Philadelphia Criminal Defense Blog

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

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 10/19/24 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 10/3/24 Zak Goldstein 10/3/24

PA Supreme Court: Sentencing Court May Not Consider Arrests That Did Not Result in Conviction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Berry, overturning a long line of Superior Court precedent and holding that a sentencing court may not consider a defendant’s bare record of arrests at sentencing without any evidence of the underlying criminal conduct. Previously, a sentencing court could consider the defendant’s arrest record even where the arrests did not result in convictions so long as the sentencing court recognized the difference between an arrest and a conviction. The Supreme Court has now rejected that proposition and conclusively ruled that mere arrests are meaningless without a conviction or real proof of the underlying criminal conduct behind the arrest.

The Facts of Berry

In Berry, the defendant was convicted of the sexual abuse of two young family members. Specifically, he was found guilty of sexually assaulting his intellectually disabled younger brother, J.B., on two occasions, coercing him into non-consensual sexual acts, and coercing his seven-year-old great-nephew, J.J., into sexual contact. The trial court sentenced the defendant to an aggregate term of seven-and-a-half to fifteen years, which represented an upward departure from the range recommended by the Pennsylvania Sentencing Guidelines.

The Issue on Appeal

The key issue at sentencing was the trial court's consideration of the defendant’s prior arrest record. He had no prior convictions or juvenile adjudications, but he had been arrested several times. The trial judge explicitly considered these arrests, referring to them as “previous other contacts” and suggesting that they negated the defendant’s prior record score of zero. This led at least in part to a significant increase in the length of the defendant’s sentence above the guideline range.

The defendant challenged this above-guideline sentence, arguing that the sentencing court improperly relied on unproven arrests as an aggravating factor. He asserted the consideration of these arrests violated both Pennsylvania law and his due process rights under the Fourteenth Amendment to the United States Constitution.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court ruled that considering a defendant’s arrest record violates Pennsylvania law because arrests, without proof of a conviction or that the defendant committed underlying criminal conduct, are completely irrelevant and do not give the sentencing judge any reliable information as to whether the defendant actually committed a crime.

The Supreme Court recognized a number of key points:

First, the Court reiterated that an arrest, without a resulting conviction, does not equate to a finding of guilt. Arrests occur under circumstances that do not necessarily reflect criminal conduct, and they can happen to both the innocent and the guilty. Consequently, they are not a reliable indicator of a defendant's character or propensity for future crimes.

Second, under Pennsylvania law, the Sentencing Guidelines do not permit the use of arrest records in calculating a defendant's prior record score or as an independent factor in determining an appropriate sentence. Prior record scores must be based on actual convictions or adjudications, not on mere arrests.

Third, the Court noted that prior decisions from both Pennsylvania and federal appellate courts such as the Third Circuit Court of Appeals have consistently held that arrest records are not admissible as evidence in various phases of criminal proceedings because they are not probative. The Court explicitly overruled a series of Pennsylvania Superior Court cases that had allowed the use of prior arrests in sentencing even where the judge did not equate them with convictions.

Finally, the Court highlighted concerns about the potential racial and socioeconomic biases inherent in arrest records. Studies show that arrests may often reflect disparities in police practices rather than actual criminal behavior, which further undercuts their reliability as a sentencing factor.

The Pennsylvania Supreme Court therefore held that the sentencing court committed an error of law in considering the defendant’s arrest record as an aggravating factor. This reliance on irrelevant and unreliable information improperly influenced the sentence; the sentencing judge specifically said so. Therefore, the Court reversed the Superior Court's decision and remanded the case for resentencing. It ordered that the sentencing judge not consider arrests at the re-sentencing without real proof of the underlying conduct.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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

Zak Goldstein 9/28/24 Zak Goldstein 9/28/24

PA Supreme Court Finds No Right to Bail in First Degree Murder Cases

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Yard, finding that a defendant does not have the right to bail in a first-degree murder case no matter how weak the case.

The Facts of Yard

In Yard, the defendant was charged with first-degree murder after the August 2021 death of his infant son. The child suffered fatal blunt-force trauma while under the defendant’s care. Adding to the suspicion, the child also had broken ribs from weeks prior to his death. In April 2022, Yard was formally charged with multiple offenses, including first-degree murder, aggravated assault, and endangering the welfare of children. A Magisterial District Judge conducted a preliminary arraignment and held Yard in jail without bail pending trial.

Yard filed a motion for bail to be set. He argued that under the Supreme Court’s prior case of Commonwealth v. Talley, he was entitled to bail even though he was charged with first-degree murder. In Talley, the Supreme Court held that for bail to be denied based on dangerousness, the Commonwealth must essentially prove that it has a strong case. Yard argued that the Commonwealth’s case was not strong. He conceded that there was enough evidence for a lesser charge, such as involuntary manslaughter, but argued that the evidence did not support the specific intent necessary for a first-degree murder charge, which carries a potential life sentence.

During a bail hearing in May 2022, the Commonwealth presented evidence, including an autopsy report and the testimony of two forensic pathologists, supporting their case against Yard. The trial court agreed with Yard and set bail at $200,000 with non-monetary conditions. The Commonwealth moved for a stay and appealed. The Superior Court granted the stay and asked the trial court to explain why it granted bail.

In response, the trial court admitted that its decision relied on stipulated facts and not live testimony. Talley generally requires the Commonwealth to present some real evidence at the bail hearing in order to have a defendant held without bail, so the trial court held a new bail hearing. Yard also moved for nominal bail because he had been held for six months prior to trial in violation of Pa.R.Crim.P. 600(b). The trial court granted his motion and set bail at $1.

The Impact of Talley

In Commonwealth v. Talley, the Pennsylvania Supreme Court emphasized that defendants generally should not be held without bail based on potential dangerousness without real evidence. The Court recognized three specific exceptions to the right to bail:

Capital Offenses - When the accused is charged with an offense for which the death penalty is a potential sentence, the accused is not entitled to bail.
Life Imprisonment Offenses - When the accused is charged with an offense punishable by life imprisonment, the accused is not entitled to bail.
Dangerousness Exception - When no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person or the community, the defendant is not entitled ot bail.

The crux of Talley was the interpretation of the "proof is evident or presumption great" standard, which required an evidentiary threshold somewhere between probable cause and proof beyond a reasonable doubt. The Court concluded that this standard applied specifically to the dangerousness exception, placing a significant burden on the Commonwealth to justify bail denial by showing that it was substantially more likely than not that the accused posed an imminent threat and that no conditions of release could mitigate that threat.

The Talley decision emphasized that bail courts must engage in both a qualitative and quantitative assessment of the evidence to evaluate whether an individual’s release would endanger public safety. Importantly, the Court highlighted that the burden of both production and persuasion fall on the Commonwealth and that the Commonwealth may not simply rely on hearsay and assert that the case is serious and the defendant is dangerous. Instead, before holding someone without bail, a trial court must hold a real hearing and receive actual evidence of dangerousness and on how strong the Commonwealth’s case is.

The Issue in Yard

In Yard, the issue was whether Talley’s requirement that the Commonwealth prove dangerousness and introduce real evidence at a bail hearing also applies in a first-degree murder case given that a conviction for first-degree murder requires at least a sentence of life without parole. Yard argued that Talley applied, while the Commonwealth argued that it did not.

The Pennsylvania Supreme Court rejected the argument. It found that the "proof is evident or presumption great" standard only applies to the dangerousness exception and not to cases involving capital offenses or offenses carrying a maximum sentence of life imprisonment. This means that for offenses like first-degree murder, which are punishable by life imprisonment, bail can be categorically denied without the need for the extensive evidentiary showing that would be required when the Commonwealth argues for the dangerousness exception. Accordingly, although Talley seemed to suggest that bail may be available even in first-degree murder cases, the state Supreme Court has now held that defendants charged with first-degree murder may not be released on bail.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Attorney Zak T. Goldstein, Esquire