Philadelphia Criminal Defense Blog

Zak Goldstein 5/29/26 Zak Goldstein 5/29/26

Third Circuit: COVID-Era Courtroom Closure and Marshals Blocking the Defendants’ Mothers’ Entry Violated the Sixth Amendment, but Convictions Affirmed Anyway

Criminal Defense Lawyer Zak Goldstein — Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided United States v. Girard and United States v. Harry, Nos. 24-2097 & 24-2148 (3d Cir. May 26, 2026), holding that the District Court violated the defendants’ Sixth Amendment right to a public trial twice during a federal racketeering trial in the U.S. Virgin Islands. On the first day of trial, the court required every spectator to watch from an overflow room rather than in the courtroom. On several later days, federal marshals stationed at the courtroom door kept the defendants’ mothers from coming in, even though there were seats available.

Despite finding two constitutional violations, the Court affirmed the convictions. The defendants had not thoroughly objected at the time (although their lawyers repeatedly expressed concerns), so the Court reviewed the issue for plain error. Under that more demanding standard, the Court concluded that a retrial was not warranted because the trial as a whole still had what it called the “publicity, neutrality, and professionalism” the Sixth Amendment is meant to protect.

The Facts

The defendant was the head of a violent drug-trafficking enterprise in the U.S. Virgin Islands. The co-defendant served as the enterprise’s armorer. A jury convicted the defendant of 22 counts of drug, firearm, racketeering, and other charges, and convicted the co-defendant of seven counts of racketeering and firearms charges.

The trial took place in March 2022, the day after the Chief Judge of the District Court of the Virgin Islands issued an order incrementally reinstating in-person proceedings that had been suspended during the COVID-19 pandemic. Because of ongoing concerns about the virus, the District Court restricted who could be inside the courtroom. The jury sat in the jury box, and the court set up an overflow room with an audiovisual feed for anyone who could not watch from inside the courtroom.

After the jury was selected, but before opening arguments, the defendant’s lawyer asked what arrangements had been made for the public, and asked that at least the defendant’s family be allowed in “to comply with the Constitution.” The trial judge initially refused, then agreed to allow some spectators in beginning the next day. For all of day one, however, every spectator, including the defendants’ mothers, was directed to the overflow room.

Things did not improve on the days that followed. The co-defendant’s lawyer reported the next morning that the co-defendant’s mother was still not in the courtroom. Several days later, defense counsel pointed to a newspaper article reporting that the overflow room had not opened until around 10:00 a.m. on one of the trial days. The judge called that an “inadvertent error.” A day after that, the co-defendant’s lawyer told the judge that federal marshals had again prevented the co-defendant’s mother from entering the courtroom that morning, and the judge said he would “deal with that.”

After the verdicts, both defendants moved for a new trial. The District Court held an evidentiary hearing and credited the testimony of the defendant’s mother, who said that for most of the trial, federal marshals had told her and the co-defendant’s mother to watch from the overflow room without ever explaining why. The District Court nevertheless denied the motions, finding that seats had been available in the courtroom on a first-come basis and that any technical problems with the audiovisual feed had been brief.

The Sixth Amendment Right to a Public Trial

The Sixth Amendment guarantees criminal defendants the right to a public trial. The Supreme Court has long recognized that this right is rooted in centuries of Anglo-American practice and that trials are presumptively “open to all who care to observe.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564 (1980) (plurality opinion). The right is not absolute, but courts can only close the courtroom in rare circumstances. Under Waller v. Georgia, 467 U.S. 39 (1984), a trial court has to identify an overriding interest that justifies closure, consider less restrictive alternatives, and make a record explaining its decision.

Excluding specific spectators, rather than closing the courtroom entirely, requires a less demanding showing, what the Third Circuit described as a “substantial reason.” But the trial court still has to consider alternatives and put its reasoning on the record. That requirement traces back to two older Third Circuit cases, U.S. ex rel. Laws v. Yeager, 448 F.2d 74 (3d Cir. 1971), and United States v. Kobli, 172 F.2d 919 (3d Cir. 1949).

The Court Finds Two Sixth Amendment Violations

Applying that framework, the Third Circuit identified two violations.

The first was the day-one closure of the courtroom. By directing every interested spectator to the overflow room, the District Court had effectively closed the courtroom, and it never explained why a less restrictive option, such as letting in a smaller, socially distanced audience, would not work. The Government argued that the closure was “trivial” because spectators could still watch through the audiovisual feed. The Third Circuit disagreed. One of the purposes of the public trial right is to keep judges, jurors, and lawyers conscious of the seriousness of what they are doing, and the physical presence of spectators serves that purpose more meaningfully than remote viewing. The closure also covered opening arguments and the start of evidence, which the Court considered substantial.

The Court did agree that protecting trial participants from COVID-19 can qualify as an overriding interest that justifies some courtroom restrictions, joining the Second, Ninth, and Tenth Circuits on that point. But because the trial court allowed in-person spectators with social distancing on every later day, the record gave no reason why day one had to be different.

The second violation came after the District Court reopened the courtroom. The Third Circuit found that, despite the formal reopening, federal marshals continued to turn away the defendants’ mothers for several days, even when seats were available. The Court rejected the District Court’s finding that seats had been available on a first-come basis as inconsistent with its own credibility determination favoring the defendant’s mother. And it held that the trial judge’s lack of personal awareness of the marshals’ exclusions did not cure the problem. Joining the First, Second, and Seventh Circuits, the Third Circuit held that exclusions by courtroom staff can violate the public trial right even when the judge does not know about them.

Why the Convictions Were Affirmed

The convictions still stood. Neither defendant had made a clear, contemporaneous objection to the closures, which meant the Court could only reverse on plain error. Under United States v. Olano, 507 U.S. 725, 732 (1993), a defendant who fails to object must show that there was an error, that the error was plain, that it affected substantial rights, and that it seriously affected the fairness, integrity, or public reputation of the proceedings.

The Court held that the first three requirements were either satisfied or could be assumed, but it declined to find that the errors affected the integrity of the proceedings. Drawing on its 2020 decision in United States v. Williams, 974 F.3d 320 (3d Cir. 2020), the Court explained that the trial as a whole retained the “publicity, neutrality, and professionalism” the public trial right protects. The public could observe the trial at all times, either inside the courtroom or through the audiovisual feed. The day-one closure was a good faith COVID measure rather than an attempt at secrecy. The trial judge fixed the marshals’ misconduct as soon as he learned about it. And the trial itself had run for three weeks, involved nearly 50 witnesses, and concluded more than four years before the appeal was decided. A retrial under those circumstances, the Court said, would be a “windfall inimical to the interests of justice.”

The Court also rejected the co-defendant’s separate due process and compulsory process claims. There was no evidence in the record of any off-the-record meeting between the trial judge and Harry’s codefendant witnesses, who had invoked the Fifth Amendment through their own counsel. The Court declined to require question-by-question invocation of the privilege where Harry had never disputed the witnesses’ entitlement to invoke it.

The Takeaway

Although the convictions were affirmed, Girard is an important decision on the public trial right. It confirms that even in the middle of a public health emergency, a federal trial court cannot simply close the courtroom without first considering less drastic ways to protect everyone. A blanket order sending every spectator to an overflow room, with no explanation of why a socially distanced audience would not work, is not enough.

It also makes clear that the Sixth Amendment reaches into how courtrooms are actually staffed. When a marshal or other court officer turns a family member away at the door, that exclusion counts, even if the trial judge has no idea it is happening. The Third Circuit has now joined the majority of circuits that treat those exclusions as part of the public trial inquiry.

At the same time, Girard is another illustration of how difficult it is to win on appeal when an objection was not made at trial. Even where the Court of Appeals agrees that a constitutional violation occurred, plain error review allows it to leave the conviction in place if the trial as a whole appears fair. That is one of the reasons that having an experienced criminal trial lawyer in the courtroom matters so much. Issues that are not raised at the right moment can be very hard to fix later.

Facing Criminal Charges? We Can Help.

If you or a loved one are facing criminal charges, serving a state or federal sentence, or considering a direct appeal, post-conviction petition, or federal habeas petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have 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 5/23/26 Zak Goldstein 5/23/26

PA Supreme Court: ShotSpotter Alert Plus Furtive Movements and Walking Away Provides Reasonable Suspicion

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided Commonwealth v. Foster, No. 12 WAP 2024 (Pa. May 19, 2026), holding that the totality of the circumstances supported reasonable suspicion to detain the defendant after a ShotSpotter alert reported gunfire on a residential block at 2:00 a.m. The Court declined to address whether ShotSpotter alerts, standing alone, are reliable enough to support a Terry stop, treating the alert here as one factor among several.

There is also a meaningful win for the defense bar tucked inside the opinion. The Court refused to credit the Commonwealth’s “high-crime area” argument because the officer’s testimony was too vague and was not tied to the time of the stop. That portion of the decision reinforces last year’s ruling in Commonwealth v. Lewis, 343 A.3d 1016 (Pa. 2025), and gives defense counsel a usable tool at suppression hearings.

The Facts

At around 2:00 a.m. on September 17, 2019, a Pittsburgh police officer received a ShotSpotter alert reporting a single gunshot near 1439 Hoffman Street. A second alert reported four more shots at the same location while the officer was en route. He reached the intersection of Hoffman and Chateau Streets about ten to fifteen seconds after the second alert and saw a parked car with its headlights on. The defendant was in the driver’s seat. A woman was in the passenger seat. They were the only people on the street.

As the officer turned onto Hoffman Street and activated his overhead lights, the defendant got out of the car and walked toward a nearby residence. The officer testified that the female appeared to be “moving around in the car trying to grab things,” including her purse. The officer exited his cruiser and ordered the defendant to return to the street. When he did not comply, officers drew their weapons and forcibly handcuffed him.

After the seizure, officers recovered shell casings near the car and a firearm in the woman’s purse. The woman later admitted she had accidentally discharged the weapon inside the vehicle. The defendant meanwhile, smelled of alcohol and his eyes were glassy. He failed field sobriety testing, and his BAC came back at .200. He was charged with DUI and with driving while his operating privilege was suspended.

The defendant filed a motion to suppress, arguing that the seizure was not supported by reasonable suspicion. The trial court denied the motion, the defendant was convicted at a bench trial, and the Superior Court affirmed in an unpublished memorandum. The Supreme Court granted allocatur to address whether the lower courts placed too much weight on the defendant’s spatial and temporal proximity to the ShotSpotter alerts.

The Legal Framework

Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment both prohibit unreasonable seizures. An investigative detention (a Terry stop) must be supported by reasonable suspicion of criminal activity. Reasonable suspicion is less demanding than probable cause but still requires “specific and articulable facts” supplying a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” The stop must be “justified at its inception,” and facts that develop only after the seizure cannot retroactively support it.

The parties agreed that the seizure occurred when the officer exited his cruiser and ordered the defendant back to the street. The question was whether the totality of the circumstances at that moment supplied reasonable suspicion.

The Supreme Court’s Holding

The Court held that the totality of the circumstances supported reasonable suspicion. It identified four factors: (1) two ShotSpotter alerts indicating gunfire in a residential neighborhood in the middle of the night; (2) the officer’s rapid response, which left limited opportunity for a shooter to flee the immediate area; (3) the fact that the defendant and the woman were the only people present at the precise location of the alerts; and (4) what the Court characterized as the pair’s “furtive and evasive behaviors” when the officer arrived — the woman moving around inside the car as the cruiser approached with overhead lights activated, and the defendant getting out of the car and walking toward a private residence as the officer pulled up.

The Court declined to treat ShotSpotter alerts as the equivalent of anonymous tips. The defendant and amici — the ACLU, the Pennsylvania Innocence Project and PACDL, and the Allegheny County Public Defender’s Office — had urged the Court to adopt that framework and require independent corroboration of the alert before it could be used to justify a stop. The Court called the proposed framework one that would “unnecessarily complicate[ ] the straightforward legal issue presented,” and resolved the case on a totality-of-the-circumstances basis instead. Importantly, the Court did not actually decide whether ShotSpotter is reliable. It described the technology’s reliability as not properly preserved and ultimately immaterial on the record before it.

The High-Crime Area Argument Fails

The most useful part of the opinion for defense practitioners is the Court’s rejection of the Commonwealth’s “high-crime area” argument. The entirety of the proof was an officer’s answer to a leading question: asked whether the area was “known as a high-crime area,” he replied, “Manchester has its hot spots, yes,” and confirmed that the location “has been” a hot spot “in the past.”

Citing Lewis, the Court reiterated that “merely intoning buzzwords is never sufficient to prove an area is high in crime,” and that conclusory testimony characterizing an area “in broad generalities” does not establish the factor. The Commonwealth must also tie the testimony to the time of the stop, not to some unspecified moment “in the past.” The Court accordingly removed the high-crime area factor from the analysis.

Although the use of ShotSpotter as a factor is bad for the defense, the high crime analysis is helpful. The high crime area label has been doing a lot of heavy lifting in Terry stop cases for years, often supported by nothing more than an officer reciting the magic words on direct. After Lewis and now Foster, that testimony has to come with specifics: what kind of crime, how the officer knows, and a nexus to the time and place of the stop, or it does not count at all.

The Takeaway

Foster expands the set of circumstances in which a ShotSpotter alert can be used to justify an investigative detention in Pennsylvania. The Court did not hold that a ShotSpotter alert alone supports reasonable suspicion, and it expressly declined to decide whether ShotSpotter alerts are reliable enough to be treated like other evidence of crime. But it did hold that an alert, combined with the defendant’s presence at the reported location moments after the alert, the absence of any other people on the scene, and what the Court characterized as furtive and evasive behavior, is enough.

At the same time, the decision continues the Court’s push, begun in Lewis, to require more than buzzwords before an area can be treated as a high-crime area in the reasonable-suspicion analysis. A one-line answer from an officer that the location has been a “hot spot” in the past is no longer sufficient on its own.

Facing Criminal Charges? We Can Help.

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have 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 5/13/26 Zak Goldstein 5/13/26

PA Supreme Court: Trial Courts May Reject a Nolle Prosse Motion Under the “Valid and Reasonable” Standard

The Pennsylvania Supreme Court has decided Commonwealth v. Harrison, holding that a trial court still gets the final say on whether a district attorney may abandon a case by entering a nolle prosequi or nolle prosse. The Court reaffirmed the old Reinhart test: the Commonwealth’s reason for dropping the case must be valid and reasonable, and refused to extend the much more deferential In re Ajaj standard, which only applies to a DA’s decision to disapprove a private criminal complaint at the front end of a case.

The Facts

In May 2018, the complainant walked into a Santander Bank in York and tried to withdraw money without ID. His mother later told police he had just been released from the hospital and seemed delusional. The complainant refused to leave, and the bank called 911.

The defendant, who was a police officer, responded. After the complainant would not leave, the defendant tried twice to Tase him without success. A second officer arrived, and the two of them wrestled the complainant to the ground, handcuffed him, and walked him out to the patrol car. When the complainant would not bend down to get into the back seat, the defendant said he was going to drive-stun the complainant in the thigh. Instead of drawing his Taser, he drew his Glock, put it against the complainant’s thigh, and pulled the trigger. The complainant yelled, “Dude why’d you shoot me?” He spent 17 days in the hospital.

The state police charged the defendant with one count of negligent simple assault, a second-degree misdemeanor. The magistrate held the case for court.

The DA Tries to Drop the Case — Twice

The York County DA never tried the case. Instead, it filed two motions to nolle prosequi or suspend/dismiss the charges.

The first motion argued that prosecution was no longer in the interests of justice. The defendant had a 16-year career, was remorseful, his department had been disbanded, and he had agreed to speak to police cadets about avoiding this kind of mistake. The DA said continued prosecution would be punishment for punishment’s sake. The trial court denied the motion. The complainant, the actual victim, testified that no one from the DA’s office had ever spoken to him and that he had learned about the motion from the newspaper.

The second motion took a different angle. A bank customer named Harry Harrington, who had witnessed the shooting, had died in March 2019. The DA now claimed Harrington was the only independent witness and that without him the Commonwealth could not meet its burden of proof. The trial court called the motion “quite lame.” Harrington had died before the DA filed the first motion, in which the DA did not even mention his death. There were other witnesses, including the bank cleaner, who had no connection to either the police or the victim and who had already testified at the preliminary hearing that she saw the defendant shoot the complainant.

The Superior Court affirmed. The DA appealed to the Supreme Court.

The Supreme Court’s Decision

Chief Justice Todd wrote for the majority, joined by Justices Donohue, Wecht, and Brobson. Justices Dougherty and Mundy concurred in part and dissented in part. Justice McCaffery did not participate.

The Court refused to give the DA the deference it wanted. Ajaj holds that a court may overturn a DA’s rejection of a private criminal complaint only for bad faith, fraud, or unconstitutionality. The DA argued the same narrow standard should apply when it wants to drop a case it already filed. The Court said no. Once the DA brings charges, gets a magistrate to hold them for court, and pulls the judiciary into the case, the trial court is not a rubber stamp. It can, and must, independently evaluate whether the DA’s reason for walking away is valid and reasonable.

The Court traced the rule back to an 1850 statute that has always required the trial court’s written approval before a DA can enter a nolle prosequi. That requirement now lives in the Judicial Code and in Pa.R.Crim.P. 585. The Court reaffirmed Reinhart: the trial court accepts the DA’s factual claims if they are supported by a preponderance of the evidence, and then makes its own legal judgment on whether the reason is good enough.

Applying that test, the Court agreed with the trial court that the DA’s second reason, Harrington’s death, was neither valid nor reasonable. Other witnesses could establish what happened, there was video from inside the bank, and the DA had not bothered to mention Harrington’s death in its first motion more than a year after he died.

Why It Matters

This decision keeps the trial court in the picture. A DA cannot get a case held for court and then unilaterally walk away because the office has changed its mind, especially when the victim opposes the dismissal. The reason has to hold up to actual scrutiny.

It is also a useful boundary on Ajaj, which Commonwealth offices have been trying to stretch into other contexts. Harrison confines it to the front end of a case — the decision to charge in the first place — and leaves Reinhart in charge of everything that comes after.

The case cuts both ways for the defense. A defendant who has negotiated a quiet nolle prosse cannot count on the trial court rubber-stamping it. But a defendant whose case the DA is trying to drop in a way that hurts the defense, for example, dropping then refiling, or dropping to avoid an unfavorable ruling, has real ammunition to insist that the court take an independent look at the reason.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Attorneys — Goldstein Mehta LLC Criminal Defense

Zak Goldstein 5/5/26 Zak Goldstein 5/5/26

PA Supreme Court: “Malice Is Malice” — No Heightened Standard for Third-Degree Murder in DUI Cases

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Peters, affirming the defendant’s convictions for third-degree murder and aggravated assault arising out of a fatal DUI crash on Interstate 95 and rejecting the argument that DUI cases are governed by a heightened, “essentially certain to occur” standard for malice. The Court held, in the words of Justice Dougherty’s majority opinion, that “malice is malice,” meaning the same long-standing standard from Commonwealth v. Taylor applies regardless of whether the defendant drove drunk, fired a gun, or engaged in some other reckless conduct.

The Facts of Commonwealth v. Peters

The defendant attended an office holiday party at Ruth’s Chris Steak House in Philadelphia on December 5, 2019. The open bar started at 5:00 p.m., and the defendant drank vodka in a private room until around 8:00 p.m., when he and his coworkers moved to the public bar and he switched to bourbon. Around 10:00 p.m., a coworker offered the defendant a ride home. He declined, and instead asked her to drop him at another bar called Rogue’s Gallery, where he continued drinking beer until midnight.

The defendant had driven his Mazda SUV to work that day. Surveillance footage from the parking garage showed that he had trouble operating the payment kiosk and could not exit the garage normally — when the mechanical arm did not lift, he got out, manually forced one of the arms up, and broke it in the process before driving away with the broken arm dangling behind him.

Once on Interstate 95, the defendant straddled the fog line, exited into New Jersey without using a turn signal, then turned around and re-entered Pennsylvania. Two motorists called 911 to report that the Mazda was passing at high speed, alternating between excessive speeds and speeds well below the limit, and that the taillights were off. Around 1:00 a.m., the defendant crashed into the rear of a Mazda driven by Juan Tavarez, who was driving home from work in the right lane at or just below the 55 mile-per-hour limit, with his flashers on, with three passengers in the car. Tavarez’s car hit a concrete wall and burst into flames. Tavarez and his son Charlys escaped. His other son, Juan Jose Tavarez Santelises, and his coworker, Claribel Dominguez, did not. Both died from thermal burns.

Black box data showed the defendant was driving 113 miles per hour five seconds before the crash and accelerated to 115 miles per hour half a second before impact. He braked, at most, four-tenths of a second before the crash. His blood alcohol concentration was .151, nearly twice the legal limit of .08. At trial, the defendant testified that he had unbuckled his seatbelt and reached for his phone in his backpack on the passenger-side floor because he wanted to check the GPS, and only looked up in time to see the other car.

A Bucks County jury convicted the defendant of fourteen offenses, including two counts each of third-degree murder and aggravated assault. The trial court sentenced him to an aggregate term of 19½ to 39 years in state prison. An en banc Superior Court affirmed, with three judges dissenting.

The Issue: Is There a Different “Malice” Standard for DUI Cases?

The defendant argued on appeal that the Supreme Court’s decisions in Commonwealth v. O’Hanlon and Commonwealth v. Packer had effectively created a DUI-specific malice standard requiring proof that death or serious bodily injury was not just likely, but “essentially certain to occur.” On his reading, the Superior Court majority improperly relied on the more general formulation — a conscious disregard for an unjustified and extremely high risk that the defendant’s actions might cause death or serious bodily injury — which, in his view, only applied to non-DUI cases.

The Commonwealth, by contrast, argued that the Pennsylvania Supreme Court has never created two separate malice standards. There is one definition of malice, drawn from Commonwealth v. Drum and refined in Taylor, and it does not change based on whether the underlying conduct happened to involve alcohol.

The Supreme Court’s Holding: One Standard

A six-Justice majority of the Supreme Court agreed with the Commonwealth and affirmed. Justice Dougherty wrote the opinion, which Chief Justice Todd and Justices Donohue, Wecht, Mundy, and Brobson joined. Justice McCaffery did not participate.

The Court traced the malice standard back to Drum and through Taylor, where a four-Justice majority held that the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm to another, and therefore acted maliciously. The Court then catalogued more than half a century of Supreme Court and Superior Court decisions repeating the same formulation, in both DUI and non-DUI cases.

The Court rejected the defendant’s reading of O’Hanlon. The “essentially certain to occur” language in O’Hanlon, the Court explained, was not a new test for DUI cases; it was simply O’Hanlon’s way of distinguishing ordinary recklessness from the heightened recklessness required for aggravated assault, a statute that has nothing to do with DUI. The Court also pointed out that just four years after O’Hanlon, it relied on the same language in Commonwealth v. Thompson, a shooting case, which would not have made sense if O’Hanlon had really created a DUI-only standard.

The Court read Packer the same way. Although Packer used the “essentially certain to occur” phrase in summarizing O’Hanlon, the Court emphasized that Packer itself ultimately defined malice as a “conscious disregard for an unjustified and extremely high risk that a chosen course of conduct might cause a death or serious personal injury,” and applied that standard, not a separate one, to find malice on Packer’s facts.

The Court therefore restated the rule in plain terms: malice is present if the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm. That standard is the same regardless of whether the defendant drove drunk, fired a gun, or engaged in any other reckless conduct.

Application to the Facts

Applying that standard, the Court held the evidence was sufficient to support the third-degree murder and aggravated assault convictions.

The Court emphasized several pieces of evidence beyond the simple fact that the defendant drove drunk, which the Court reaffirmed is not, standing alone, enough to establish malice. The defendant had been drinking heavily for roughly seven hours. He turned down a coworker’s offer of a ride home. His difficulty operating the payment machine and his decision to break the parking garage gate to get out should have alerted him that he was in no condition to drive. On I-95, he straddled the fog line, alternated between excessive and unusually slow speeds, drove with his taillights off, nearly sideswiped one motorist, and missed his exit twice even though he had lived in the area for six years. Two different motorists found his driving alarming enough to call 911.

Most significant to the Court was the defendant’s decision, while driving 113 miles per hour with a BAC of .151, to unbuckle his seatbelt and rummage on the passenger-side floor for his phone in order to check the GPS. He could have pulled over instead. He did not even slow down. The black box data showed he actually accelerated to 115 miles per hour half a second before the crash. The Court agreed with the Superior Court majority that this conduct virtually guaranteed an accident would occur.

The Court rejected several mitigating arguments. The fact that the defendant tapped the brake at most four-tenths of a second before impact did not break the chain of malice. At 115 miles per hour, the Court observed, the defendant was traveling roughly 168 feet per second, and braking that late was, in the Court’s words, “just as futile as trying to catch a fired bullet.” The defendant’s argument that no one had verbally warned him he was too drunk to drive was also unpersuasive; the Court held that the absence of an explicit warning does not free a defendant to ignore obvious signs that it is unsafe to keep driving. The lack of post-crash belligerence or flight likewise meant little, because the defendant had to be removed from the vehicle and taken to the hospital for a week.

Why This Decision Matters

Peters settles a question that has been bouncing back and forth between the Superior Court and the Supreme Court for years: whether DUI homicide and aggravated assault cases get a heightened mens rea standard. The answer is no. Going forward, the Commonwealth needs to prove the same Taylor-style malice in a fatal DUI case that it would prove in a shooting or beating case — a conscious disregard for an unjustified and extremely high risk of death or serious bodily injury.

That said, the decision should not be read as turning every DUI fatality into a third-degree murder case. The Court reaffirmed that the choice to drive while intoxicated, by itself, does not establish malice. The Court’s analysis of the facts, which included turning down a ride, breaking the garage gate, sustained reckless driving for nearly an hour, near-misses, ignoring 911-worthy warning signs from his own driving, and finally taking his eyes off the road at 113 miles per hour to look for his phone, is what carried the day. Those are the kinds of aggravating, sustained-recklessness facts that the Superior Court has long required for a malice finding in a DUI case under decisions like Commonwealth v. Kling. The result in a more typical impaired-driving fatality, without that level of additional aggravating conduct, may still come out the other way, as in Commonwealth v. Comer, where the impaired defendant’s car rubbed the curb and the accident immediately followed.

Practically, this means that in serious DUI cases, defense counsel needs to focus less on whether there was an explicit verbal “warning” or other formal notice, and more on whether the totality of the conduct really shows the kind of sustained, conscious disregard for risk that the Court found here. Charging decisions, plea negotiations, jury instructions, and sufficiency challenges in vehicular homicide cases will all be shaped by Peters going forward.