Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire recently won the full dismissal of Possession with the Intent to Deliver (“PWID”) and Knowing and Intentional Possession of a controlled substance charges at a preliminary hearing. In the case of Commonwealth v. D.H., the Philadelphia Municipal Court Judge dismissed the entire case after agreeing with Attorney Goldstein’s argument that prosecutors had relied entirely on hearsay evidence in presenting their case that D.H. allegedly sold drugs to a confidential informant.
In Commonwealth v. D.H., police claimed that they had conducted a multi-day narcotics investigation involving the use of a confidential informant. An officer testified at the preliminary hearing that he had arranged for the confidential informant to make a number of controlled buys. On day one, the confidential informant made two controlled buys of crack cocaine using pre-recorded buy money from an address in Philadelphia. On one of the times, an unknown female opened the door for the confidential informant. The police could not see who opened the door for the second transaction that day.
Police returned the next day armed with a search warrant. Prior to executing the search warrant, they sent the CI to the house one more time in an attempt to make another purchase of crack cocaine. Officers watched the CI approach the house. Again, the CI was let in by an unknown female. The CI then returned to the police with the newly-purchased crack cocaine. The defendant, D.H., and the female, then walked out of the house briefly and then returned and went back inside. Officers decided to execute the search warrant once they went back inside.
The police report for the case claimed that one of the officers who executed the search warrant saw D.H. grab a bag full of crack cocaine which matched that which had been sold to the CI and try to throw that bag in the toilet of an upstairs bathroom. Other officers claimed in their reports that they found paperwork with D.H.’s name on it in a bedroom which contained both an additional quantity of crack cocaine as well as some of the pre-recorded buy money. Therefore, because D.H. allegedly tried to get rid of the drugs and had identifying documents in a room that had the buy money in it, police assumed that he must have been the person in the house who had sold the crack to the CI on the three occasions prior to the execution of the warrant.
The problem with the case, however, was that the officer who actually testified at the preliminary hearing had not seen any of the things mentioned in the report. The officer was only able to testify to the allegations that he had seen the CI go into the house on three occasions, but he did not see D.H. ever interact with the CI. He also had not personally seen D.H. try to get rid of the drugs, and he had also not recovered the buy money himself. Further, on cross-examination, he admitted that the paperwork that they found with D.H.’s name on it actually showed that he lived at a different address.
At the hearing, prosecutors repeatedly attempted to question the officer as to the observations and recoveries made by the rest of the narcotics squad. Attorney Goldstein repeatedly objected to the introduction of this hearsay testimony. In general, some hearsay is admissible at a preliminary hearing. In the suburban counties, many magisterial district judges have begun allowing entire cases to be held for court based on nothing more than hearsay testimony. Fortunately, most Philadelphia judges continue to require at least some actual eyewitness testimony and still impose some limits on the use of hearsay at a preliminary hearing. Therefore, Attorney Goldstein moved for the dismissal of the case because the officer who testified had not actually seen D.H. do anything. He had not seen him interact with the CI, he had not seen him in possession of the drugs, and he had not recovered the buy money that was supposedly near D.H.’s mail. Thus, absolutely everything he testified to was hearsay that had been told to him by other officers.
The Municipal Court Judge agreed and dismissed the case. D.H. was immediately free to go, and the charges will be eligible for an expungement.
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