Philadelphia Criminal Defense Blog

Zak Goldstein 9/13/25 Zak Goldstein 9/13/25

Pennsylvania Superior Court Rejects Challenge to Use of Preliminary Hearing Transcript and Related Exhibits Against Defendant at Trial

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson. The Court affirmed the defendant’s conviction based on the use of the preliminary hearing testimony and accompanying exhibits against him at trial. The Court ruled the the use of the prior sworn testimony and related exhibits did not violate the rules of evidence or the defendant’s rights under the Confrontation Clause because the defendant had a full and fair opportunity to cross-examine the witness at the preliminary hearing.

Facts and Procedural History

The police alleged the defendant exited a green Pontiac and fired multiple shots, striking the target and an innocent bystander. The target’s pregnant girlfriend initially identified the defendant and the driver from photo arrays and gave a signed statement to police.

At the preliminary hearing, however, the girlfriend largely recanted. She admitted signing the statement and the photo arrays but testified that she had been hiding and did not actually see who fired the gun. Before trial, she became unavailable despite the Commonwealth’s efforts to find her. The Commonwealth sent police officers to try to find her and bring her to court, but they were unsuccessful, and she never appeared for trial. The trial court therefore permitted the Commonwealth to introduce her preliminary hearing testimony, her signed police statement, and the photo arrays despite the defendant’s hearsay and confrontation objections.

A jury convicted the defendant of two counts of attempted murder, two counts of aggravated assault, and multiple firearm offenses. The trial court sentenced him to an aggregate 25–50 years’ incarceration. He appealed.

The Issues on Appeal

Proceeding pro se, the defendant argued that the trial court erred in admitting the girlfriend’s signed police statement and her photo array identifications as substantive evidence at trial. He contended that their admission violated both Pennsylvania’s evidentiary rules against hearsay and his constitutional right to confront the witnesses against him.

The Pennsylvania Superior Court’s Decision

The Superior Court affirmed. The panel emphasized that:

Pa.R.E. 803.1 permits admission of prior inconsistent statements if the declarant testified and was subject to cross-examination at the prior proceeding.
Pa.R.E. 804(b)(1) allows former testimony to be admitted when the witness is unavailable, provided the opposing party had a similar motive and opportunity to cross-examine.
The girlfriend testified at the preliminary hearing, was confronted with her prior statements by the defense attorney, and was subject to cross-examination. This satisfied both the Pennsylvania Rules of Evidence and the Confrontation Clause.

The Court relied heavily on Commonwealth v. Stays, where a similar recantation and later unavailability led to admission of prior statements. The Court also explained that even if admitting the girlfriend’s written police statement had been error, it was harmless, because her preliminary hearing testimony already included a verbatim reading of that statement.

The Takeaway

This case highlights the importance of preliminary hearing testimony in Pennsylvania criminal cases. Even when a witness recants at the hearing and later becomes unavailable, their prior identifications and statements may still be admitted at trial if the defense had an opportunity to cross-examine them. For defendants, this means a recantation does not necessarily prevent the jury from hearing the original identification.

Facing Criminal Charges or Appealing a Criminal Case?

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 1/6/25 Zak Goldstein 1/6/25

PA Superior Court: Forwarded Emails May Qualify as Duplicates for Best Evidence Rule

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Fischer, holding that the trial court properly admitted forwarded emails as duplicates under the best evidence rule even though forwarded emails can easily be tampered with or forged. The Court held that the best evidence rule did not prohibit the admission of the emails.

The Facts of the Case

The defendant and the complainant, his ex-fiancée, were involved in a ten-year relationship that ended prior to August 2020. They shared a child, who was two years old at the time of the events in question. Between August and September 2020, the defendant allegedly engaged in repeated communications directed toward the complainant. The communications involved making phone calls to the complainant, sending text messages and emails, and making social media posts tagging the complainant. On one occasion, the defendant made 100 calls to the complainant in a single day, which seems excessive.

The communications included threats and manipulative language. For example, one email stated: “If you don’t ensure our daughter is reunited with me this evening, your life will change forever tomorrow, as will your mother’s. Tread carefully. You’re being watched.”

At trial, the Commonwealth relied on forwarded emails from the complainant. The complainant had forwarded the emails from one account to another and then printed out the emails and given them to the police. The prosecution introduced them into evidence as evidence of the defendant’s harassing conduct.

The Commonwealth charged the defendant with three counts of harassment and one count of stalking. A jury convicted him of two harassment charges but acquitted him of stalking and one of the three harassments counts. The trial court sentenced the defendant to two years of probation with restrictive conditions. The defendant appealed, arguing that the trial court erred in admitting the forwarded emails because they should not have been admissible under the Best Evidence Rule.

The Superior Court Appeal

The defendant argued that the forwarded emails were not admissible for three reasons.

They were not “originals” or “duplicates” under the Pennsylvania Rules of Evidence.
The forwarding process allowed for potential manipulation of the content.
Omitted portions of the email correspondence removed necessary context from the evidence.

The trial court overruled these objections, admitting the emails as “duplicates” under Pennsylvania Rule of Evidence 1001(e), which defines a duplicate as a copy produced through an electronic or other reliable process that accurately reproduces the original.

The Superior Court affirmed the trial court’s decision, holding that the forwarded emails were properly admitted as duplicates. The Court’s reasoning was based on the following:

Duplicate Status: The Court determined that the forwarded emails met the definition of duplicates because they were created through an electronic process that accurately reproduced the original content, including the sender’s and recipient’s email addresses, timestamps, and subject lines. The forwarded emails contained more detailed metadata than the screenshots at issue in Commonwealth v. Talley, a leading case on the Best Evidence Rule.
Authenticity: The defendant failed to raise specific challenges to the authenticity of the emails. The complainant authenticated the forwarded emails through her testimony, testifying that they were identical to the messages she received from the defendant. Thus, this claim was waived, and it would have been rejected anyway because the complainant could authenticate the emails as the emails that she received.
Fairness: The Court rejected the defendant’s argument that the forwarded emails were unfairly admitted because other communications were omitted. The Court noted that the defense could have addressed these omissions through cross-examination or by introducing additional evidence.
Precedent: The Court relied on the Pennsylvania Supreme Court’s decision in Talley, which held that screenshots of text messages are admissible as duplicates under the Best Evidence Rule if created through a reliable process and authenticated at trial.

Ultimately, the Superior Court held that the forwarded-and-then-printed emails were duplicates of the originals and that forwarding an email and then printing it was basically the same thing as screenshooting it. In Talley, the Supreme Court ruled that screenshots of text messages were admissible as duplicates.

The problem is that screenshotting in fact creates a duplicate, whereas a forwarded email is not the exact same thing as the original email. It is easy for someone to change the text in the forwarded email, and one of the judges issued a concurrence suggesting that she would not have allowed for the admission of the emails because the risk of manipulation was too high.

In this case, however, the Court ruled that the emails were properly admitted and that any challenge to whether they were real should be decided by the fact-finder rather than as a challenge to their admissibility. The defense was free to cross-examine the complainant on the fact that she did not have the original emails available and then argue that they were fake. The problem with this analysis is that judges and juries are often too quick to rely on electronic evidence like text messages and emails that looks real even when it is not. It takes only a matter of seconds to edit or forge a text message or email, and unless someone is particularly savvy with technology, they may not realize just how easy it is to forge this type of evidence. Further, it is usually not particularly difficult to obtain actual records from the service provider to show that the screenshots or forwarded messages are real. Unfortunately, the courts have generally rejected the idea that the prosecution should have to obtain solid proof that the images are real, instead shifting the burden to the defense to prove that they are fake. Hopefully, the defendant will seek further review in this case. The appellate courts may also begin to reevaluate the low standard for the admissibility of electronic evidence as it becomes clearer that this type of evidence can be fabricated in a matter of seconds.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

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, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 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.