PA Superior Court: Commonwealth May Amend Bills of Information to Include New Victim on Day of Trial Unless Defendant Shows Prejudice

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Jackson, holding that the trial court properly permitted the prosecution to amend the Bills of Information to include new victims on the morning of trial because the defendant was on notice of those victims and failed to show any prejudice due to the amendment.

The Facts of Jackson

In Jackson, the defendant was charged with Terroristic Threats (M1) in Philadelphia for allegedly threatening various co-workers at his federal job. The defendant had a number of telephone conversations and left a number of voice mails in which he used racial slurs, threatened co-workers, and said other generally distasteful and unsettling things. The majority of these phone calls, however, involved making these threats towards other co-workers to a specific co-worker with whom he was more friendly. He did not really, however, threaten the one co-worker to whom he made the majority of his comments.

Can the Commonwealth Amend the Bills of Information on the Day of Trial?

Prior to trial, the Commonwealth filed Bills of Information. The Bills of Information generally identify the charges which a defendant will face as well as the name of the victim, the date on which the crime allegedly occurred, and the gradation of the charges. The Commonwealth may later move to amend the Bills of Information, but if the Commonwealth has failed to prove the charges as identified in the Bills by the end of the trial, then the court should find insufficient evidence to convict a defendant. In this case, the original Bills of Information listed only the co-worker who he did not really threaten as the victim. Instead, the defendant had made a number of threatening remarks about other co-workers to that co-worker. Realizing this error, the Commonwealth moved to amend the Bills of Information on the day of the bench trial.

The defense attorney objected to the Commonwealth’s motion to amend the Bills, but the trial court permitted the amendment. The defendant then proceeded by way of bench trial and was found guilty of one count of Terroristic Threats. He was subsequently sentenced to three years of reporting probation, and he appealed to the Pennsylvania Superior Court. 

The Superior Court Appeal

On appeal, the Superior Court affirmed the conviction. The defendant raised the issue of whether the trial court improperly permitted the Commonwealth to amend the Bills of Information on the day of trial, but the Superior Court rejected this argument.

First, the Court reasoned that the majority of the defendant’s argument had been waived by the defendant’s failure to make specific objections on the day of trial and by the defense attorney’s sloppy drafting of the Statement of Errors. Further, the Court concluded that even if the arguments were not waived, they should be rejected.

The Court reasoned that under Pa.R.Crim.P. 564:

The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

The purpose of the rule is to make sure that the defendant knows what he is charged with and does not have to devise a new defense on the day of trial. In deciding whether to grant an amendment, a court should consider the following factors as to whether the defendant was prejudiced:

1. Whether the amendment changes the factual scenario,

2. Whether new facts, previously unknown to the defendant were added,

3. Whether the description of the charges changed,

4. Whether the amendment necessitated a change in defense strategy,

5. And whether the timing of the request for the amendment allowed for ample notice and preparation by the defendant.

Here, the Court court concluded that the defendant failed to show any prejudice which would have justified denying the motion to amend the Bills of Information. The alleged victims were clearly identified at the preliminary hearing and in the pre-trial discovery provided by the Commonwealth, and the complaint also put the defendant on notice of the threats with which he was charged. Therefore, amending the bills to add the additional co-workers did not prejudice the defendant as he already knew what he was charged with doing. The Court denied the appeal, and it found sufficient evidence to uphold the defendant’s conviction for Terroristic Threats.

 Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers

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. 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.

United States v. Gamble: US Supreme Court Declines To Provide State/Federal Double Jeopardy Protections

Philadelphia Criminal Defense Lawyer Zak Goldstein

The United States Supreme Court has decided the case of Gamble v. United States. This decision upholds the concept of dual sovereignty which, for purposes of criminal law, allows both the federal government and a state government to prosecute a defendant for the exact same crime. It therefore remains the law that a criminal defendant cannot claim the protections of double jeopardy if he or she was already prosecuted at the state level if the federal government is unhappy with the result and decides to file charges.

Gamble v. United States

In November 2015, a police officer in Mobile, Alabama pulled the defendant over for a damaged headlight. When the officer approached the defendant, he smelled marijuana. The officer searched Gamble’s car, and he found a loaded 9mm handgun. The defendant had previously been convicted of second-degree robbery, and thus he was prohibited from possessing a firearm. At his trial, the defendant pleaded guilty to a charge of violating Alabama’s felon-in-possession-of-a-firearm statute.

After his plea, federal prosecutors then indicted him for the same instance of possession under federal law. The defendant then filed a motion to dismiss, arguing that the federal indictment was for the same offense as the one at issue in his state conviction and violated his double jeopardy rights as provided by the Fifth Amendment to the United States Constitution. The Federal District Court denied his motion, invoking the dual-sovereignty doctrine. The defendant then pleaded guilty to the federal offense, but appealed on double jeopardy grounds. The Eleventh Circuit Court of Appeals affirmed the decision. The defendant then filed a writ of certiorari to the United States Supreme Court, and the justices agreed to hear the case.

What is Double Jeopardy?

The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same criminal episode. The basic premise behind the Double Jeopardy Clause is that the government only gets one opportunity to convict a defendant, as such if the defendant is acquitted of a crime then the government cannot continue putting him on trial until they secure a conviction. A conviction also triggers Double Jeopardy protection which is what the defendant in Gamble argued before the United States Supreme Court.

What is The Dual-Sovereignty Doctrine?

The Dual-Sovereignty Doctrine is the idea that more than one sovereign (for example a state government and the federal government) may prosecute an individual without violating the prohibition against double jeopardy if the individual’s act breaks the laws of each sovereignty. Further, the Supreme Court has held that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. As such, a citizen owes a separate and independent allegiance to each sovereign government and must abide by their respective laws. This doctrine is sometimes often referred to as an exception to the Double Jeopardy Clause of the Fifth Amendment. However, as Justice Alito points out in Gamble, that this is “not an exception at all” because the text of the Fifth Amendment prohibits a subsequent prosecution for an “offense,” not an act.  

The Supreme Court’s Decision

In a 7-2 ruling, the United States Supreme Court declined to overturn previous precedent upholding the Dual-Sovereignty Doctrine. In its opinion, the Supreme Court focused on how Double Jeopardy Bars subsequent prosecutions for offenses and not acts. Double Jeopardy protects individuals from being in jeopardy “for the same offense.” The Court then analyzed previous decisions which all consistently held that an offense is something that is defined by law and that each law is defined by a sovereign aka government. Therefore, because the U.S. Constitution did not do away with the sovereignty of the states, states are free to make their own laws as well. Consequently, both the federal government and the states could have similar interests in preventing specific evils and thus could have identical laws (i.e. prohibiting persons who have certain convictions from possessing a gun). Therefore, a person can be convicted in both federal and state court for the exact same conduct.

The Court provided a number of hypotheticals to support its ruling that the defendant’s argument should fail. For example, the Court gave the hypothetical of what if a US citizen was killed in a different country (which is a federal offense) and that country prosecuted the murderer and convicted him. Per the Court, if it were to apply jeopardy to acts and not just offenses, then arguably the United States Government would be precluded from prosecuting the murderer because he had already been prosecuted by a foreign government. Per the Court, this is not what the founding fathers intended when they ratified the Fifth Amendment. Accordingly, the defendant will not get relief, and he will be forced to serve both his state sentence and his federal sentence.  

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

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 state and federal courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and First-Degree Murder. 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.

Can I be tried for the same crime in state and federal court?

Double Jeopardy Protections

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

— The Sixth Amendment to the United States Constitution

Double jeopardy is an issue that frequently comes up when a defendant commits a crime in multiple jurisdictions such as different states, different counties, or the state and federal system. The issue often arises either when the defendant’s conduct violates both state and federal law or when the crime takes place in multiple states. Most people have a general idea of what double jeopardy is, but many are surprised to learn that United States Constitution’s double jeopardy protections are much weaker than one might think. In general, double jeopardy is the idea that a defendant may not be tried twice for the same case. If the defendant has already been convicted or acquitted, then the defendant should not be tried again for the same crime in the same court.

A Defendant Who Is Acquitted Cannot Be Tried Twice In The Same Jurisdiction

This rule holds true in both Pennsylvania and federal courts to the extent that a defendant who is acquitted in a Pennsylvania court may not be tried again in a Pennsylvania court and a defendant who is acquitted in a federal court generally may not be tried again in a federal court. However, the law becomes much more complicated when the issue is whether a defendant may face charges in both Pennsylvania and federal court or Pennsylvania and another state.  

The Federal Government May Prosecute Despite a State Court Conviction or Acquittal

Federal law provides very weak protections against a defendant facing charges in both state and federal court for the same conduct. In the federal system, it is possible for the federal government to bring criminal charges against a defendant who has already been convicted of a state crime for the same conduct. The Department of Justice has guidelines which discourage prosecutors from bringing charges against a defendant who has already faced charges in the state system, but there is no absolute ban on the federal government’s ability to do so. Further, federal prosecutors in Philadelphia have recently begun to routinely disregard those guidelines due to political disagreements between the United States Attorney’s Office for the Eastern District of Pennsylvania and the Philadelphia District Attorney’s Office as to how harshly certain defendants should be punished upon conviction. Federal prosecutions of defendants who have previously faced charges in the state system are now increasingly common.

Therefore, a defendant who has been acquitted of charges in the Pennsylvania courts could be charged with and tried in the federal system despite the fact that the defendant already won the case in Pennsylvania. This is because of the idea that the state and the federal government are “dual sovereigns.” This means that under federal law, both the United States and state government may both prosecute you for a crime without violating the constitutional protection against double jeopardy if your act violated both state laws and federal statute.

Recently, it appeared that the United States Supreme Court was considering limiting the ability of federal prosecutors to bring charges following a state prosecution. The Court granted certiorari in the case of Gamble v. United States to determine whether the “dual sovereign doctrine” should apply. Unfortunately, the Court has now decided the Gamble case, and the Court voted 7-2 to uphold the concept of dual sovereignty which, for purposes of criminal law, allows both the federal government and a state government to prosecute a defendant for the exact same crime.

Following Gamble, the law remains such that a defendant cannot successfully claim a double jeopardy violation if he or she was acquitted or even convicted of a crime at the state level and the federal government subsequently decides to prosecute the case. This case drew a great deal of attention because of the benefit it could have provided to famous criminal defendant Paul Manafort, President Trump’s former campaign manager, who was convicted in federal court for various offenses. At the time of the decision, there was widespread speculation that President Trump could pardon Mr. Manafort for his federal crimes and he would then be able to move to dismiss pending charges brought by New York State. Because of Gamble, however, defendants like Mr. Manafort cannot be protected from a subsequent state prosecution by a federal pardon.

Pennsylvania Prosecutors Often May Not Bring Charges After A Federal Conviction or Acquittal

Pennsylvania law provides much stronger protections against being tried twice for the same conduct than federal law. A recent case from the Superior Court, Commonwealth v. Gross, illustrates the protections available to a defendant under Pennsylvania law when the defendant has already been tried in federal court. In Gross, the defendant was charged in Pennsylvania with conspiracy to commit unlawful possession of a firearm, firearms not to be carried without a license, possession of firearm prohibited, and lending or giving of firearms prohibited. While the charges were pending, Gross was indicted and pleaded guilty in the federal system for making false statements to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A).4. Specifically, the federal government alleged that Gross knowingly lied to a licensed firearms dealer about her current residence when completing ATF Form 4473 in connection with the purchase of a firearm by stating that she resided in Pennsylvania when she actually resided in New Jersey.

After Gross pleaded guilty in federal court, she moved to dismiss the Pennsylvania charges on double jeopardy grounds. The trial court denied the motion to dismiss, and Gross appealed. In most cases, a criminal defendant may not appeal the denial of a pre-trial motion before the trial has taken place. However, double jeopardy motions provide a rare instance in which the defendant may take an interlocutory appeal following the denial of a pre-trial motion so long as the trial court does not find that the interlocutory appeal would be frivolous.  

The Superior Court reversed the trial court’s denial of the motion to dismiss on double jeopardy grounds because Pennsylvania provides relatively strong protections against being retried for the same offense following a federal or out-of-state conviction or acquittal. The Superior Court noted that Section 111 of the Pennsylvania Crimes Code governs the issue and provides:

When conduct constitutes an offense within the concurrent jurisdiction of this Commonwealth and of the United States or another state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this Commonwealth under the following circumstances: (1) The first prosecution resulted in an acquittal or a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is based on the same conduct unless: (i) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil.

Pennsylvania May Not Prosecute if the State and Federal Statutes Were Intended to Prevent the Same Harm or Evil

In Gross, the trial court and Commonwealth agreed that Gross had been charged for the same conduct and that the first prosecution had resulted in a conviction. Further, the federal statutes and state statutes clearly had different elements which prosecutors would be required to prove. Therefore, the issue was whether the laws defining each of the offenses were intended to prevent a substantially different harm or evil.

The Superior Court took a fairly broad view in defining the harm or evil which the laws were meant to prevent. The Superior Court found that the purpose of the federal statute prohibiting false statements in connection with the purchase of a firearm was not limited to preventing fraud in connection with the purchase of a firearm from a licensed dealer. Instead, the statute also had the purpose of curbing crime by keeping firearms out of the hands of people who were not entitled to possess them. Thus, the purpose of the federal statute was not only to prevent fraud; it was also to reduce gun violence and violent crime in general.

Likewise, the purpose of the Pennsylvania statutes was to regulate the possession and distribution of firearms, which are highly dangerous and are frequently used in the commission of crimes. Therefore, the Superior Court found that both the federal and state statutes under which Gross was prosecuted were designed to vindicate substantially the same interests, i.e., the protection of the public by prohibiting the transfer of certain firearms to various categories of individuals. Because the Commonwealth failed to show that Pennsylvania had a substantially different interest, the Superior Court barred state prosecutors from bringing charges against Gross for the same conduct for which she had already been convicted in federal court.  

Pennsylvania Provides Greater Double Jeopardy Protections Than Federal Law

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

As Gross illustrates, Pennsylvania law provides greater double jeopardy protections than federal law. Further, these critical distinctions between state and federal law show that criminal law is complicated and that there may be defenses in cases which a non-criminal lawyer could miss. If you are facing criminal charges, it is critical that you hire a criminal defense attorney who focuses his or her practice on criminal law and stays on top of new developments in the law. If you are facing criminal charges in Pennsylvania or New Jersey, call 267-225-2545 for a free 15-minute criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.

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PA Superior Court: Improper Exclusion of Defendant's Family Members from Jury Selection Requires New Trial

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Jordan, holding that the trial court erred in refusing to permit the defendant’s family members to be present in the courtroom during selection. Because the trial court did not have sufficient reason to believe that the defendant’s family members were involved in any witness intimidation, the trial court violated the defendant’s right to a public trial by barring the family members from the courtroom. Therefore, the defendant will receive a new trial.

The Facts of Commonwealth v. Jordan

In Jordan, the defendant was arrested and charged with Conspiracy, Attempted Murder, and other related charges for an incident which took place in Philadelphia. The defendant chose to proceed by way of jury trial, and he was eventually convicted by the jury and sentenced to 37.5 - 100 years’ incarceration. Although the defendant appealed on the sufficiency of the evidence, the Superior Court rejected this portion of the appeal.

More interestingly, however, the defendant also appealed the trial court’s order barring his family members from remaining in the courtroom during voir dire (jury selection). During jury selection, the defense attorney specifically objected to the defendant’s family being excluded from jury selection. He argued on the record that they did not cause any problems the previous day and that jury selection is part of the trial, and the law requires that criminal trials be public.

After the defense lawyer objected, the judge stated that on the previous day, a large group of people barreled into the courtroom in an intimidating manner. The judge did not know who they were, but she somehow knew that they were there on behalf of the defendants. The judge further stated that witnesses voiced their concerns about their safety. In previous cases, the judge had had problems with jurors feeling intimidated, and so the judge decided to bar everyone, including the defendant’s family, from watching jury selection.

In response, defense counsel argued that the defendant’s mother was in her mid-50’s and his step-father was in his mid-60’s and that they had not been a part of whatever problem had occurred the day before. Therefore, he requested that they be allowed to stay in the courtroom. The court denied the request and prohibited the defendant’s mother and step-father from remaining in the courtroom during jury selection.

The Right to a Public Trial

Following his conviction, the defendant appealed. In addition to arguing that the evidence was insufficient to support the conviction, he also argued that the judge violated his Sixth Amendment right by barring his family members from the courtroom during jury selection. Under the Sixth Amendment, a defendant has a right to a public trial. The right is for the benefit of the accused and ensures “that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” In previous cases, the United States Supreme Court has held that the right to a public trial includes the right to have the public attend voir dire and view the jury selection.

Can the Judge Close the Courtroom to the Public in a Criminal Case?

Although the general rule is that a criminal trial should be public, the trial judge may close the courtroom under limited circumstances. In order to close a courtroom, the judge must properly find that:

1) there is an overriding interest that is likely to be prejudiced,

2) the closure is no broader than necessary to protect that interest,

3) there are no reasonable alternatives to closure, and

4) the court can make findings adequate to support the closure.

If these four requirements are not met, then the judge may not close the courtroom and must allow members of the public to view all portions of a criminal trial, including jury selection.

Nonetheless, the Pennsylvania Supreme Court has held that “where trial courts perceive a threat to the orderly administration of justice in their courtrooms by an unmanageable public, they may always place reasonable restrictions on access to the courtroom, so long as the basic guarantees of fairness are preserved.” This means that a trial judge may be able to close a courtroom in response to legitimate security or intimidation concerns. However, even when overriding interests warrant closure, if the parties or the press petition the court to admit a limited number of specified individuals, the court must consider the request and place on the record the reasons for denying the request. This enables the appellate court to examine whether exclusion was justified.

In this case, the Superior Court rejected the trial court’s reasoning and found that the court failed to follow the above rules. Although the court may have been justified in barring large groups from the courtroom during jury selection due to intimidation concerns, the court failed to give any real consideration to whether allowing just the defendant’s parents to remain in the room would alleviate the intimidation concerns.

An exclusion of the general public does not necessarily warrant the same treatment as the exclusion of the defendant’s close family members or the press. Therefore, if the mother and father had participated in the previous day’s disturbance, the trial court may have been justified in excluding them. However, the judge did not make any findings as to whether the defendant’s mother and stepfather had done anything. Instead, the court unreasonably failed to consider whether permitting just them to remain would be a reasonable alternative to barring everyone from the room.

Improper Denial of the Right to a Public Trial Requires a New Trial

In most cases, a defendant who appeals a legal error made by the trial judge will not receive a new trial unless the defendant suffered some kind of prejudice as a result of the legal error. This means that the Commonwealth usually has the right to argue harmless error, which is the idea that a conviction may be upheld if the Commonwealth can show beyond a reasonable doubt that even without the mistake, the defendant would have still been convicted.

However, there are certain types of errors that automatically require a new trial without a consideration of prejudice. This type of error is called a “structural error” or “structural defect.” The violation of the right to a public trial constitutes a structural error that will always invalidate the conviction. In this case, the defendant’s family members were excluded from the courtroom in violation of his right to a public trial without any real consideration of whether that was absolutely necessary to avoid witness intimidation. Therefore, the court committed a structural error, and the defendant will receive a new trial.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or are 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 won cases involving charges such as Conspiracy, DUI, Aggravated Assault, Rape, Possession with the Intent to Deliver, and Homicide. 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.