Philadelphia Criminal Defense Blog

Zak Goldstein 12/11/22 Zak Goldstein 12/11/22

PA Superior Court: Prosecution May Cross Examine Defendant on Prior Arrests if Defendant Opens the Door

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bullock, holding that where the defendant testifies in an unprompted manner that they’ve never been arrested before, the prosecution may then introduce evidence of prior arrests as impeachment evidence. Although there is a general rule that a defendant may not be cross examined on prior criminal convictions, that rule gives way to false testimony by the defendant which makes the prior convictions admissible impeachment evidence.

The Facts of Bullock

In 2018, the defendant’s children found the defendant passed out on the porch of their home. The children called the police. The police came to the scene, and they found the defendant stumbling, going in and out of consciousness, and smelling of PCP. The police arrested the defendant.

The children were placed with their grandparents. They then disclosed that the defendant, their mother, had allegedly been abusing them. The Commonwealth charged her with aggravated assault, strangulation, unlawful restraint, false imprisonment, and three counts of endangering the welfare of a child.

The Criminal Trial

The defendant proceeded by way of bench trial. The trial court found her guilty of the endangering the welfare of a child counts, but it acquitted her of everything else. The court sentenced her to time served to 23 months’ incarceration followed by a year of probation. She filed timely post-sentence motions. The court denied those motions, and she appealed to the Pennsylvania Superior Court.

The Issue on Appeal

At trial, the Commonwealth introduced evidence of the defendant’s prior conviction for public drunkenness. Her defense attorney objected to admission of that evidence, but the trial court overruled the objection and allowed the evidence to be admitted.

Pennsylvania has a statute which generally prohibits the Commonwealth from cross-examining the defendant themselves about prior convictions, even where the defendant testifies. The statute provides:

§ 5918. Examination of defendant as to other offenses
No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation . . .

The statute, however, has exceptions that allow the Commonwealth to do so when:

(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or
(2) he shall have testified at such trial against a co-defendant, charged with the same offense.

Here, the defense attorney asked the defendant if she used PCP or alcohol on the day in question, and she denied that she had consumed either. Later, on cross-examination, the prosecutor asked if she had ever used drugs or alcohol, and she denied that, as well. Obviously, that was untrue as the defendant had a conviction for public drunkenness. The prosecution then the evidence of that conviction.

Additionally, while testifying on direct examination, the defendant testified that she felt terrible that day, was not really sure what happened, and that she had never been arrested before. That was not true, however, as she had the prior conviction.

Following the denial of her post-sentence motions, she appealed the conviction to the Superior Court and challenged the trial court’s decision to allow the prior conviction into evidence.

The Superior Court’s Ruling on Appeal

On appeal, the Superior Court affirmed the conviction. The Court ruled that the trial court should not have allowed the prosecutor to ask if she ever used drugs or had ever used alcohol. She had not denied ever using them on direct examination; she had only denied using them that day. She had, however, suggested that she had never been arrested before. This was not true, and that statement did not come in response to the Commonwealth’s questioning but rather the questioning of her own attorney. Therefore, the Commonwealth properly impeached her with evidence of her prior conviction in response to her insistence that she had never been arrested before. The Superior Court therefore denied the appeal.

It is possible, however, that a subsequent lawyer could challenge trial counsel’s performance in a Post-Conviction Relief Act Petition as trial counsel should not have asked a question which opened the door to a prior conviction. Thus, the issue may be one of ineffective assistance of counsel rather than error by the trial court. Either way, the Court ruled that the conviction will stand.

Facing criminal charges? We can help.

Criminal Defense Lawyers — Goldstein Mehta LLC Criminal 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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. 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 1/12/21 Zak Goldstein 1/12/21

PA Superior Court: Police May Destroy Evidence So Long As They Do Not Do It In Bad Faith

The Pennsylvania Superior Court has decided the case of Commonwealth v. Donoughe. This decision reaffirms established law that states a defendant must make a showing that the police acted in bad faith when they destroy “potentially useful” evidence. This decision is obviously frustrating given that we, as a society, should expect that the Commonwealth should keep and maintain all evidence that is gathered during a case. Unfortunately, as Donoughe shows, that is not the case and thus defendants have an additional hurdle to overcome when they allege violations of this kind.

Commonwealth v. Donoughe

Pennsylvania State Troopers were driving on Pennsylvania Route 30 in Westmoreland County when they noticed the defendant’s blue Jeep Cherokee traveling at a high rate of speed. The troopers initiated pursuit of the vehicle and at one point had to travel at 94 miles per hour (“mph”) to maintain contact with the defendant. The speed limit on that part of the road was 55 mph. After an unknown amount of time spent following the defendant, the troopers activated their overhead lights and conducted a traffic stop of the defendant’s jeep in an adjacent store parking lot. At this time, the dashcam located on the troopers’ car initiated a mobile video recording (“MVR”) of the stop.

According to the troopers, upon reaching the driver’s side window, they were able to detect a strong odor of alcohol emanating from both the jeep and the defendant’s breath. While speaking with the defendant and requesting his documents, the troopers also noticed that the defendant’s eyes were bloodshot and glassy and his movements were very slow. Additionally, the troopers saw a case of unopened beer on the backseat. When the defendant was asked how much he had been drinking that evening, the defendant answered that he had two beers prior to driving.

The troopers then ordered the defendant to exit his jeep to undergo a field sobriety test. However, the troopers decided that because the defendant was short and obese it would be unfair to administer the full set of physical performance tests and so they only had the defendant perform the horizontal gaze nystagmus test and a portable breath test. Based on the results of those tests, the defendant was placed under arrested for DUI. He was then taken to the Greensburg Barracks where he performed a “legal breath test” which registered a .107% BAC which is above the legal limit.

The defendant was subsequently charged with DUI, careless driving, and speeding. The defendant then applied for and was accepted into Westmoreland County’s Accelerated Rehabilitative Disposition (“ARD”) program and his charges were held in abeyance upon successful completion of the program. Unfortunately, the defendant was removed from the ARD program after he failed to complete the terms of his ARD sentence. Criminal charges were subsequently refiled against him and he was listed for a non-jury trial.

The defendant filed an omnibus pre-trial motion to dismiss the two DUI counts on grounds that the MVR was not provided to the defense and thus was “potentially exculpatory” and “represented critical evidence necessary to preparing a proper defense.” The trial court denied the defendant’s motion. The court’s reasoning was that the defendant only gets relief when “potentially useful” evidence is destroyed in bad faith. Westmoreland County has a policy to destroy MVR recordings 90 days after a defendant’s acceptance into the ARD program and thus there. In this case, more than a year had passed since the defendant was arrested and when his charges were refiled against him and thus the video was destroyed as a result of county policy and not because of any animus towards the defendant.

The defendant subsequently went to trial and was found guilty of the aforementioned charges with the exception of careless driving. The defendant then filed timely post-sentence motions which were denied. He then filed an appeal. On appeal, he raised two issues. For purposes of this blog, only the issue of whether the trial court’s denial of his omnibus motion violated his due process rights will be addressed because the Superior Court found that the defendant waived his other issue.

When Does a Brady Violation Occur?

Pennsylvania courts created a three-part test to determine whether a Brady violation has occurred. First, there must be evidence that is suppressed by the prosecutor. Second, it must be shown that the evidence is favorable to the defendant. This means that the evidence could be used to impeach a Commonwealth witness or it could be exculpatory for the defendant. Finally, there must be a showing that the defendant was prejudiced by the withholding and/or destruction of this evidence. In other words, there must be a showing that the outcome of his case could be affected if this evidence was presented at trial.

In the instant case, the MVR evidence was not Brady issue because it was unknown whether the MVR would have been helpful to the defendant. The defendant therefore could not meet the third prong of the test. This is why this MVR video was described as “potentially useful.” Therefore, in order to prevail on a claim of “potentially useful” evidence, the Pennsylvania courts have required that a defendant show that the evidence was destroyed in bad faith on the part of the police. This is different from whether a Brady violation has occurred because the law allows for a defendant to get relief for a Brady violation even if the evidence was inadvertently lost or destroyed.

The Superior Court’s Decision

The Superior Court affirmed the defendant’s convictions. The Superior Court followed the established law and found that the defendant must make a showing that there was bad faith involved when the police destroy “potentially useful” evidence. This case was not a good test case to try and create new law. Specifically, in this case, the defendant conceded that the police did not act in bad faith because the MVR was destroyed in accordance with Westmoreland County policy. Further, the defendant did not even submit any reason as to why the MVR footage would have been exculpatory. Therefore, it was unlikely that the Superior Court was going to overturn an established precedent based on this set of facts. Consequently, the defendant will not get a new a trial and he will be forced to serve his sentence.

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, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 6/9/18 Zak Goldstein 6/9/18

PA Superior Court Recognizes Defendant’s Right to Present Personal Safety Defense in Fleeing or Eluding Case

The Pennsylvania Superior Court has decided the case of Commonwealth v. Weber, reversing Weber’s conviction for fleeing or eluding where the trial court precluded him from presenting the statutorily-recognized “personal safety defense."

The Facts of Commonwealth v. Weber

In Weber, the defendant was charged with fleeing or eluding police in violation of 75 Pa.C.S. Sec. 3733. At trial, police testified that they saw the defendant driving through an intersection in Pittsburgh at a high rate of speed. The officers were in uniform and driving a marked police vehicle. They followed the defendant and learned that his vehicle’s registration sticker had expired. When the defendant stopped at an intersection, the officers pulled up next to him and were able to see that his car had valid, but expired inspection and emission stickers, as well. Based on these observations, the officers decided to conduct a traffic stop. They activated their lights and sirens. The defendant eventually pulled over in a parking lot.

The officers exited their patrol car and approached the defendant’s car. One went to the driver’s side door and one went to the passenger side door. The officers testified that the defendant was nervous, acting kind of strangely, and told them that he did not have a license in this country. More officers arrived, and eventually one of the officers observed a large bulge in the defendant’s jacket. The defendant kept reaching for it, so the officers asked him if he had any weapons on him. He began to get very agitated, so the police told the defendant that they were going to have to remove him from the car. As they tried to remove him, the defendant took off at a high rate of speed, crossed four lanes of traffic, and ran a red light. Officers followed him for a while but eventually gave up the chase due to safety concerns. They later found the car abandoned. However, because they had already run his information through the system, they had his name and were able to get an arrest warrant. They arrested him five months later pursuant to the warrant and charged him with Fleeing or Eluding.

The defendant also tried to testify at trial. He testified that the officers were belligerent and kept punching his car right before he fled. He also tried to testify that he fled because he was afraid for his life, but the trial court precluded him from testifying to that effect. The court convicted him of fleeing and sentenced him to 9-18 months of incarceration followed by three years of probation. The defendant appealed.

The Criminal Appeal

The defendant appealed to the Superior Court. On appeal, he argued that the trial court deprived him of the right to a fair trial and due process by preventing him from raising the personal safety defense. In general, the fleeing statute provides:

“Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits an offense.” 75 Pa.C.S. § 3733(a).

In most cases, fleeing or eluding is a felony of the third degree. At the same time, the statute provides a specific defense to the charges:

"It is a defense to prosecution under this section if the defendant can show by a preponderance of the evidence that the failure to stop immediately for a police officer's vehicle was based upon a good faith concern for personal safety."

The statute provides a number of factors for a court to consider when evaluating whether the defendant had a good faith concern for personal safety. In determining whether the defendant has met this burden, the court may consider the following factors:

(i) The time and location of the event.

(ii) The type of police vehicle used by the police officer.

(iii) The defendant's conduct while being followed by the police officer.

(iv) Whether the defendant stopped at the first available reasonably lighted or populated area.

(v) Any other factor considered relevant by the court.

Prior to trial, the judge held a conference in chambers to discuss the case. The criminal defense lawyer told the judge that the defense intended to assert the personal safety defense through the cross-examination of the Commonwealth’s witnesses and the testimony of the defendant. The trial judge, however, ruled that the court would not allow the defendant to assert the defense. Essentially, the trial judge conducted his own evaluation of the factors, compared that to the Commonwealth’s allegations, and found that the defendant could not credibly assert the defense. Therefore, the judge refused to instruct the jury on the availability of the defense and prevented the defendant from testifying that he fled because he was afraid that the officers were going to harm him.

PA Superior Court Recognizes the Personal Safety Defense in Fleeing Cases

The Superior Court reversed the defendant’s conviction and awarded him a new trial. The court found that the trial judge violated the defendant’s right to due process by preventing him from asserting a statutorily-available defense and testifying to his belief that he had to flee out of concerns for his own safety. The court found that the above factors are simply factors which the fact-finder, in this case the jury, must consider in deciding whether the defendant is entitled to the defense. They are not elements of the defense that must be met prior to trial – they are just things to consider when the jury is deliberating. Thus, the trial judge may not preclude a defendant from testifying and trying to establish a good faith fear for personal safety.

The court also noted that the defendant’s subjective belief, which would have been established through the defendant’s testimony, was relevant to the defense because in order to assert the defense, the defendant must actually hold the subjective belief that the police are going to harm him. At the same time, the defendant must also hold that belief in good faith. But part of analyzing whether the defendant holds the belief in good faith means allowing the defendant to testify as to what he thought would happen and why. The trial court erred by taking the above factors as a prerequisite to the defendant testifying instead of simply factors to consider. Accordingly, the court awarded the defendant a new trial and ordered that he be permitted to present a full defense.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. We are experienced and understanding defense attorenys who will fight for you. We offer a free 15-minute criminal defense strategy session to each potential client. Call or text 267-225-2545 to speak with an attorney today.

Zak Goldstein 6/5/18 Zak Goldstein 6/5/18

PA Superior Court: Tracing IP Addresses at Trial Requires Authentic Evidence and Expert Witnesses

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has decided the case of Commonwealth v. Manivannan. In Manivannan, the Superior Court reversed the defendant’s cyber-stalking related convictions after finding that prosecutors improperly failed to prove that the defendant was the person who accessed the complainant’s e-mail account without permission. This is an important decision because it continues a trend of Pennsylvania appellate courts recognizing that electronic evidence can easily be fabricated and therefore must be properly authenticated in order to be admitted into evidence.

The Facts of Commonwealth v. Manivannan

In August 2011, the defendant worked at the United States Department of Energy. While employed there, he met and began dating the complainant. The complainant would occasionally use his computer to access her email, but she never gave him permission to access her email account. In November 2013, the complainant ended the relationship with the defendant and began seeing another man.

The defendant did not take the breakup well. By January 2014, the defendant was regularly contacting the complainant through various means of communication despite being asked to stop. On one night, the complainant and her new boyfriend were sitting in her car when the defendant pulled up behind them. The defendant proceeded to follow the two after the complainant drove away. Thereafter, the complainant confronted the defendant and told him that he needed to stop following her.

The defendant continued to engage in this type of behavior. For example, the complainant and her new boyfriend planned a weekend trip to Morgantown, West Virginia. While there, she became aware that the defendant was in the area, as well. Obviously, she became suspicious that the defendant’s presence was not coincidental. She then learned that the accommodation emails she obtained from the hotel were forwarded to her mother, even though the complainant did not send them herself.

The complainant checked the log-in records for her email account and learned that her email account had been accessed twenty-one times from thirteen different Internet Protocol (“IP”) addresses located in various states. She screenshotted the suspicious activity and gave the photos to the police. The police then used a website called Geektools.com to determine which internet service providers owned the IP addresses, and the police then subpoenaed the account information for those IP Addresses from Comcast.

Comcast provided the police with a fax on Comcast letterhead with information stating that the IP addresses used to access the complainant’s e-mail account belonged to the defendant. The defendant was then charged criminally with five counts of unlawful use of a computer and one count of harassment.

The defendant pleaded not guilty and went to trial. At trial, the judge permitted the Commonwealth to introduce the screenshots taken from the complainant’s log-in records despite the defendant’s objection that there was no basis for authenticating that those IP addresses were actually the addresses that accessed the complainant’s e-mail account. The trial court also permitted the Commonwealth to introduce the letter from Comcast. This letter did not indicate an individual author, but it was signed “Comcast Legal Response Center.” The defendant objected to the introduction of this letter because it failed to identify an individual author and it was not an original as required under Rule 1002 of the Pennsylvania Rules of Evidence. To overcome this, the Commonwealth provided a separate, faxed, boilerplate Pa.R.E. 902(11) declaration that was dated on April 18, 2016 that gave no context for the document its signor purported to certify. This document made no reference to the Comcast letter, and the Commonwealth also presented no evidence that the certification it offered had actually accompanied the Comcast letter. The Commonwealth argued that it qualified as a Business Record and thus an exception to the rule against hearsay. After argument, the trial court allowed the introduction of this letter.

The trial court further allowed the police officer and the complainant to testify that the defendant was in Los Angeles, California when someone accessed the complainant’s email account with an IP address that was located in Los Angeles. However, neither the complainant nor the officer were qualified as expert witnesses. At the conclusion of the trial, the jury convicted the defendant, and the court sentenced him to nearly five years of probation. The court also attempted to ban the defendant from the Commonwealth of Pennsylvania, although it later rescinded that unconstitutional provision. The defendant appealed his conviction based on the unreliable electronic evidence, and the Commonwealth appealed the fact that the court did not sentence the defendant to jail time.

The Superior Court Appeal

The Superior Court reversed the conviction. It found both that the Commonwealth failed to properly authenticate the IP address tracking that the police had done and that authenticating these documents required the testimony of an expert witness.

What is the Business Record Exception to the Hearsay Rule?

Typically, hearsay is not admissible in trial. Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is typically not admissible because it is not trustworthy and because the defense has no opportunity to cross-examine the person that made the statement. However, there are exceptions to the general ban on hearsay. One such exception is the Business Records Exception. This rule allows statements that would otherwise be hearsay to be admitted into evidence if certain requirements are met. The logic behind is the rule these records are inherently reliable because businesses have an interest in having accurate records. It is important to remember that the record does not have to come from the traditional definition of a business. Associations, institutions, non-profit organizations, etc. can all produce documents that qualify as a “business record” for purposes of this rule.

Prosecutors routinely use the Business Records Exception in their cases. In Pennsylvania, there is a five part test that must be satisfied for a statement to qualify as an Business Record: 1) the record was made at or near the time by-or from information transmitted by-someone with knowledge; 2) the record was kept in the course of regularly conducted activity of a “business”; 3) making the record was a regular practice of that activity; 4) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12), or with a statute permitting certification; and 5) neither the source of the information nor other circumstances indicate a lack of trustworthiness (i.e. a document that was made in anticipation of litigation would not be deemed reliable). All of these elements must be met before a document can be entered into evidence.

The Court’s Ruling

In Manivannan, one of the main issues was whether the Commonwealth properly authenticated the Comcast letter. Notably, the Commonwealth failed to present testimony from a custodian of records or other qualified witness. Instead, it attempted to authenticate the Comcast letter using the vague certification. The problem with the certification was that it was not specific. Specifically, the court stated that there was “no discernable correlation between this document and the evidence it purports to authenticate.”

This is very significant because prosecutors frequently attempt to introduce documents under the Business Record Exception without complying with all of the requirements. Here, the court held that the trial court erred when it admitted this letter into evidence. The Court further held that this was reversible error because the letter provided the only direct evidence of the defendant’s connection to the IP address that unlawfully accessed the complainant’s e-mail account.

The Commonwealth Must Present Expert Witnesses to Trace IP Addresses At Trial

The Superior Court also found that the trial court should have required the Commonwealth to present expert witnesses as to the IP address tracing. The court found that lay witnesses cannot draw conclusions from highly technical issues such as ascertaining geographic locations from IP addresses and testify to these conclusions at trial. In Manivannan’scase, the Commonwealth introduced evidence of various IP accounts, testimony about how IP addresses work, and how those addresses were traced back to the defendant without ever offering evidence that the officer or complainant were expert witnesses in the relevant field. The Superior Court rejected the introduction of this testimony without an expert witness, finding that expert testimony is required when the Commonwealth seeks to introduce this highly technical evidence. In other words, subjects such as IP addresses, how e-mail accounts are maintained, the ability to link a physical addresses to an IP address, and other computer science related issues are not common knowledge. Therefore, the trial court should have prohibited this testimony without an expert witness. Accordingly, the court reversed the defendant’s conviction for this reason, as well.

Facing Criminal Charges? We Can Help

Manivannan illustrates that a case can be won or lost based on challenges to the evidence that is allowed to be presented to the jury. If you are charged with a highly technical crime, you need a skilled defense attorney who is up-to-date on the rules of evidence and able to use them to your advantage. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free 15-minute criminal defense strategy session to anyone who is facing criminal charges or under investigation. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.