
Omitted portions of the email correspondence removed necessary context from the evidence.
The trial court overruled these objections, admitting the emails as “duplicates” under Pennsylvania Rule of Evidence 1001(e), which defines a duplicate as a copy produced through an electronic or other reliable process that accurately reproduces the original.
The Superior Court affirmed the trial court’s decision, holding that the forwarded emails were properly admitted as duplicates. The Court’s reasoning was based on the following:
Duplicate Status: The Court determined that the forwarded emails met the definition of duplicates because they were created through an electronic process that accurately reproduced the original content, including the sender’s and recipient’s email addresses, timestamps, and subject lines. The forwarded emails contained more detailed metadata than the screenshots at issue in Commonwealth v. Talley, a leading case on the Best Evidence Rule.
Authenticity: The defendant failed to raise specific challenges to the authenticity of the emails. The complainant authenticated the forwarded emails through her testimony, testifying that they were identical to the messages she received from the defendant. Thus, this claim was waived, and it would have been rejected anyway because the complainant could authenticate the emails as the emails that she received.
Fairness: The Court rejected the defendant’s argument that the forwarded emails were unfairly admitted because other communications were omitted. The Court noted that the defense could have addressed these omissions through cross-examination or by introducing additional evidence.
Precedent: The Court relied on the Pennsylvania Supreme Court’s decision in Talley, which held that screenshots of text messages are admissible as duplicates under the Best Evidence Rule if created through a reliable process and authenticated at trial.
Ultimately, the Superior Court held that the forwarded-and-then-printed emails were duplicates of the originals and that forwarding an email and then printing it was basically the same thing as screenshooting it. In Talley, the Supreme Court ruled that screenshots of text messages were admissible as duplicates.
The problem is that screenshotting in fact creates a duplicate, whereas a forwarded email is not the exact same thing as the original email. It is easy for someone to change the text in the forwarded email, and one of the judges issued a concurrence suggesting that she would not have allowed for the admission of the emails because the risk of manipulation was too high.
In this case, however, the Court ruled that the emails were properly admitted and that any challenge to whether they were real should be decided by the fact-finder rather than as a challenge to their admissibility. The defense was free to cross-examine the complainant on the fact that she did not have the original emails available and then argue that they were fake. The problem with this analysis is that judges and juries are often too quick to rely on electronic evidence like text messages and emails that looks real even when it is not. It takes only a matter of seconds to edit or forge a text message or email, and unless someone is particularly savvy with technology, they may not realize just how easy it is to forge this type of evidence. Further, it is usually not particularly difficult to obtain actual records from the service provider to show that the screenshots or forwarded messages are real. Unfortunately, the courts have generally rejected the idea that the prosecution should have to obtain solid proof that the images are real, instead shifting the burden to the defense to prove that they are fake. Hopefully, the defendant will seek further review in this case. The appellate courts may also begin to reevaluate the low standard for the admissibility of electronic evidence as it becomes clearer that this type of evidence can be fabricated in a matter of seconds.
Facing criminal charges or appealing a criminal case in Pennsylvania? 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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including 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.