PA Supreme Court Rejects Joint Acquisition and Use Defense to Drug Delivery Resulting in Death

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided Commonwealth v. Cassell and Commonwealth v. Scott, Nos. 22 and 23 MAP 2025 (Pa. Oct. 13, 2026), holding that two people who buy drugs together and use them together have no defense to the delivery element of possession with intent to deliver or drug delivery resulting in death. The Commonwealth does not have to disprove joint acquisition and use, and the defendant is not entitled to a jury instruction on it. Under the Court’s reading of the Drug Act, a drug user who chips in money or drives a friend to the dealer has delivered the drugs. If the friend dies, the drug user faces up to 40 years in prison.

The Facts of Cassell and Scott

A. Smith left a drug rehabilitation facility in Lancaster with no money and no phone. She texted Cassell, her boyfriend, and asked for a ride to York. Cassell paid for an Uber to bring her to York, texted a dealer that he had $40, and drove to the dealer’s house. He and Smith used together twice, and Cassell told police that he let her take as much as she wanted. Smith overdosed, and Cassell did not call 911 until about an hour after she stopped breathing. A York County jury convicted him of third-degree murder, drug delivery resulting in death, PWID, and related charges, and the court sentenced him to 23.5 to 47 years in prison.

In the second case, M. Wandell and her friend Z. Savage planned to buy heroin from Wandell’s dealer, and Savage put up the money. When Wandell could not reach the dealer, the dealer’s son, defendant Scott, answered and said he could help if they picked him up. Savage drove the three of them to Harrisburg, where Scott took the money from Wandell, handed it to a dealer, and came back with fentanyl. The three went to a park and used. Savage passed out and died the next morning in the back seat of his car. The jury acquitted Scott of third-degree murder but convicted him of drug delivery resulting in death and PWID. He received 9 to 18 years.

Both defendants asked for a jury instruction that people who jointly acquire drugs for their shared personal use do not deliver drugs to each other, relying on United States v. Semler, 858 F. App’x 533 (3d Cir. 2021), and United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977). Both trial judges refused, and the Superior Court affirmed. The Supreme Court granted allocatur and accepted the case for review.

The Supreme Court’s Ruling

The Supreme Court affirmed, rejecting the proposed defenses that they could not be guilty of drug delivery resulting in death (homicide) because they had purchased and consumed drugs together. The Drug Act defines delivery as “the actual, constructive, or attempted transfer from one person to another of a controlled substance … whether or not there is an agency relationship.” 35 P.S. § 780-102. Because the definition covers constructive transfers, the Court read it to reach anyone who helps the deal happen:

However, the Court also suggested in a broad opinion that individual also may constructively deliver drugs to another when they intentionally facilitate the sale — in other words, as the Swiderski Court stated, they serve “as a link in the chain of distribution.” This “link” may be providing the funds for the drugs, or the transportation to the dealer. Without these actions, the transaction cannot occur. That language is largely dicta, however, and may not be binding on future cases. There could also be causation issues with that type of analysis which were not addressed in this opinion.

The Court also relied on Section 780-113(a)(31), which makes the distribution of a small amount of marijuana not for sale a misdemeanor with a 30-day maximum. In the Court’s view, the General Assembly knew how to protect co-users and chose to protect only marijuana users:

The fact the General Assembly limited this exception to possession of a small amount of marijuana speaks volumes. It could have crafted a lesser penalty for those who share (or co-use) other controlled substances, such as heroin or fentanyl, but it did not.

The Court admitted that the defense “makes sense” and that some believe dealers deserve harsher punishment than users. It then held that “this type of policy determination is for the General Assembly, not the courts.”

The Court found the evidence sufficient in both cases. Cassell paid for Smith’s ride, contacted the dealer, paid for the drugs, and controlled how much she took. Scott was never part of the plan between Wandell and Savage; he was a go-between who got the drugs from his dealer and handed them to Wandell, who was acting as Savage’s agent.

The Takeaway

This is a terrible decision for anyone charged after a friend’s overdose. Prosecutors rarely find the dealer in these cases. They charge the person who was in the room, usually another addict who drove, made the call, or put in a few dollars. The Court has now held that each of those acts is a delivery. The Second and Third Circuits drew a line between traffickers and users under a federal definition of delivery nearly identical to Pennsylvania’s. The Superior Court had leaned towards accepting that potential defense, as well, in a prior unpublished case. The Pennsylvania Supreme Court refused to draw it and told defendants to ask the legislature, which is unlikely to make any changes.

The facts still matter. The Court rested its sufficiency analysis on Cassell’s control of the drugs and Scott’s role as the go-between, and it quoted the California rule that the partner who takes the more active role in financing and arranging the buy may be guilty of furnishing to the less active one. A case where two people put in the same money and bought the drugs together remains open as a sufficiency argument, even without a jury instruction, and defense counsel should build that record. Cassell’s murder conviction also carries a lesson. The trial court told the jury it could infer malice from his failure to seek medical care, not from the delivery itself. Calling 911 is the one choice that can still change the outcome, both in terms of avoiding a murder charge and getting crushed at sentencing should a defendant be convicted.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Goldstein Mehta LLC Criminal Defense

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.

PA Superior Court: Post-Sentence Motion Nunc Pro Tunc Must Be Filed Within 10 Days of the Order Granting Permission

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Wirfel, 2026 PA Super 224, holding that once a trial court grants a defendant permission to file a post-sentence motion nunc pro tunc, the defendant has ten days from that order to file the motion. If the motion never gets filed, the order does nothing for the appeal deadline, and the notice of appeal is still due thirty days after sentencing. The Court also rejected a vindictiveness challenge to a sentence that the trial judge increased after the defendant sent a threatening letter to a prosecutor.

The Facts

In Wirfel, a York County jury convicted the defendant of possession with intent to deliver cocaine and simple possession. On July 21, 2025, the trial judge sentenced him to two to four years in state prison on the PWID and no further penalty on the possession. The judge did not tell him anything about his right to file a post-sentence motion or an appeal, or how long he had to do either.

Shortly after sentencing, the chief deputy prosecutor in the York County District Attorney’s Office received a letter from the defendant. According to the trial court’s description, he called her “a miserable pig of a woman” and “Ms. Piggy,” told her he had a private investigator watching her, and made a point of saying he knew she had a daughter and what kind of car she drove. He also wrote, “I will go to war with each and every one of you.”

Procedural History

The Commonwealth moved to modify the sentence under Rule 721, which gives the prosecution ten days after sentencing to ask the judge to reconsider. At a hearing on August 19, 2025, the defendant admitted writing the letter and told the judge, “I was just frustrated, honestly.” The judge called the letter “a veiled threat,” granted the motion, and resentenced him to three to six years. For the second time, the judge did not advise him of his post-sentence and appeal rights.

After the court appointed counsel, the defendant asked for permission to file a post-sentence motion nunc pro tunc because the judge had never advised him of his rights. On September 16, 2025, still within thirty days of the amended sentence, the trial court granted that request under 42 Pa.C.S. § 5505. The order did not say when the motion had to be filed. Counsel then decided not to file a post-sentence motion. Instead, she filed a notice of appeal on October 16, 2025, which was thirty days after the order granting permission but fifty-eight days after the resentencing.

The Superior Court’s Decision

The Court took up jurisdiction first. Nothing in the Rules of Criminal Procedure says how long a defendant has to file a post-sentence motion once a trial court grants leave to file one nunc pro tunc. The Court answered that question with two of its earlier cases. Commonwealth v. Dreves, 839 A.2d 1122 (Pa. Super. 2003) (en banc), treats a post-sentence motion filed with the trial court’s express permission under Section 5505 as if it had been filed within the original ten days. Commonwealth v. Wright, 846 A.2d 730 (Pa. Super. 2004), gives a defendant whose appeal rights are restored nunc pro tunc the same thirty days he would have had at the start. Putting the two together, the Court held that an order granting nunc pro tunc relief “winds back” the clock to the day of sentencing, and the Rule 720 deadlines then run from the order. That means ten days to file the post-sentence motion and thirty days from the ruling on that motion to appeal.

The problem for Wirfel was that he never filed the motion. Quoting Dreves, the Court explained that “the time for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely post-sentence motion.” With no motion on file, his appeal deadline stayed at thirty days from August 19, and the October 16 notice of appeal missed it by about a month.

The Court heard the appeal anyway. Under Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007), when a sentencing judge fails to advise the defendant of his post-sentence and appeal rights, that is a breakdown in the court system, and an appellate court can excuse a late appeal because of it. This judge skipped the colloquy at both sentencings. The Court said it was “troubled” by that and treated the appeal as timely.

On the merits, the Court affirmed. In Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022), the Pennsylvania Supreme Court explained how the presumption of vindictiveness from North Carolina v. Pearce works. When a judge imposes a harsher sentence the second time around and does not say on the record that the increase rests on objective information about something the defendant did after the first sentencing, the increase is presumed vindictive. But if there is objective evidence of a post-sentencing event that likely gave the judge new information about the defendant’s character and prospects for rehabilitation, the presumption does not apply, and the defendant has to prove that the judge actually acted out of vindictiveness. The Superior Court found that the letter was that kind of event. It came after the July sentencing, the defendant admitted writing it, and the trial court reasonably read it as a threat. His explanation that he was frustrated did not meet his burden.

The Court also vacated the no further penalty sentence on the simple possession count on its own. That count merged into the PWID because both rested on the same cocaine, and under Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020), a sentence of no further penalty on a merged count is an illegal sentence.

The Takeaway

The ten-day holding is the part of Wirfel that will likely come up again. Until now, there was no clear answer on when a post-sentence motion had to be filed after a trial court grants nunc pro tunc relief under Section 5505. The answer is ten days from the order. Previously, that was just an assumption. If the plan is to skip the motion and appeal directly, the thirty days still run from the sentence. Wirfel was still able to appeal only because the trial judge twice failed to give him the required colloquy. Most defendants will not have that excuse.

The vindictiveness ruling is a warning for anyone who has just been sentenced. The Commonwealth has ten days to ask the judge for more time, and the Pearce presumption will not help a defendant who hands the judge a new reason during that window. Wirfel’s letter cost him a year on the minimum and two years on the maximum. If you are angry about your sentence, it is better to tell your lawyer than write to the prosecutor.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Goldstein Mehta LLC Criminal Defense

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.

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

Criminal Defense Lawyer Zak T. Goldstein, Esquire

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

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

The Facts

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

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

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

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

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

The Sixth Amendment Right to a Public Trial

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

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

The Court Finds Two Sixth Amendment Violations

Applying that framework, the Third Circuit identified two violations.

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

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

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

Why the Convictions Were Affirmed

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

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

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

The Takeaway

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

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

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

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If you or a loved one are facing criminal charges, serving a state or federal sentence, or considering a direct appeal, post-conviction petition, or federal habeas petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Supreme Court: Prosecutorial Misconduct to Call a Witness the Prosecution Knows Will Refuse to Testify

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Belgrave, No. 31 WAP 2024 (Pa. March 26, 2026), holding that it is prosecutorial misconduct to call a witness to testify before a jury when the prosecution knows in advance that the witness intends to refuse to answer questions. The Court reversed the Superior Court’s decision, vacated the defendant’s judgment of sentence, and remanded for a new trial. The opinion was authored by Justice Wecht and joined by every member of the Court.

The Facts of Commonwealth v. Belgrave

The Court summarized the facts as follows: the charges in this case arose from a drug sale at a Marriott Hotel in Erie, Pennsylvania, on February 7, 2019, that ended in a gunfight. Four men, including the defendant, drove from Chicago to Erie and rented a hotel room. Hotel surveillance video showed that Belgrave and his associate, Charles Baizar, were parked in a Chevrolet Impala when a dark-colored SUV arrived in the parking lot. Baizar and another man walked toward the SUV, and when Baizar attempted to enter it, the SUV’s driver exited the vehicle and began shooting. Baizar ran, dropping a package. Belgrave exited the Impala and fired two shots in the direction of the SUV. Belgrave was shot and seriously injured.

Police stopped the Impala as it was leaving a nearby parking garage. The package that Baizar dropped during the gunfight contained 239 grams of heroin. Baizar was separately charged with conspiracy to commit PWID and pleaded guilty to conspiracy in December 2019. Belgrave was charged with conspiracy to commit PWID (amended on the eve of trial to PWID), aggravated assault, and other offenses. A jury convicted Belgrave of PWID, reckless endangerment, and carrying a firearm without a license.

The Prosecutorial Misconduct Issue

The central issue in this appeal was the prosecution’s decision to call Baizar to the witness stand at Belgrave’s trial despite knowing in advance that Baizar would refuse to answer any questions. Belgrave’s defense counsel identified this problem early, filing a motion in limine on the eve of trial. The concern was well-founded: Baizar had filed his own Motion to Quash Subpoena the day before Belgrave’s trial began, stating clearly that he had no intention of testifying and intended to invoke his Fifth Amendment right against self-incrimination.

The Commonwealth sought to compel Baizar’s testimony by offering him immunity. But even with immunity, which eliminated any valid Fifth Amendment basis for refusing to testify, Baizar still refused to testify and was subject to contempt sanctions. Despite all of this, the prosecutor went ahead and called Baizar to the stand in front of the jury.

What followed was remarkable. In his opening statement, the prosecutor told the jury to look forward to Baizar’s testimony while simultaneously revealing that Baizar did not want to cooperate. When Baizar took the stand, he refused to answer every substantive question. But the prosecutor pressed on, asking eighteen predominantly leading questions that were loaded with accusations. The prosecutor asserted that Baizar was Belgrave’s cousin, that they came to Erie to sell heroin together, that Baizar had made prior statements to police about the incident, and that Baizar was refusing to testify because he wanted to protect Belgrave. Baizar answered none of the questions. The prosecutor essentially became the de facto testifying witness, putting allegations before the jury in the form of unanswered questions.

The trial court gave a limiting instruction telling the jury that questions are not evidence and that only answers may be considered. But the Supreme Court found this wholly insufficient to cure the prejudice. In closing arguments, the prosecutor doubled down, telling the jury that Baizar knew what happened, knew who was involved, and refused to say anything. He implored the jury to infer facts from an interaction that consisted entirely of unanswered questions.

The Supreme Court’s Analysis

The Supreme Court engaged in a thorough review of its prior case law governing this issue, beginning with the 1973 cases of Commonwealth v. Terenda, 301 A.2d 625 (Pa. 1973), and Commonwealth v. DuVal, 307 A.2d 229 (Pa. 1973). In Terenda, the Court found it was prejudicial error for the prosecution to call co-indictees to the stand knowing they would invoke the Fifth Amendment. In DuVal, the Court held that summoning a witness with foreknowledge that the witness would invoke the privilege against self-incrimination constitutes prejudicial error in itself, regardless of whether the prosecutor believed the privilege claim would be legally invalid. The DuVal Court explained that the proper procedure is for the prosecution to test the witness’s willingness to testify in advance, outside the jury’s presence, and obtain a ruling before bringing the witness before the jury.

The Superior Court had distinguished Terenda and DuVal on a narrow basis: in those cases, the witnesses expressly invoked the Fifth Amendment in front of the jury, while Baizar simply refused to answer without specifically mentioning the Fifth Amendment. The Superior Court relied on the separate case of Commonwealth v. Todaro, 569 A.2d 333 (Pa. 1990), where this Court found no error when a witness quietly informed the court of his intent to invoke the Fifth Amendment, was excused before the jury, and never appeared again.

The Supreme Court found the analogy to Todaro deeply flawed. In Todaro, the prosecutor did not have advance notice that the witness would refuse to testify, the witness was quickly excused, and no accusatory questions were asked before the jury. In Belgrave, by contrast, everyone knew Baizar would not answer, the prosecutor called him anyway, and then peppered him with leading, accusatory questions designed to plant inculpatory information in the jurors’ minds through the questions themselves.

The Court also rejected the Superior Court’s reasoning that the absence of an express Fifth Amendment invocation before the jury somehow made Baizar’s defiant silence less prejudicial. The Court found that this distinction defied common sense, observing that the prejudicial harm lies in the refusal to deny accusations, which a reasonable juror can treat as an implied admission, and that this harm exists regardless of whether the witness cites a specific legal basis for the refusal.

The Court further held that the error was not harmless beyond a reasonable doubt. The prosecution’s extensive efforts to obtain Baizar’s testimony, including securing immunity directly from the District Attorney, demonstrated how critical the prosecution considered Baizar’s testimony to be. The prosecutor’s repeated emphasis on Baizar’s knowledge and silence, in both opening and closing statements, confirmed this.

The Takeaway

Commonwealth v. Belgrave is a significant decision for criminal defendants in Pennsylvania. It reaffirms and strengthens the rule from DuVal that prosecutors may not call witnesses they know will refuse to answer questions before a jury. The Court made clear that it is the act of summoning the witness, not what happens after the witness takes the stand, that constitutes the misconduct. And it rejected the artificial distinction between an express invocation of the Fifth Amendment and a simple refusal to answer, holding that the prejudice to the defendant is the same either way.

The decision also underscores the obligation of trial courts to resolve these issues before a witness ever appears in front of the jury. As the Court emphasized, citing DuVal and Commonwealth v. Davenport, 308 A.2d 85 (Pa. 1973), the proper procedure is a pre-appearance hearing to assess the witness’s willingness to testify and determine whether the witness’s appearance before the jury would serve any legitimate purpose.

This is a unanimous decision, with all seven justices joining Justice Wecht’s opinion, which gives it particular force as precedent. If you or someone you know is facing criminal charges and believes that the prosecution engaged in misconduct at trial, it is critical to consult with an experienced criminal defense attorney who can evaluate whether the issue warrants appellate relief or a new trial.

Facing Criminal Charges or a Wrongful Conviction?

Criminal Defense Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or believe that the prosecution engaged in misconduct in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. 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 experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.