PA Superior Court Upholds Dismissal of Case Where Prosecutor Intimidated Defense Witness

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Byrd, upholding the trial court’s decision to dismiss serious criminal charges due to prosecutorial misconduct. Specifically, in Byrd, the trial court found that the assigned Assistant District Attorney intentionally intimidated a potential defense witness and pressured her not to come to court. The Superior Court agreed and found that the prosecutorial misconduct required the dismissal of the charges under the Double Jeopardy Clauses of both the United States and Pennsylvania constitutions.

Commonwealth v. Byrd

The defendant was charged with multiple drug, firearm, and sexual assault offenses in Allegheny County, PA. As a result of multiple suppression motions that the defendant filed on his behalf and which were on appeal with the Superior Court, only the charge of Persons Not to Possess a Firearm Charge (VUFA 6105) went to trial. The defendant demanded a jury trial and chose to represent himself, but he did have stand by counsel assisting him. The trial began on November 28, 2018. In the middle of the trial, the judge received a voice mail from a woman who had been set to testify as a character witness for the defendant in which the woman claimed that the assigned ADA intimidated her out of testifying.

The judge held a hearing outside the presence of the jury and played the voice mail. In this message, the witness stated that she had been threatened by the ADA. She stated that she was scared to the point where she did not want to participate in the trial. She further stated that the ADA told her that the defendant “is the most dangerous man that he has ever met or ever seen” and asked if she knew “how or why he was in jail up in Ohio.” The prosecutor also went into specific detail about the prior charges against the defendant. Finally, the prosecutor brought up personal details about the witness. He informed her that he was aware of her financial hardship, a recent break-up, and that “he knows a lot more about me than he should.” According to her, this phone call “freak[ed] [her] out,” and  she was scared of retaliation by the District Attorney’s Office and police. She was concerned that she or her family members could be charged with a crime that they did not commit. At the end of the hearing, the judge declared a mistrial because of the ADA’s actions.

The trial court then held hearings on February 13, 2017 and March 20, 2017 to determine whether the case against the defendant should be dismissed with prejudice. At the hearing, the ADA testified. On direct examination, he testified that he obtained personal information about the witness from listening to the phone calls from the defendant. He further stated that the purpose of the call was to see whether the defendant’s prior convictions would affect her opinion of the defendant. He denied that he was trying to intimidate her.

On cross-examination, he admitted that he told the witness that the defendant was one of the most dangerous people that he had ever met. He also admitted that he knew personal details about the witness from listening to the defendant’s prison phone calls. After these hearings, the trial court dismissed the charge with prejudice. The trial court then banned the prosecutor from ever litigating in her courtroom again and called him “sneaky.” The Commonwealth appealed.

In its appeal, the Commonwealth did not dispute that a mistrial should have been granted in the defendant’s case. The Commonwealth only appealed the finding of prosecutorial misconduct that resulted in the trial court dismissing the charges and preventing retrial because of double jeopardy. Specifically, the Commonwealth argued that the trial court failed to discern the distinction between prosecutorial error, which would not require the dismissal of the charges, and prosecutorial overreach, which would.  

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. If the defendant is acquitted of a crime, then the government cannot try him again. However, an acquittal is not the only way to trigger the Double Jeopardy Clauses. It is also important to note that a state court conviction or acquittal may not prevent the federal government from prosecuting the defendant on federal charges.

Can Prosecutorial Misconduct Trigger Double Jeopardy Protections?

Yes. If a prosecutor engages in certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial. Pennsylvania’s Constitution provides broader protections for criminal defendants than the U.S. Constitution. Consequently, Article I § 10 of the Pennsylvania Constitution bars retrial not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. It is important to note that that an error by a prosecutor does not necessarily deprive the defendant of a fair trial. However, where the prosecutor’s conduct changes from mere error to intentionally subverting the court process, then a fair trial is denied and the charges must be dismissed.

It is important to emphasize that an inadvertent mistake by a prosecutor can be remedied by a mistrial and subsequent re-trial. It is only the more egregious actions by prosecutors that will result in the court dismissing the case with prejudice. As the Pennsylvania Superior Court stated in a previous decision that addressed this issue “intentional prosecutorial misconduct…raises systematic concerns beyond a specific individual’s right to a fair trial that are left unaddressed by retrial.”

The Superior Court’s Decision

The Pennsylvania Superior Court affirmed the trial court’s dismissal of the charges against the defendant. Two judges voted in favor of affirming the order, and one judge dissented. The Court agreed that the ADA intentionally intimidated the witness to prevent her from testifying with the intent of depriving the defendant of a fair trial. Specifically, the Superior Court was deeply troubled by the prosecutor’s conduct in informing the witness of personal details of her life and that he editorialized about the defendant’s dangerous propensity. The Superior Court found that the prosecutors statements placed the witness in fear for her own safety and for that of her family. Thus, according to the Superior Court, the prosecutor’s actions were intended to deprive the defendant of a fair trial. His acts triggered double jeopardy protections, and the case against the defendant was properly discharged.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Theft, Rape, and Attempted 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.

PA Supreme Court: Philly Prosecutors Can't Try You Separately For DUI and Related Traffic Violations

Philadelphia DUI Defense Attorney Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Perfetto, holding that Philadelphia prosecutors may not file more serious misdemeanor or felony charges against a defendant who has already been tried in traffic court for summary offenses arising from the same incident. This means that if you were arrested by the police, charged with DUI, and also received traffic tickets like a ticket for reckless driving and the traffic case has been resolved, you cannot be prosecuted for the DUI. This happens frequently in Philadelphia because traffic court cases go to trial much more quickly than criminal trials. Although this may seem like a loophole to some, it is actually a question of fundamental fairness as prosecutors simply should not be allowed to charge a defendant in multiple different courts for the same conduct. Doing so requires the defendant to take off multiple days from work, pay more in attorney’s fees, and potentially receive separate sentences for the same incident. This is an extremely significant decision because it could result in the dismissal of numerous cases.

The facts of Commonwealth v. Perfetto

On July 3, 2014, the defendant was operating a motor vehicle in Philadelphia. The police stopped him and issued him a citation because he was driving without his lights on as required by 75 Pa. C.S.A. § 4302. The officer then determined that the defendant was also driving under the influence of a controlled substance. In addition to issuing the traffic tickets, they subsequently arrested him and charged him with DUI. In Philadelphia, when someone is issued a traffic citation and charged with a more serious criminal offense at the same time, the cases are not usually joined together. Instead, defendants have traditionally had to resolve the traffic citations in traffic court and the criminal case in the Philadelphia Municipal Court.

Prior to the resolution of the criminal charges, the defendant was found guilty, in absentia, on the summary traffic offense in the traffic court. The traffic court is a division of the Philadelphia Municipal Court. After his conviction, the defendant had a preliminary hearing for his DUI charges and he was held for court on all charges. In Philadelphia, if a defendant is charged with a felony, he will have a preliminary hearing in Municipal Court. If the court determines there is enough evidence for a case to go to trial, then the defendant will be held for court, and the case will be transferred to the Court of Common Pleas.

Motion to Dismiss Under Rule 110

At his trial, the defendant filed a motion to dismiss the DUI charge against him because he had already been found guilty of the traffic offense. His defense attorney argued that 18 Pa. C.S.A. § 110 ( “Rule 110”) prohibits subsequent prosecutions that arise from the same criminal episode when the defendant has previously been convicted in the same court. Thus, he argued that because the defendant was found guilty in Municipal Court - Traffic Division for his traffic offense, and his traffic offense was part of the same incident as his alleged DUI, the Municipal Court - Criminal Division should dismiss the DUI case.

The trial court heard oral arguments on the defendant’s motion. The Commonwealth argued that Rule 110 should not apply because summary traffic offenses must be tried in the traffic division of the Philadelphia Municipal Court. Further, because the traffic division lacked the jurisdiction to hear the DUI charge, the two charges could not be tried at the same time. In other words, the Commonwealth argued that for all intents and purposes, the traffic division is a separate court and thus Rule 110 did not apply to the defendant’s case and his motion should be denied. At the conclusion of the arguments, the trial court agreed with the defendant and dismissed the DUI charges against him.

The Commonwealth’s Appeal to the Superior Court

The Commonwealth filed a notice of appeal to the Pennsylvania Superior Court. On appeal, a divided en banc panel of the Pennsylvania Superior Court reversed the trial court’s decision. The Superior Court engaged in a complex and convoluted jurisdictional analysis of Philadelphia’s Municipal Court and held that defendants who are charged with a traffic offense in Philadelphia must have the traffic offenses tried in the traffic division of the Municipal Court, regardless of whether the defendant is also charged with non-traffic offenses. Thus, according to the Superior Court, Rule 110 did not apply when a defendant was previously convicted or acquitted of a traffic offense. The defendant filed a petition for allowance of appeal to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court accepted the appeal.

What is Rule 110?

 Rule 110 is the codified version of the Pennsylvania Supreme Court’s decision in Commonwealth v. Campana. The Campana Court held that the Double Jeopardy clause requires the Commonwealth to bring all known charges arising from a single criminal episode against a defendant in one proceeding. The Pennsylvania legislature wrote this into law in Rule 110.

How do you win a Rule 110 motion?

In order to win a Rule 110 motion and obtain the dismissal of charges based on the existence of a prior prosecution, the defendant must be able to show four things. The defense must show:

First, the former prosecution resulted in an acquittal or a conviction.

Second, the current prosecution was based on the same criminal conduct or arose from the same criminal episode as the former prosecution.

Third, the prosecution was aware of all the charges when the former prosecution commenced.

Finally, all of the charges were within the same jurisdictional district.

If all of these requirements are met then the Commonwealth is prohibited from prosecuting the defendant.

The Commonwealth Cannot Prosecute You Twice If You’ve Already Been Convicted of Summary Offenses From The Same incident

In a divided opinion, the Pennsylvania Supreme Court overturned the Superior Court’s decision. The majority opinion found that this was a straightforward case of statutory interpretation and that the language of Rule 110 is clear and unambiguous. The Court found that all four elements of Rule 110 were met. Specifically, the defendant was found guilty for driving without lights, his DUI case arose out of the same episode as his driving without lights conviction, the prosecutor was aware of this conviction, and finally, his traffic conviction occurred in the same judicial district as his DUI case. Because all of the elements of Rule 110 were met, the Commonwealth was barred from prosecuting the defendant’s DUI case due to the prior traffic case.

Additionally, the majority opinion found that there was no rule that prohibited the Commonwealth from prosecuting the defendant’s traffic offense with his DUI charge. The Commonwealth’s argument that traffic cases must be prosecuted in the traffic division of Municipal Court was not accurate because the Commonwealth had the option of trying the defendant for the summary traffic citations in the criminal case. The majority opinion also reiterated that a summary offense can trigger Double Jeopardy protections, even though the consequences are usually less severe than those of a misdemeanor or a felony. Finally, the majority opinion acknowledged that this will cause problems for the Philadelphia District Attorney’s Office, but nonetheless the Commonwealth is still precluded from prosecuting the defendant’s case due to Rule 110 and the Double Jeopardy Clause of the Pennsylvania Constitution. .

Facing criminal charges? We can help.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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 other successful results in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, 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.