Philadelphia Criminal Defense Blog

Zak Goldstein 9/30/25 Zak Goldstein 9/30/25

PA Supreme Court: Defendant Failed to Present Sufficient Evidence to Require Voir Dire Question on Whether Jurors Will Always Believe Alleged Child Abuse Victims

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Smith, affirming a trial court's broad discretion in refusing a specific jury selection question about a juror’s potential for bias in favor of the truthfulness of alleged child sexual assault victims. The Court concluded that based on the record presented to the trial judge, there was no abuse of discretion in denying the proposed inquiry because the defendant failed to show that jurors tend to believe child abuse complainants more than other potential witnesses. Had the defense presented more evidence to the trial court, however, the question may well have been required.

The Issue in Smith

The defendant, who had been convicted of child sexual assault charges, challenged the trial court's refusal to ask prospective jurors the following specific question during voir dire (jury selection):

Are you more likely to believe the testimony of a child alleging sexual abuse because you do not believe a child could lie about sexual abuse?

The defendant argued that in a case where the uncorroborated testimony of the child complainants was central to the Commonwealth’s case, his right to an impartial jury required a specific inquiry into a potential "fixed bias" that children do not lie about sexual abuse.

The Court's Ruling: Insufficient Evidence to Support the Question

The Supreme Court applied an abuse of discretion standard of review to the trial court’s ruling and rejected the defendant’s challenge as follows:

No Foundation at Trial: The Court noted that the defendant’s argument for the existence of this fixed bias was a "bald assumption" before the trial court as he "offered no support for the proposition that the inquiry addressed a fixed bias or prejudice.” Because the Court must review the trial court's decision based on the information it had at the time, the defense's later, more detailed arguments on appeal were not helpful in terms of retroactively showing that the trial court erred.

Adequate General Inquiry: The trial court had conducted extensive general and individual voir dire. This included informing the panel of the nature of the charges and asking if anything would prevent them from being

fair and impartial, as well as inquiring if they or anyone close to them had been victims of sexual assault or child abuse. The trial court also excused multiple jurors for cause who claimed an inability to be fair.

Fixed Bias vs. Credibility: The Court clarified that inquiries designed to uncover a fixed bias, such as one related to a certain category of witnesses, are not the same as instructions on general witness credibility. A fixed bias precludes an impartial determination of credibility. However, based on the lack of a foundation supporting the existence of this particular bias due to the defendant’s failure to develop the record at the trial level, the trial court did not abuse its discretion.

The Court's decision essentially provides a roadmap for future cases: a trial court is only free to refuse this line of inquiry if the party requesting it fails to present a developed, evidence-based argument for the existence of a fixed bias. Here, the defendant presented strong evidence of the bias to the Supreme Court such that the Court may well have reversed had the evidence been presented to the trial court, but because the trial court could only make a ruling based on the evidence presented at the time, the Supreme Court rejected the defendant’s challenge.

Unlawful Contact Remand: Reconsideration in Light of Strunk

The Court also addressed the defendant’s challenge to his convictions for unlawful contact with a minor (18 Pa.C.S. § 6318).

Commonwealth v. Strunk: Subsequent to the Superior Court's decision affirming in this case, the Supreme Court narrowed the scope of the unlawful contact statute in Commonwealth v. Strunk.

Strunk held that Section 6318 is an "anti-grooming statute" intended to criminalize and punish “communication designed to induce or otherwise further the sexual exploitation of children.”

The Outcome: Given the significant clarification in the law, specifically, the refinement of the sufficiency of the evidence required for convictions under Section 6318—the Supreme Court vacated the Superior Court's judgment on this issue and remanded the case for reconsideration in light of Strunk. The Superior Court will now have to apply the statute’s narrower focus on "communicative behavior” in this case on remand.

Ultimately, although the result is bad for this particular defendant, the case is good for defendants in general in that it shows that should a defendant make an adequate record, they might be entitled to ask potential jurors about whether they will always believe alleged child abuse victims. Similarly, the Court continues to hold that the unlawful contact statute is not nearly as broad as prosecutors typically claim.

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Zak Goldstein 6/18/25 Zak Goldstein 6/18/25

PA Superior Court: Trial Court Erred in Quashing Charges From Online Sting Operation Run by Private Citizen Based on Factual Impossibility

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

In Commonwealth v. Aguilar, 2025 PA Super 118, the Pennsylvania Superior Court reversed the order of the Monroe County Court of Common Pleas dismissing criminal charges against a defendant who had been caught in an online sex sting operation run by a private citizen. The Superior Court held that the trial court erred in granting the defendant’s motion to suppress because a motion to suppress was not even the correct type of motion for a defendant to bring. The Court also ruled that even if the trial court properly construe the motion as a motion to quash, the trial court erred in granting it based on factual impossibility as factual impossibility is not a defense in Pennsylvania.

Background

The defendant was targeted by a group called LC Predator Catchers. Posing as a 15-year-old boy on dating apps, a private citizen allegedly engaged in explicit conversations with the defendant. According to the affidavit of probable cause, the defendant sent sexual messages and photos, offered to be “fuck friends,” and invited the fake minor to his home. The private citizen allegedly showed up at the defendant’s house, confronted him, and then notified the Pocono Mountain Regional Police Department. Police later conducted a Mirandized interview, during which the defendant allegedly acknowledged the sexual intent of his messages.

Prosecutors charged the defendant with:

Criminal Attempt – Corruption of Minors (both as a misdemeanor and felony under 18 Pa.C.S. § 6301(a)(1)),
Criminal Use of a Communication Facility (18 Pa.C.S. § 7512(a)).

Suppression and Trial Court Proceedings

The defendant filed a pretrial “motion to suppress,” arguing that all charges should be dismissed because his communications were with an adult civilian rather than an actual minor or police officer. He relied on the text of 18 Pa.C.S. § 6318 (the Unlawful Contact with a Minor statute), which explicitly requires the involvement of a real or undercover minor. Although the defendant was not actually charged under that statute for that reason, the trial court accepted his argument and reasoned that it was factually impossible for the defendant to have committed the charged offenses.

The trial court then sua sponte treated the suppression motion as a motion to quash and dismissed the criminal information in its entirety based on this impossibility argument. In its opinion, the trial court also concluded on its own that the Commonwealth failed to present a prima case at the preliminary hearing that the defendant committed a crime. The Commonwealth appealed.

The Superior Court’s Ruling

The Pennsylvania Superior Court reversed after concluding that the trial court made a number of mistakes.

Suppression Inapplicable: Because the communications were with a private citizen, not law enforcement, there was no Fourth Amendment or Pennsylvania constitutional violation. Thus, suppression was not a proper remedy.
Improper Sua Sponte Quashal: The defendant never filed a motion to quash. Under Pennsylvania law, quashal must be specifically requested in an omnibus pretrial motion, and sua sponte dismissal is generally improper. The Court emphasized that a suppression motion cannot be repurposed into a dispositive ruling on legal guilt.
Factual Impossibility Is Not a Defense: The Superior Court reaffirmed that under Pennsylvania law, factual impossibility is not a defense to an attempt charge. So long as the defendant believed he was communicating with a minor and took a substantial step toward completing the offense, he could be charged with attempt—even if the "minor" turned out to be an adult vigilante.
No Minor Required Under Charged Statutes: The Superior Court rejected the defendant’s argument that a minor or police officer was required to establish a violation of the statutes at issue. The Corruption of Minors statute, unlike § 6318, does not require the involvement of a real or fictitious minor. Likewise, the offense of Criminal Use of a Communication Facility requires only that the facility be used to facilitate a felony or attempted felony.
Prima Facie Case Was Established: The court found that the Commonwealth had produced sufficient evidence to support each element of the offenses charged. Chat logs, photographs, the defendant’s confession, and the arrangement to meet in person all constituted a prima facie case. Because no preliminary hearing had yet been held, the trial court’s ruling on evidentiary sufficiency was premature. Therefore, the Court reversed.

Conclusion

The Superior Court reinstated all charges and remanded the case for further proceedings. It emphasized that the charges did not require the involvement of an actual or undercover minor and that the trial court overstepped its role by misapplying both suppression doctrine and the law of attempt. Accordingly, the Court effectively held that private-citizen stings—though controversial—can lead to viable prosecutions in Pennsylvania.

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Zak Goldstein 1/30/25 Zak Goldstein 1/30/25

PA Superior Court: Confessions Made to Police Officers at Church Do Not Qualify for Clergy-Penitent Privilege

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Ross, holding that the trial court properly denied the defendant’s motion to suppress a confession made to a police officer because the clergy-penitent privilege did not apply even though the defendant knew the officer from church.

The Facts of Ross

The defendant was convicted of rape, unlawful contact with a minor, endangering the welfare of children, corruption of minors, indecent assault, and incest following a 2020 jury trial in the Philadelphia Court of Common Pleas. The case stemmed from an incident that took place on August 13, 2014. The defendant allegedly entered the bedroom of his 15-year-old foster daughter and sexually assaulted her. The defendant’s adult daughter saw him leaving the complainant’s room and alerted the defendant’s wife. She immediately called the police and kicked him out of the house.

After being expelled from the home, the defendant sought guidance from his pastor. His pastor was a longtime friend and fellow minister. After the defendant told the pastor that he fondled the complainant, the pastor then contacted a Philadelphia Police Officer who was also a pastor and co-host of a religious radio show and asked the officer to meet with the defendant at their church. The officer went to the church, and the defendant admitted to fondling the complainant to the officer. The officer then drove the defendant to the Special Victims Unit (SVU) to turn himself in.

The defendant was arrested and subsequently charged with multiple sexual offenses. He moved to suppress the statement to his pastor as well as the statement to the officer. The trial court excluded the statement which was made to the pastor under the clergy-penitent privilege, but it denied the motion with respect to the officer. The court found that the officer was acting as an officer and not as a pastor, and so the defendant was not entitled to the clergy-penitent privilege.

The defendant proceeded by way of jury trial, and the jury convicted him. The trial court sentenced him to 27.5 - 55 years’ incarceration and required him to register as a sex offender for life under SORNA. The defendant appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

The defendant appealed his conviction, arguing that:

His statements to the police officer should have been suppressed because he made them while he was in custody and he had not received his Miranda warnings.
His confession to the officer should have been excluded under the clergy privilege because the officer was off-duty and present in the church in a religious capacity rather than acting as a police officer.

The Superior Court’s Ruling

The Superior Court rejected both claims and affirmed the conviction.

Miranda Violation Claim Denied: The Superior Court found that the defendant was not in custody when he made his statements to the officer. His meeting with the officer was voluntary, and he agreed to turn himself in. The officer was off-duty and never arrested the defendant. Instead, the pastor called the officer, and the defendant agreed to speak with him at the church. The police do not have to give Miranda warnings to someone who is not in custody because Miranda only applies to custodial interrogations. The defendant was not in custody at the church when he made the statement to the officer, so the officer did not have to provide Miranda warnings in order for the statement to be admissible at trial. The Court also noted that although the defendant filed a motion to suppress based on the lack of Miranda warnings, his attorney did not really pursue that claim at the motions hearing.
Clergy Privilege Claim Rejected: The Court agreed that the defendant’s initial conversation with his pastor was privileged, but it ruled that the privilege did not extend to statements made in the presence of the officer. The Court found that the defendant viewed the officer as a trusted police officer or friend, not a spiritual advisor, and sought his assistance in surrendering to authorities. The Court reached this conclusion even though the officer was also a pastor. It concluded that the officer was not acting as the defendant’s pastor as the time but instead there to help him turn himself in.

The clergy-penitent privilege is codified under Pennsylvania law. It provides:

23 Pa.C.S. § 5943. Confidential communications to clergymen.
No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

The problem for the defendant here is that both the trial court and Superior Court found that the officer was not acting in his course of duties as a pastor at the time of the confession. Therefore, the privilege did not apply.

The Takeaway

Ultimately, the result here is not particularly surprising. Non-custodial, voluntary confessions to police officers are typically going to be admissible in court even if the police officer knows the defendant from church. This case, however, highlights that Miranda rights only apply to custodial interrogations. If the defendant is not in custody and interrogated, then they are not entitled to Miranda warnings. Further, the remedy for a Miranda violation is the suppression of the statement; it is not necessarily the dismissal of the case. Additionally, privileges are important, but they only apply in limited circumstances. The clergy-penitent privilege does not apply unless the person is acting within the scope of their religious duties, and here, the officer was obviously a police officer rather than the defendant’s pastor. The privilege also does not apply when a third party is present. Therefore, the Superior Court denied the appeal.

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Facing criminal charges or appealing a criminal case in state or federal court in Pennsylvania? 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. 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 11/17/24 Zak Goldstein 11/17/24

PA Supreme Court: Unlawful Contact Conviction Requires Prior Communication, Not Just the Assault or Touching Itself

Criminal Defense Attorney Zak Goldstein — Zak T. Goldstein, Esquire - Philadelphia Criminal Defense Attorney

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Strunk, holding that unlawful contact cannot be proven solely through evidence that the defendant had some sort of illegal physical sexual contact with the alleged victim. Instead, the statute requires some kind of prior communication to facilitate a sex crime. This narrows the reach of the statute to more closely match the legislative intent behind it as the point of the statute is to prevent communications designed to facilitate illegal sex acts rather than to criminalize the actual assault itself given that other existing statutes criminalize the assault.

Recent cases from the Superior Court, however, had found that a violation of the statute could be proven without any evidence of any prior communication. That is no longer the case, but the actual illegal contact or sex act can still be prosecuted under the statute that covers the substantive contact. This reading of the statute by the Pennsylvania Supreme Court returns the statute to its original purpose and makes sure that people will not be prosecuted twice for the exact same conduct.

The Facts of Strunk

The defendant was convicted in the Dauphin County Court of Common Pleas following testimony from the complainant which detailed repeated sexual assaults occurring over a period when she lived in the same household. The complainant’s testimony described incidents where the defendant allegedly initiated physical contact while she pretended to be asleep. Despite the obviously illegality of the sexual acts themselves, the crux of the appeal centered on whether the defendant’s conduct met the statutory requirements for "unlawful contact with a minor" because there was no real evidence that the defendant said or did anything in advance to facilitate to assaults.

The complainant specifically testified to three instances of alleged sexual assault:

The defendant fondled the complainant while she slept on a couch and proceeded to sexually assault her. Afterward, he whispered something unintelligible to her, but there was no evidence of prior communication to facilitate the assault.
The defendant assaulted the complainant again while she was recuperating on the couch after dental surgery. She testified that she was heavily sedated and unable to respond. He digitally penetrated her during this assault, but the complainant testified that there was no verbal or nonverbal communication beforehand.
The defendant assaulted the complainant in her bedroom while she pretended to be asleep. This assault was interrupted by the victim’s mother, but again, the complainant testified that there was no communication between her and Strunk before or during the assault.

The complainant’s testimony was consistent in that she denied any verbal or nonverbal communication between her and the defendant that facilitated the actual assaults.

The Supreme Court Appeal

The Pennsylvania Supreme Court granted review on two issues:

Whether the evidence presented at trial was sufficient to support the defendant’s conviction for Unlawful Contact with a Minor under § 6318, given the lack of communication.
Whether the Pennsylvania Superior Court erred in interpreting § 6318 to allow physical contact beyond the sexual acts themselves to satisfy the statute's communication requirement.

The statute provides:

§ 6318. Unlawful contact with minor.
(a) Offense defined.--A person commits an offense if the person is intentionally in contact with a minor, or a law enforcement officer acting in the performance of duties who has assumed the identity of a minor or of another individual having direct contact with children, as defined under 23 Pa.C.S. § 6303(a) (relating to definitions), for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
(2) Open lewdness as defined in section 5901 (relating to open lewdness).
(3) Prostitution as defined in section 5902 (relating to prostitution and related offenses).
(4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).
(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).
(6) Sexual exploitation of children as defined in section 6320 (relating to sexual exploitation of children).
(b) Grading.--A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) for which the defendant contacted the minor; or
(2) a felony of the third degree; whichever is greater.

18 Pa.C.S. § 6318 criminalizes being “in contact with” a minor for purposes such as engaging in a prohibited sexual act. Historically, courts, including the Pennsylvania Superior Court, have interpreted this statute as focused on communication — either verbal, written, or non-verbal cues that facilitate the illegal conduct. The Superior Court, however, upheld the defendant’s conviction in this case even though he did not say anything, reasoning that non-communicative physical acts, such as manipulating clothing before the assault, were sufficient to fulfill the statute's requirements.

However, the Pennsylvania Supreme Court disagreed. The Court found that the statute was ambiguous, and therefore an analysis of what exactly it covers required looking at the legislative intent behind it. Further, the Court found that the legislative intent behind § 6318 focused on criminalizing communication aimed at facilitating sexual exploitation, rather than physical actions alone. The analysis delved into both statutory language and legislative history, concluding that while "contact" can imply physical touch in other contexts, its interpretation within § 6318 should remain tied to prior communication.

The Legislative and Judicial Context

The majority opinion highlighted that § 6318, as conceived, aimed to address the risks posed by communication—whether through digital means or in-person interactions—that predators might use to groom or manipulate minors. Legislative debates leading to the statute’s enactment emphasized combating "cyber enticers," reflecting an emphasis on communicative acts over physical ones. In other words, the Legislature clearly enacted the statute to criminalize the type of behavior at issue in shows like To Catch a Predator. The statute is designed to make it illegal to contact minors to set up illegal sexual encounters; it does not criminalize the illegal sexual encounter itself because other statutes already do that. The Court therefore held that the Superior Court erred by conflating physical contact with communicative efforts. The Pennsylvania Supreme Court emphasized that § 6318 is not designed to criminalize physical acts alone, as those are addressed by other statutes.

This interpretation aligns with some prior Superior Court rulings like Commonwealth v. Leatherby which required clear evidence of communication intended to facilitate sexual offenses. In this defendant’s case, however, the Court noted that although his actions were egregious, there was no evidence of verbal or non-verbal communication facilitating the assaults during the incidents in question. It is now clear that the statute is not violated by evidence of the illegal physical contact alone. Other statutes are violated, but the unlawful contact statute is not.

The Takeaway

The PA Supreme Court's decision to vacate the defendant’s conviction for unlawful contact did not affect his convictions for other sexual offenses, but it does not limit what had become an overly broad reach for this particular statute. If someone gropes a minor, then the appropriate charge for that is indecent assault. If someone communicates with a minor online or by text message to facilitate a groping, then the appropriate charge is unlawful contact even if the groping never happens. If the groping then happens, then the defendant could be charged with both unlawful contact and indecent assault. But it is now clear that unlawful contact may not be proven through evidence of the groping alone.

This is an important case because unlawful contact is a serious charge; it often carries more time in prison or more serious Megan’s Law requirements than the underlying sex offense. This opinion clarifies the scope of § 6318, reinforcing its focus on criminalizing communication intended to exploit minors rather than physical actions associated with sexual offenses. It underscores the need for clear evidence of communication to sustain a conviction under this statute.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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