Philadelphia Criminal Defense Blog
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.
Pennsylvania Superior Court Affirms Suppression of Cell Phone Evidence in Drug Case Because Police Looked at Phone Screen Without Warrant
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Carter, holding that the trial court properly suppressed a cell phone where the police looked at the cell phone’s screen during the execution of a search warrant for drugs without getting a warrant to look at the cell phone itself.
The Facts of the Case
The defendant was under investigation by the Lycoming County Narcotics Enforcement Unit (“LCNEU”) for alleged crack cocaine sales. The officers allegedly conducted several controlled buys in June, July, and November 2023. The controlled buys involved using confidential informants to purchase drugs near the defendant’s residence in Williamsport, PA. Based on the information obtained from these controlled buys, the officers obtained search warrants for his home.
During the execution of one of the search warrants, the officers claimed that they saw the defendant’s cell phone screen light up. It apparently displayed a partial text message from a woman allegedly involved in some of the drug deals. An officer photographed the message and later used it to obtain another warrant to seize and search the phone itself. The initial warrant did not authorize searching or seizing the phone. The defendant was then charged with drug delivery offenses such as possession with the intent to deliver.
The Motion to Suppress
The defense attorney filed a motion to suppress the cell phone evidence, arguing that police conducted an unlawful search by looking at and photographing the phone’s screen without first obtaining a search warrant. The trial court agreed, finding that even a “small” intrusion into a cell phone, such as reading a text message notification, counts as a search under both Pennsylvania and U.S. Supreme Court law.
The court also doubted the police explanation, suggesting that the officers were not totally credible. The court was skeptical that the phone screen “lit up on its own” to reveal a six-hour-old message, concluding it was more likely that officers manipulated the phone given the age of the message. Because the phone evidence was unlawfully obtained in that police likely manipulated the phone before obtaining a warrant, the court ruled that the evidence from the phone was “fruit of the poisonous tree” and had to be suppressed. The Commonwealth appealed.
The Superior Court’s Ruling
On appeal, the Commonwealth argued that simply observing the phone screen fell within the “plain view” exception to the warrant requirement. The police had the right to be in the house based on the first warrant, so there was no reason they could not look at the phone given that the phone was in plain view. The Superior Court rejected this argument. Relying on Riley v. California and Commonwealth v. Fulton, the court reaffirmed that cell phones are constitutionally protected spaces. Even minimal intrusions, like reading a text message, require a warrant.
The Superior Court also concluded that the trial court acted within its authority to question the credibility of the assertions contained in the affidavit and concluded that the “plain view” doctrine did not apply. As a result, the Court affirmed the suppression of the defendant’s phone and all evidence derived from it.
The Takeaway
This decision highlights how strongly Pennsylvania courts protect privacy interests in cell phones. Police cannot sidestep the warrant requirement by claiming that a text message or notification appeared in plain view. If officers want to read or use information from a phone, they must get a warrant.
For defendants, this ruling is a reminder that evidence obtained through unconstitutional searches may be excluded, which may significantly weaken the prosecution’s case. For anyone facing drug charges in Pennsylvania, especially cases involving phones, texts, or social media, it is critical to have a defense lawyer who understands the latest case law and knows how to fight unlawful searches.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Goldstein Mehta LLC Defense Attorneys
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: Shining Flashlight Into Small Opening of Shoebox Violates Plain View Doctrine
Pennsylvania Superior Court Reverses Conviction Based on Warrantless Shoebox Search
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
In Commonwealth v. Herlth, 2025 PA Super 73, the Pennsylvania Superior Court reversed a drug conviction after concluding that a warrantless search of a shoebox violated the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. The ruling serves as a clear reaffirmation of privacy rights in closed containers within the home—even during police responses to medical emergencies.
The Facts of Herlth
The case arose out of an incident which occurred on August 31, 2020, when Pennsylvania State Police responded to a report of a drug overdose at a residence in Red Lion, Pennsylvania. EMS personnel were already inside administering care to the defendant when a state police trooper entered the house. The trooper was not there to provide medical assistance, but he wanted to ensure the safety of the EMS responders and “see what [the patient] overdosed on to possibly make an investigation further, anything that’s in plain view that we can see.”
While standing in a small living room near the defendant’s feet, the trooper noticed a closed shoebox next to the defendant’s leg. He then shined his flashlight into a manufacturer’s hole in the box and saw what appeared to be “scramble” capsules which were commonly used to package fentanyl and other drugs. Believing that the defendant had overdosed on these capsules, the trooper opened the box and seized a bag containing 117 capsules.
The defendant was arrested and charged with possession with the intent to deliver. He filed a motion to suppress the evidence, arguing that the trooper conducted an illegal warrantless search of his house and the shoebox. The trial court denied the motion to suppress and allowed the introduction of the evidence at trial. The court reasoned that the drugs were in plain view because the trooper was able to find them without actually opening the shoebox even though the trooper could not see them without using his flashlight. The court found the defendant guilty of PWID and sentenced him to seven to fourteen years’ incarceration. He appealed.
The Legal Issue: Was the Search Justified by the Plain View Doctrine?
On appeal, the defendant challenged the warrantless search and seizure, arguing that the use of a flashlight to examine the interior of a closed shoebox exceeded the scope of any permissible exception to the warrant requirement.
The Superior Court agreed. The Court explained the three essential requirements for the plain view doctrine to apply:
The officer must lawfully be in the vantage point from which the object is viewed;
The incriminating nature of the object must be immediately apparent (i.e., there must be probable cause);
The officer must have lawful access to the object.
While the Court acknowledged that the defendant lawfully entered the home under the “community caretaking” doctrine to ensure EMS safety, it held that the Commonwealth failed to satisfy the other two prongs of the test.
Specifically, the shoebox was a closed, opaque container, not an item whose incriminating character was immediately apparent. There was no way for the trooper to observe the contents without manipulating the container by shining a flashlight into a manufacturer’s hole—an investigative act which itself constituted a search.
Reliance on Key Precedent
The Court drew heavily on Commonwealth v. Graham, 721 A.2d 1075 (Pa. 1998), and Commonwealth v. Norris, 446 A.2d 246 (Pa. 1982). In both cases, the Pennsylvania courts held that police may not use the plain view doctrine to justify extending a search into containers or concealed areas unless the object is already visible and the officer has lawful access.
In Graham, for example, the officer shined a flashlight into the defendant’s pocket after a Terry frisk had concluded, ultimately discovering contraband. The Supreme Court found that flashlight use in that context transformed an otherwise valid frisk into an unlawful search. Likewise, in Norris, officers were justified in seizing a knife on a nightstand but were not permitted to search under a mattress for a hidden firearm after the emergency had ended.
Why the Flashlight Made the Search Unlawful
Although courts have upheld flashlight use when illuminating objects that would otherwise be visible during the day, that principle did not apply here. The Superior Court emphasized that the scramble pills inside the shoebox were not in plain view; even in full daylight, they would have remained hidden inside the closed box. The use of a flashlight to peer into the hole was not passive illumination—it was a directed, investigative act taken without a warrant or exigent justification.
Outcome
The Superior Court reversed the denial of suppression, vacated the judgment of sentence, and remanded the case for further proceedings. One judge dissented, so the Commonwealth may file for review by the entire court.
Key Takeaways
The case underscores the robust privacy protections for closed containers inside a residence.
Police officers responding to overdoses or other emergencies must avoid converting caretaking roles into investigative searches unless they obtain a warrant or meet one of the narrow exceptions.
The plain view doctrine does not permit flashlight-aided searches of opaque containers without probable cause and lawful access.
This decision reinforces a critical constitutional limit on police authority and serves as a cautionary tale: even in good-faith responses to public health emergencies, law enforcement must respect established privacy rights.
Facing criminal charges or appealing a criminal case in Pennsylvania?
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.
Smith v. Arizona: United States Supreme Court Holds Expert May Not Testify to Absent Lab Analyst’s Testing Results if Analyst Unavailable
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Supreme Court of the United States has decided the case of Smith v. Arizona. In Smith, the Court held that when an expert conveys an absent lab analyst’s statements to support their opinion, and those statements must be true in order for the opinion to be accurate, the statements are admitted as evidence for their truth. If the statements are also testimonial, then their admission is barred by the Confrontation Clause. However, the Court did not decide whether the statements in this case were definitively testimonial, instead remanding that issue to the state court for further consideration.
The Facts in Smith v. Arizona
In December 2019, law enforcement officers in Yuma County, Arizona, arrested Jason Smith inside a shed during the execution of a search warrant. The officers discovered a large quantity of suspected drugs and drug-related items, leading to Smith being charged with multiple drug offenses, including possession of methamphetamine, marijuana, and cannabis for sale, and possession of drug paraphernalia. Smith pleaded not guilty, and the case proceeded to trial.
During trial preparations, the State sent the seized items to the Department of Public Safety's crime lab for analysis, identifying Smith as the suspect and providing details of his charges. Analyst Elizabeth Rast conducted the tests and documented her findings in detailed notes and a signed report. Her report concluded that the items contained usable quantities of methamphetamine, marijuana, and cannabis.
Initially, the State intended for Rast to testify at Smith’s trial. However, Rast left the lab before the trial for unspecified reasons. Instead, the State called Greggory Longoni as a substitute expert to testify based on Rast’s records, although Longoni did not conduct any independent testing. Longoni’s testimony, which relied on Rast’s records, led to Smith’s conviction.
Smith appealed, arguing that Longoni’s testimony violated his Confrontation Clause rights because he was unable to cross-examine Rast, whose statements formed the basis of Longoni’s opinion. The Arizona State Court of Appeals affirmed Smith’s conviction, reasoning that an expert could testify to the substance of a non-testifying expert’s analysis if it formed the basis of their opinion.
Supreme Court's Analysis
The Supreme Court rejected the Arizona Court of Appeals' reasoning, focusing on whether Rast’s statements were introduced for their truth. The Court stated that if Rast’s statements were used to establish that the events documented in her report actually occurred, then they were admitted for their truth. Furthermore, the Court assumed that since the testing and records were made for evidentiary purposes, Rast’s statements were testimonial.
The Court emphasized that if an expert’s testimony conveys an out-of-court statement to support their opinion, and the statement supports the opinion only if true, then the statement is admitted for its truth. The inability to cross-examine the analyst themselves on the reliability of the testing and the expert’s reliance on that underlying testing leaves the jury with an unchallenged assumption of truth and the defense with no opportunity to challenge that assumption. This is exactly what the Confrontation Clause forbids.
The Takeaway
Goldstein Mehta LLC Criminal Lawyers
This is an important decision. Under prior precedent, the prosecution had been able to use substitute experts to testify to what other expert witnesses did. That procedure, however, leaves the defense completely unable to challenge the credibility of the actual people who did the testing. This decision reinforces the defendant's right to confront and cross-examine witnesses against them, ensuring the integrity and fairness of the judicial process.
Facing criminal charges or appealing a criminal case?
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.