Philadelphia Criminal Defense Blog

Zak Goldstein 9/30/25 Zak Goldstein 9/30/25

PA Supreme Court: Defendant Failed to Present Sufficient Evidence to Require Voir Dire Question on Whether Jurors Will Always Believe Alleged Child Abuse Victims

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Smith, affirming a trial court's broad discretion in refusing a specific jury selection question about a juror’s potential for bias in favor of the truthfulness of alleged child sexual assault victims. The Court concluded that based on the record presented to the trial judge, there was no abuse of discretion in denying the proposed inquiry because the defendant failed to show that jurors tend to believe child abuse complainants more than other potential witnesses. Had the defense presented more evidence to the trial court, however, the question may well have been required.

The Issue in Smith

The defendant, who had been convicted of child sexual assault charges, challenged the trial court's refusal to ask prospective jurors the following specific question during voir dire (jury selection):

Are you more likely to believe the testimony of a child alleging sexual abuse because you do not believe a child could lie about sexual abuse?

The defendant argued that in a case where the uncorroborated testimony of the child complainants was central to the Commonwealth’s case, his right to an impartial jury required a specific inquiry into a potential "fixed bias" that children do not lie about sexual abuse.

The Court's Ruling: Insufficient Evidence to Support the Question

The Supreme Court applied an abuse of discretion standard of review to the trial court’s ruling and rejected the defendant’s challenge as follows:

No Foundation at Trial: The Court noted that the defendant’s argument for the existence of this fixed bias was a "bald assumption" before the trial court as he "offered no support for the proposition that the inquiry addressed a fixed bias or prejudice.” Because the Court must review the trial court's decision based on the information it had at the time, the defense's later, more detailed arguments on appeal were not helpful in terms of retroactively showing that the trial court erred.

Adequate General Inquiry: The trial court had conducted extensive general and individual voir dire. This included informing the panel of the nature of the charges and asking if anything would prevent them from being

fair and impartial, as well as inquiring if they or anyone close to them had been victims of sexual assault or child abuse. The trial court also excused multiple jurors for cause who claimed an inability to be fair.

Fixed Bias vs. Credibility: The Court clarified that inquiries designed to uncover a fixed bias, such as one related to a certain category of witnesses, are not the same as instructions on general witness credibility. A fixed bias precludes an impartial determination of credibility. However, based on the lack of a foundation supporting the existence of this particular bias due to the defendant’s failure to develop the record at the trial level, the trial court did not abuse its discretion.

The Court's decision essentially provides a roadmap for future cases: a trial court is only free to refuse this line of inquiry if the party requesting it fails to present a developed, evidence-based argument for the existence of a fixed bias. Here, the defendant presented strong evidence of the bias to the Supreme Court such that the Court may well have reversed had the evidence been presented to the trial court, but because the trial court could only make a ruling based on the evidence presented at the time, the Supreme Court rejected the defendant’s challenge.

Unlawful Contact Remand: Reconsideration in Light of Strunk

The Court also addressed the defendant’s challenge to his convictions for unlawful contact with a minor (18 Pa.C.S. § 6318).

Commonwealth v. Strunk: Subsequent to the Superior Court's decision affirming in this case, the Supreme Court narrowed the scope of the unlawful contact statute in Commonwealth v. Strunk.

Strunk held that Section 6318 is an "anti-grooming statute" intended to criminalize and punish “communication designed to induce or otherwise further the sexual exploitation of children.”

The Outcome: Given the significant clarification in the law, specifically, the refinement of the sufficiency of the evidence required for convictions under Section 6318—the Supreme Court vacated the Superior Court's judgment on this issue and remanded the case for reconsideration in light of Strunk. The Superior Court will now have to apply the statute’s narrower focus on "communicative behavior” in this case on remand.

Ultimately, although the result is bad for this particular defendant, the case is good for defendants in general in that it shows that should a defendant make an adequate record, they might be entitled to ask potential jurors about whether they will always believe alleged child abuse victims. Similarly, the Court continues to hold that the unlawful contact statute is not nearly as broad as prosecutors typically claim.

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, 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.

Zak Goldstein 9/19/25 Zak Goldstein 9/19/25

Pennsylvania Superior Court Approves Use of Google Geofence Warrants in Criminal Cases

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has issued an important decision on digital privacy and criminal investigations. In Commonwealth v. Choice, the Court considered, for the first time, whether police may use geofence warrants to obtain Google location history data even though the warrants, by definition, do not identify a particular suspect. These warrants require Google to search its database for any devices present in a particular area during a specific time period. The Superior Court ultimately upheld the use of the geofence warrant and the conviction, finding that the warrants were sufficiently narrow (particular) and supported by probable cause.

The Facts of the Case

In January 2019, a nurse was driving his Toyota Tundra northbound on Route 309 in Montgomery County when he was suddenly shot in the arm. The complainant immediately called 911 while following the suspect’s maroon vehicle. Although he was able to give a description and even followed the vehicle for over a mile, he could not identify the license plate before losing sight of the car, leaving the police with few suspects.

Trooper Eugene Tray of the Pennsylvania State Police was assigned to investigate. With little physical evidence tying a suspect to the shooting, Trooper Tray applied for a geofence warrant in December 2020. The warrant asked Google to provide anonymized location history data for any devices within a defined stretch of Route 309 and the Highland Avenue exit ramp between 9:20 and 9:27 p.m., which was the time when the shooting occurred.

In response, Google provided an anonymized list of device IDs. Trooper Tray determined that one of the mobile devices matched the movements of the suspect’s car. He then obtained a second warrant compelling Google to disclose the subscriber information for that device. Google linked the phone to the defendant, who was later charged with aggravated assault. Prior to trial, the defendant moved to suppress the evidence, arguing that the warrants amounted to unconstitutional “general searches” of millions of Google accounts. The trial court denied the motion to suppress, and the defendant was convicted in a stipulated bench trial. He appealed.

The Pennsylvania Superior Court’s Ruling

On appeal, the defendant argued that the warrants failed both the probable cause requirement and the constitutional limits on overbroad searches. He claimed there was no individualized suspicion that the shooter had a cell phone, let alone one running Android software with Google location services enabled. He also argued that the process gave law enforcement unlimited discretion because it allowed them to sift through unrelated device data.

The Superior Court rejected these arguments. The Court emphasized that cell phone use is so pervasive that it is reasonable to assume most people, including criminal suspects, carry one. Combined with the precise details provided by the victim during his 911 call, the Court found there was a “fair probability” that Google’s location history data would produce relevant evidence.

The Court also concluded that the warrants were not overbroad. Unlike warrants that sweep up months of data or large geographic areas, this one was carefully limited to two short road segments and a seven-minute time window. Moreover, because Google anonymized the data before handing it over, police could not arbitrarily rummage through personal information. Officers were required to return to court for a second warrant to obtain the identity of the one device they believed was relevant.

Notably, this was a mater of first impression for a Pennsylvania appellate court. Other courts, such as the United States Court of Appeals for the Fifth Circuit, have found that geofence warrants are unconstitutional. Accordingly, this issue may be reviewed by the Pennsylvania Supreme Court or the United States Supreme Court.

The Takeaway

This case is a significant development in Pennsylvania law. It shows that courts are prepared to approve geofence warrants where police can identify the precise location and timeframe of a crime. Prosecutors will likely seek this type of data more frequently in serious cases ranging from shootings to robberies and other violent offenses.

At the same time, the decision highlights the tension between privacy rights and investigative technology. Defense attorneys should continue to challenge geofence warrants as unconstitutional general searches, and future cases, including those currently pending before the Pennsylvania Supreme Court such as Commonwealth v. Kurtz, may further refine the law. For now, however, defendants should expect prosecutors to use Google location data when it is available.

Facing criminal charges? We can help.

Zak Goldstein 9/13/25 Zak Goldstein 9/13/25

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

Criminal Defense Lawyer Zak Goldstein — 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.

Zak Goldstein 9/10/25 Zak Goldstein 9/10/25

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

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?

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.