Philadelphia Criminal Defense Blog

Zak Goldstein 11/17/24 Zak Goldstein 11/17/24

PA Supreme Court: Unlawful Contact Conviction Requires Prior Communication, Not Just the Assault or Touching Itself

Criminal Defense Attorney Zak Goldstein — Zak T. Goldstein, Esquire - Philadelphia Criminal Defense Attorney

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Strunk, holding that unlawful contact cannot be proven solely through evidence that the defendant had some sort of illegal physical sexual contact with the alleged victim. Instead, the statute requires some kind of prior communication to facilitate a sex crime. This narrows the reach of the statute to more closely match the legislative intent behind it as the point of the statute is to prevent communications designed to facilitate illegal sex acts rather than to criminalize the actual assault itself given that other existing statutes criminalize the assault.

Recent cases from the Superior Court, however, had found that a violation of the statute could be proven without any evidence of any prior communication. That is no longer the case, but the actual illegal contact or sex act can still be prosecuted under the statute that covers the substantive contact. This reading of the statute by the Pennsylvania Supreme Court returns the statute to its original purpose and makes sure that people will not be prosecuted twice for the exact same conduct.

The Facts of Strunk

The defendant was convicted in the Dauphin County Court of Common Pleas following testimony from the complainant which detailed repeated sexual assaults occurring over a period when she lived in the same household. The complainant’s testimony described incidents where the defendant allegedly initiated physical contact while she pretended to be asleep. Despite the obviously illegality of the sexual acts themselves, the crux of the appeal centered on whether the defendant’s conduct met the statutory requirements for "unlawful contact with a minor" because there was no real evidence that the defendant said or did anything in advance to facilitate to assaults.

The complainant specifically testified to three instances of alleged sexual assault:

The defendant fondled the complainant while she slept on a couch and proceeded to sexually assault her. Afterward, he whispered something unintelligible to her, but there was no evidence of prior communication to facilitate the assault.
The defendant assaulted the complainant again while she was recuperating on the couch after dental surgery. She testified that she was heavily sedated and unable to respond. He digitally penetrated her during this assault, but the complainant testified that there was no verbal or nonverbal communication beforehand.
The defendant assaulted the complainant in her bedroom while she pretended to be asleep. This assault was interrupted by the victim’s mother, but again, the complainant testified that there was no communication between her and Strunk before or during the assault.

The complainant’s testimony was consistent in that she denied any verbal or nonverbal communication between her and the defendant that facilitated the actual assaults.

The Supreme Court Appeal

The Pennsylvania Supreme Court granted review on two issues:

Whether the evidence presented at trial was sufficient to support the defendant’s conviction for Unlawful Contact with a Minor under § 6318, given the lack of communication.
Whether the Pennsylvania Superior Court erred in interpreting § 6318 to allow physical contact beyond the sexual acts themselves to satisfy the statute's communication requirement.

The statute provides:

§ 6318. Unlawful contact with minor.
(a) Offense defined.--A person commits an offense if the person is intentionally in contact with a minor, or a law enforcement officer acting in the performance of duties who has assumed the identity of a minor or of another individual having direct contact with children, as defined under 23 Pa.C.S. § 6303(a) (relating to definitions), for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
(2) Open lewdness as defined in section 5901 (relating to open lewdness).
(3) Prostitution as defined in section 5902 (relating to prostitution and related offenses).
(4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).
(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).
(6) Sexual exploitation of children as defined in section 6320 (relating to sexual exploitation of children).
(b) Grading.--A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) for which the defendant contacted the minor; or
(2) a felony of the third degree; whichever is greater.

18 Pa.C.S. § 6318 criminalizes being “in contact with” a minor for purposes such as engaging in a prohibited sexual act. Historically, courts, including the Pennsylvania Superior Court, have interpreted this statute as focused on communication — either verbal, written, or non-verbal cues that facilitate the illegal conduct. The Superior Court, however, upheld the defendant’s conviction in this case even though he did not say anything, reasoning that non-communicative physical acts, such as manipulating clothing before the assault, were sufficient to fulfill the statute's requirements.

However, the Pennsylvania Supreme Court disagreed. The Court found that the statute was ambiguous, and therefore an analysis of what exactly it covers required looking at the legislative intent behind it. Further, the Court found that the legislative intent behind § 6318 focused on criminalizing communication aimed at facilitating sexual exploitation, rather than physical actions alone. The analysis delved into both statutory language and legislative history, concluding that while "contact" can imply physical touch in other contexts, its interpretation within § 6318 should remain tied to prior communication.

The Legislative and Judicial Context

The majority opinion highlighted that § 6318, as conceived, aimed to address the risks posed by communication—whether through digital means or in-person interactions—that predators might use to groom or manipulate minors. Legislative debates leading to the statute’s enactment emphasized combating "cyber enticers," reflecting an emphasis on communicative acts over physical ones. In other words, the Legislature clearly enacted the statute to criminalize the type of behavior at issue in shows like To Catch a Predator. The statute is designed to make it illegal to contact minors to set up illegal sexual encounters; it does not criminalize the illegal sexual encounter itself because other statutes already do that. The Court therefore held that the Superior Court erred by conflating physical contact with communicative efforts. The Pennsylvania Supreme Court emphasized that § 6318 is not designed to criminalize physical acts alone, as those are addressed by other statutes.

This interpretation aligns with some prior Superior Court rulings like Commonwealth v. Leatherby which required clear evidence of communication intended to facilitate sexual offenses. In this defendant’s case, however, the Court noted that although his actions were egregious, there was no evidence of verbal or non-verbal communication facilitating the assaults during the incidents in question. It is now clear that the statute is not violated by evidence of the illegal physical contact alone. Other statutes are violated, but the unlawful contact statute is not.

The Takeaway

The PA Supreme Court's decision to vacate the defendant’s conviction for unlawful contact did not affect his convictions for other sexual offenses, but it does not limit what had become an overly broad reach for this particular statute. If someone gropes a minor, then the appropriate charge for that is indecent assault. If someone communicates with a minor online or by text message to facilitate a groping, then the appropriate charge is unlawful contact even if the groping never happens. If the groping then happens, then the defendant could be charged with both unlawful contact and indecent assault. But it is now clear that unlawful contact may not be proven through evidence of the groping alone.

This is an important case because unlawful contact is a serious charge; it often carries more time in prison or more serious Megan’s Law requirements than the underlying sex offense. This opinion clarifies the scope of § 6318, reinforcing its focus on criminalizing communication intended to exploit minors rather than physical actions associated with sexual offenses. It underscores the need for clear evidence of communication to sustain a conviction under this statute.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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

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 10/25/24 Zak Goldstein 10/25/24

PA Supreme Court: After Samia, Commonwealth Still May Not Use Non-Testifying Co-Defendant’s Confession Against Defendant Where Confession Obviously Implicates Defendant Contextually

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

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jones, holding that even despite the United States Supreme Court’s limiting of Bruton in Samia v. United States, the Commonwealth still may not use a non-testifying co-defendant’s confession against the defendant where the co-defendant’s confession either directly refers to the defendant even if not by name or the jury learns that the co-defendant’s confession has been redacted. This case is extremely important because some courts have suggested that Bruton was effectively overruled by the 2023 Samia decision, but the Pennsylvania Supreme Court has now held that Bruton is still implicated even when the defendant’s actual name is removed from the co-defendant’s statement.

The Facts of Jones

On February 6, 2016, at about 3:30 a.m., Jones, co-defendant #1, and co-defendant #2 exited a Philadelphia SEPTA train and hailed a cab driven by the victim. Jones took the front seat and, after directing Destin on where to drive, unexpectedly pulled a gun and shot the victim in the head. Jones jumped out of the cab while co-defendant #1 also assaulted the victim. The victim managed to escape with gunshot injuries. The incident was captured on SEPTA surveillance cameras, and police subsequently identified the three through tips from the restaurant owner where Jones and co-defendant #1 worked. Prosecutors charged Jones with attempted murder, aggravated assault, and firearms violations.

The Co-Defendant’s Confession

The main issue in the case came from co-defendant #1’s confession to the police. In his confession, co-defendant #1 referred directly to Jones by name as the shooter. At trial, however, the prosecution redacted the statement to change any references to Jones by name to “my friend” so as to comply with the Bruton rule. The co-defendant described the events leading up to the cab shooting. He specifically detailed how he and “his friend” left their workplace at Jack’s Firehouse Restaurant, traveled together, and were ultimately identified in SEPTA surveillance footage. He further explained that “his friend,” wearing a gray jacket, was seated in the front passenger seat of the cab and was the shooter.

Jones’s defense attorney argued that even though the co-defendant’s confession was redacted to replace Jones’s name with “my friend,” the confession still unmistakably pointed to him. The Commonwealth, on the other hand, argued that the redactions were sufficient to meet Bruton’s requirements, especially in light of Samia’s more limited holding on whether a redacted confession which does nothing more than eliminate the defendant’s name solves any Sixth Amendment confrontation clause problems.

Ultimately, the issue involved in the use of a non-testifying co-defendant’s statement that implicates the defendant is that the defendant does not get the chance to cross-examine the non-testifying co-defendant. Accordingly, the use of such a confession, where it implicates the defendant, violates the Sixth Amendment’s right to confront one’s accusers. Courts have “solved” this problem by requiring the prosecution to redact these confessions and remove the defendant’s name. But the issue of whether redactions are sufficient where the statement still obviously refers to the defendant despite the redactions continues to come up.

The Supreme Court’s Analysis

The Pennsylvania Supreme Court found that the statement violated the Sixth Amendment because it was still painfully obvious that “my friend” was Jones. The ruling addressed two main questions: (1) whether the redactions sufficiently protected Jones’s Confrontation Clause rights, and (2) whether the use of contextual evidence rendered the redactions meaningless, thereby violating Bruton. The Court analyzed three prior United States Supreme Court cases in its opinion.

First, in Bruton v. United States, the United States Supreme Court held that the admission of a non-testifying codefendant's confession that implicates a defendant violates the defendant's Sixth Amendment rights if the codefendant does not testify. The rationale is that even with a limiting instruction, jurors may still use the confession against the defendant.

Second, in Gray v. Maryland the U.S. Supreme Court ruled that replacing a defendant’s name with an obvious blank or “deleted” was still a violation of Bruton as it creates an obvious reference to the defendant. Gray clarified that redactions must go beyond superficial omissions and avoid any obvious link to the defendant’s identity.

More recently, in Samia v. United States, the United States Supreme Court limited the protections of the Bruton rule. The 2023 Samia decision clarified that Bruton applies only to confessions that directly implicate the defendant. Samia held that if a confession uses neutral, non-identifiable language without directly naming or clearly pointing to the defendant, it is admissible, even if circumstantial evidence might suggest involvement. Samia does not really explain how much circumstantial or contextual evidence is too much such that even a redacted confession could violate the Sixth Amendment.

The Pennsylvania Supreme Court focused on the fact that co-defendant #1’s confession, despite using “my friend” instead of Jones’s name, contained unmistakable identifiers that rendered the redaction ineffective under Bruton.

First, the confession was read to the jury by a detective, who noted that co-defendant #1 and “his friend” worked at Jack’s Firehouse Restaurant and were seen together on SEPTA surveillance footage. The confession described specific, identifying details:

Workplace Identification: The co-defendant described how he and “his friend” worked at Jack’s Firehouse and left their shift together. The Commonwealth brought in a witness from the restaurant who testified that Jones and co-defendant worked together at that establishment, providing a direct link for jurors.
Clothing and Physical Identification: The confession referenced Jones as “my friend” in a grey jacket, which was visually corroborated by SEPTA still images shown to the jury before the confession was read. The images showed Jones in a grey jacket.
The Incident in the Cab: The co-defendant described his “friend” pulling out a gun and shooting the cab driver, offering a narrative that aligned closely with Jones’s alleged crime, making it painfully apparent who the “friend” was.
Repeated Reference to the Redacted Statement: The prosecutor emphasized that the statement being read was “redacted” or altered. This, the Court concluded, likely drew the jury’s attention to the identity being shielded, potentially inviting them to infer that Jones was “my friend.”

The Supreme Court’s Ruling

The Pennsylvania Supreme Court found that, taken together, these contextual clues allowed the jury to identify Jones as “my friend” in the co-defendant’s confession, thereby violating Bruton even under Samia’s narrower standard. The ruling highlights that:

Direct Implication via Redaction: The confession’s references to Jones's workplace, his visible presence in surveillance footage, and specific references to the “friend” in a grey jacket uniquely identified Jones. This violated Bruton’s protection against statements that “directly” implicate a defendant.
Indirect Inference Insufficient for Admissibility: Although Samia permitted some level of inference, the Court found that the co-defendant’s description was so detailed that it effectively negated the redaction. The Court rejected the idea that replacing “Jones” with “my friend” avoided a Confrontation Clause issue at least in part because the jury knew of the redaction, which could make them more likely to infer the protected identity.
Distinguishing from Samia: Unlike in Samia, where a neutral reference did not clearly identify the defendant, here, the “gray jacket” and “workplace” identifiers pointed directly to Jones. This direct identification required no “linkage” with external evidence; rather, it was an immediate inference the jury could make without additional information.

The Court remanded the case for the Superior Court to determine if this Bruton violation constituted a harmless error, leaving room for possible further appellate consideration.

This case is critically important as it recognizes that the Bruton rule still has some viability in Pennsylvania state court proceedings. Simply replacing a defendant’s name with some other term such as my friend or the other guy is not enough where the confession makes it completely obvious to whom the confession refers.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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

Zak Goldstein 10/19/24 Zak Goldstein 10/19/24

PA Superior Court: New Claim of Ineffective Assistance of PCRA Counsel Must Be Raised Before Superior Court Rules on PCRA Appeal

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Walter. In Walter, the Pennsylvania Superior Court addressed the issue of whether a PCRA petitioner could raise claims of ineffective assistance of PCRA appellate counsel after the denial of post-conviction relief had been affirmed. The court held that claims of PCRA appellate counsel’s ineffectiveness must be raised before the Superior Court panel rules on the merits of a PCRA appeal, not afterward. Specifically, the petitioner/appellant must raise any concerns after PCRA counsel files a brief but before the appellate court renders its decision.

Once the court has reached its decision, the petitioner may not raise new claims in an application for reargument or reconsideration. The court reasoned that once the appellant’s lawyer files the brief, the appellant will have the opportunity to see if any claims were omitted or not argued adequately. If the appellant believes they were, then the appellant could file something at that point. But once the Superior Court reaches its decision, the appellant may not then try to add claims. It may, however, still be possible to raise claims in federal court if the PCRA appeal is denied.

This case reinforces the principle that a petitioner cannot raise such claims for the first time in a petition for reconsideration or reargument after the appellate decision is made. Moreover, the court declined a request for a remand to hold a Grazier hearing, as the request came too late in the appellate process and would serve no legitimate purpose. The petitioner is not entitled to new counsel after both the PCRA court and the Superior Court have found no merit in the claims of ineffectiveness.

The issue in this case arises from the Supreme Court’s decision in Commonwealth v. Bradley. There, the Pennsylvania Supreme Court held that a PCRA petitioner could raise new claims of ineffective assistance of PCRA counsel for the first time on appeal to the Superior Court. Prior to that, the PCRA petitioner would not be able to raise claims that PCRA counsel provided the ineffective assistance of counsel once the case reached the appellate stage. Instead, the PCRA petitioner would have to try to raise the claims during the 21 day window provided after a court issues a Rule 907 notice of intent to dismiss.

For PCRA practitioners and defendants, this case highlights the importance of raising any claims of PCRA counsel’s or PCRA appellate counsel’s ineffectiveness as soon as possible. Failing to do so before the appellate decision will preclude the petitioner from revisiting those claims in subsequent petitions, meaning that if you want to do long, you will not be able to able to raise those claims. However, if you believe that your PCRA attorney or PCRA appellate attorney provided the ineffective assistance of counsel, it may be possible to retain new counsel and raise new claims or seek remand to the Court of Common Pleas to raise the claims if you do it quickly enough.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 10/8/24 Zak Goldstein 10/8/24

Attorney Goldstein Wins New Trial For Client Who Served 18 Years for Wrongful Attempted Murder Conviction

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently won a new trial for a client who served 18 years for a wrongful conviction for attempted murder. In 2006, the client, R.C., was arrested and charged along with three others for participating in shooting at an alleged rival from the neighborhood. The shots missed and struck a young child, seriously injuring him. R.C. and his co-defendants were charged with various counts of attempted murder and firearms offenses. The entire case depended on the testimony of one eyewitness who repeatedly told significantly different versions of the events. All four defendants proceeded by way of jury trial, and the jury convicted three of them. One of the four was acquitted by the Philadelphia jury.

About eight years later, one of the co-defendants filed and litigated a successful Post-Conviction Relief Act Petition alleging that his trial lawyer provided the ineffective assistance of counsel in failing to adequately prove that he could not have done the shooting because he was on video at the Gallery at the time of the shooting. The trial lawyer had introduced some of the video evidence at trial, but the trial lawyer had not obtained phone location data and receipts which further corroborated that that co-defendant could not have been there because he was in fact shopping miles away during the incident. The trial judge was eventually required by the Superior Court to grant that defendant a new trial, and the Commonwealth elected not to proceed with re-trying him.

Unfortunately, the co-defendant’s successful alibi exoneration did not result in any relief for R.C. or the other co-defendant who remains in custody. Fortunately, re-investigation of the case led to two leads in R.C.’s attempt to obtain justice. First, a review of the police file revealed the existence of a handwritten note which showed that police had five suspects from the beginning rather than the four that the sole eyewitness testified to. Further, the handwritten note actually had writing on it which suggested that R.C. never even fired a gun. This note was never provided to the defense. Second, the main eyewitness agreed to speak with an investigator, and she recanted her testimony. She ultimately said that she suspected R.C. may have been out there and part of the shooting because the fourth shooter wore all black, which R.C. was known to do, and had a similar build, but she was not sure that she had actually seen his face. Instead, she asserted that her husband had convinced her to say that it was R.C. who did the shooting even though she was not 100% sure that he was involved.

Armed with this new evidence, Attorney Goldstein filed a Post-Conviction Relief Act Petition alleging that the Commonwealth committed a Brady violation by failing to disclose the note to the defense and that the recantation qualified as after discovered evidence which required a new trial. The PCRA court conducted a full day evidentiary hearing to hear from various witnesses from the defense and the Commonwealth. The judge found the recanting witness credible and after 18 years, finally granted R.C. a new trial.