Philadelphia Criminal Defense Blog

Zak Goldstein 6/9/26 Zak Goldstein 6/9/26

PCRA Court Grants New Trial for Attorney Goldstein’s Client in Cumberland County Sexual Assault Case Due to Trial Counsel’s Failure to Call Character Witnesses

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, of Goldstein Mehta LLC recently won a new trial for a client in the case of Commonwealth v. J.R. In an opinion and order issued on June 9, 2026, the Cumberland County Court of Common Pleas granted J.R.’s Post-Conviction Relief Act petition, finding that trial counsel provided the ineffective assistance of counsel by failing to call character witnesses at J.R.’s trial on sexual assault charges. The court ordered a new trial and set unsecured bail, clearing the way for J.R.’s release after he had served nearly two years in state prison.

Commonwealth v. J.R.: The Allegations and the Trial

The case arose from a night out in March 2023. J.R. and three co-workers went out drinking after their shifts ended at the restaurant where they worked. At the end of the night, one co-worker drove the group home in his small two-door car. A second co-worker rode in the front passenger seat, while J.R. and the complainant sat in the back seat. The complainant became heavily intoxicated over the course of the evening and later alleged that J.R. forced the complainant to engage in sexual contact, including oral sex, during the drive. The front seat passenger testified that she heard the complainant say “help me” and turned to see J.R. holding the complainant’s hand against him. The driver testified that he did not observe any sexual contact. After J.R. was dropped off, the complainant disclosed the alleged assault to the two other co-workers, and they went to the police the following morning.

J.R. was arrested and proceeded to a jury trial in May 2024. He took the stand in his own defense and admitted that sexual contact occurred, but he testified that it was entirely consensual. The jury found him guilty of involuntary deviate sexual intercourse, sexual assault, and related offenses, and the trial court sentenced him to four and a half to nine years’ incarceration. The Superior Court affirmed the judgment of sentence on direct appeal in December 2025.

The PCRA Petition

J.R. retained Attorney Goldstein, who filed a timely Post-Conviction Relief Act petition on his behalf. The petition raised two claims of ineffective assistance of counsel: first, that trial counsel failed to impeach the driver, a Commonwealth witness, with his extensive history of crimen falsi convictions, and second, that trial counsel failed to call character witnesses on J.R.’s behalf even though several witnesses were available and willing to testify to his reputation for peacefulness and non-violence. The court held an evidentiary hearing in May 2026 at which trial counsel testified.

To win a new trial based on the ineffective assistance of counsel, a PCRA petitioner must prove that the underlying claim has arguable merit, that counsel had no reasonable strategic basis for the act or omission, and that counsel’s error prejudiced the petitioner, meaning there is a reasonable probability that the outcome of the trial would have been different. Under the Pennsylvania Supreme Court’s decision in Commonwealth v. Sneed, where the claim involves the failure to call a witness, the petitioner must also show that the witness existed, that the witness was available and willing to testify for the defense, and that counsel knew of or should have known of the witness.

The Court’s Ruling: Character Witnesses Were Critical in a He Said/She Said Case

At the hearing, it was uncontested that character witnesses existed, that they were available and willing to testify for the defense, and that trial counsel knew about them. Trial counsel testified that he chose not to call them because he did not want to distract the jury from his trial strategy, which was to argue that it would have been impossible for J.R. to sexually assault the complainant in the back seat of a small, moving car. He also acknowledged that he never consulted with J.R. about the decision.

The PCRA court rejected that explanation. As the court observed, the defense actually presented at trial was not impossibility. J.R. testified that the sexual contact was consensual, which made the trial a classic he said/she said credibility contest between J.R. and the complainant. Trial counsel himself recognized that the verdict would turn on the jury’s assessment of those two witnesses, yet he neither consulted his client about ways to bolster his credibility nor called any of the available character witnesses who could have done so. Calling character witnesses could not have undermined the defense theory because the defense theory hinged entirely on J.R.’s credibility.

Pennsylvania law treats character evidence as substantive evidence, not a mere formality. Evidence of a defendant’s good reputation may, by itself, create a reasonable doubt and require a verdict of not guilty. The principle carries particular weight in sexual assault cases. As the Pennsylvania Supreme Court explained in Commonwealth v. Weiss, in a case “where there are only two direct witnesses involved, credibility of the witnesses is of paramount importance, and character evidence is critical to the jury’s determination of credibility.” Relying on Weiss and the Superior Court’s recent decision in Commonwealth v. Alceus, the court concluded that trial counsel had no reasonable basis for failing to call character witnesses and that J.R. suffered prejudice as a result.

The court denied the separate claim concerning the impeachment of the driver. Although it agreed that the claim had arguable merit because trial counsel knew about the crimen falsi convictions and chose not to use them, the court found that counsel had a reasonable strategic basis for that decision and that no prejudice resulted. The driver did not witness the alleged assault, and his testimony was cumulative of the testimony of the other Commonwealth witnesses. The new trial was therefore granted on the character witness claim.

The Result

The court granted the PCRA petition and ordered a new trial. Because J.R. had previously posted $250,000 bail and had already served approximately twenty-two months of his fifty-four month minimum sentence, the court set bail at $250,000 unsecured pending the retrial, with the condition that he have no contact with the complainant. That ruling allows J.R. to be released from state prison while the case is pending.

This decision highlights the critical role that character evidence plays in Pennsylvania criminal trials. In a sexual assault case that comes down to the word of the complainant against the word of the defendant, evidence of the defendant’s reputation for peacefulness and non-violence may be the only corroboration the defense can offer, and the law recognizes that it may by itself create a reasonable doubt. Trial counsel must investigate potential character witnesses, consult with the client about whether to call them, and have a real strategic reason before leaving that evidence on the table. When counsel fails to do so, the PCRA may provide a path to a new trial.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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 5/12/26 Zak Goldstein 5/12/26

PCRA Court Grants New Trial for Attorney Goldstein’s Client in Internet Contraband Case Following Successful Appeal

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, has secured a new trial for his client, M.D., in a long-running child pornography case in the Philadelphia Court of Common Pleas. Following the Pennsylvania Superior Court’s July 2025 decision reversing the denial of M.D.’s Post Conviction Relief Act petition and remanding the matter, the PCRA court entered an order on April 10, 2026 granting PCRA relief and awarding M.D. a new trial. The PCRA court also granted bail pending any further appeals, meaning that after years of incarceration on the underlying conviction, M.D. will be released from custody while the case proceeds.

The Commonwealth filed a notice of appeal from the order granting PCRA relief on April 22, 2026, and the PCRA court issued a supplemental opinion on April 27, 2026 explaining its decision.

Background

M.D. was convicted at a second jury trial of dissemination of child pornography, fifteen counts of possession of child pornography, and one count of criminal use of a communication facility. His first trial had ended in a mistrial because the jury could not reach a unanimous verdict. The trial court sentenced him to an aggregate term of five to ten years’ incarceration, followed by seven years of reporting probation. The Superior Court affirmed the judgment of sentence on direct appeal, and the Supreme Court of Pennsylvania denied allowance of appeal.

M.D. then filed a timely PCRA petition raising claims of ineffective assistance of trial and appellate counsel. The PCRA court appointed new counsel, who amended the petition, and the PCRA court ultimately dismissed it. M.D. then retained Attorney Goldstein for the appeal from the denial of his first PCRA petition.

On the first appeal, Attorney Goldstein raised layered claims of ineffective assistance — arguing both that trial counsel mishandled key aspects of the defense and that initial PCRA counsel failed to raise those issues in the amended PCRA petition. In particular, PCRA counsel had not argued that trial counsel was ineffective for repeatedly informing the jury that, when the police executed a search warrant at his home and read him Miranda warnings, M.D. declined to give a statement, refused to sign the Miranda waiver, and asked to speak with a lawyer.

The Superior Court initially remanded the case for an evidentiary hearing on the layered claims of ineffectiveness. On remand, the PCRA court heard testimony from trial counsel and from prior PCRA counsel and again denied the petition. Attorney Goldstein appealed a second time.

The Superior Court’s July 2025 Decision

In a non-precedential decision filed July 28, 2025, the Superior Court reversed in part and remanded. The Court held that M.D. had established all three prongs of the ineffective assistance test as to trial counsel’s repeated references to his pre-arrest, post-Miranda silence.

The Court explained that trial counsel’s injection of M.D.’s silence into the case was not “circumspect” or limited to its context. Instead, trial counsel referenced M.D.’s silence in her opening statement and twice elicited testimony about it on cross-examination of officers. Although trial counsel testified that her strategy was to portray M.D.’s silence as the conduct of an innocent person who understood the court system and reasonably wanted to consult a lawyer, the Superior Court rejected that strategy as unreasonable. The Court reasoned that omitting any mention of his silence offered a substantially greater chance of success, and that “most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt,” citing Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982).

On prejudice, the Superior Court found a reasonable probability that the jury inferred guilt from M.D.’s invocation of his right to remain silent while police executed a search warrant for devices suspected of containing child pornography. The Court concluded that confidence in the verdict was undermined and remanded for the PCRA court to determine whether M.D. had also satisfied the prongs of ineffectiveness as to initial PCRA counsel for failing to raise the issue.

The Commonwealth then filed a petition for allowance of appeal in the Pennsylvania Supreme Court. The Supreme Court denied that petition on February 6, 2026, leaving the Superior Court’s decision intact.

The PCRA Court Grants a New Trial on Remand

On remand, the PCRA court was tasked with deciding whether initial PCRA counsel had been ineffective for failing to raise trial counsel’s improper references to M.D.’s silence in the amended PCRA petition. In a supplemental opinion filed April 27, 2026, the PCRA court explained that, in light of the Superior Court’s holding that the underlying claim against trial counsel was meritorious, it was constrained to find that initial PCRA counsel was ineffective as well.

The PCRA court reasoned that because the Superior Court had already determined that trial counsel had no reasonable basis for her strategy and that M.D. was prejudiced as a result, initial PCRA counsel likewise had no reasonable basis for omitting that claim from the amended petition, and M.D. had necessarily satisfied the prejudice prong of his layered claim. The PCRA court therefore granted PCRA relief and ordered a new trial.

Equally important for M.D. and his family, the PCRA court also granted bail pending any further appeals. As a result, M.D. is set to be released from state prison while the Commonwealth’s appeal proceeds, rather than continuing to serve a sentence that has now been vacated.

Why This Result Matters

This case illustrates several important points about Pennsylvania post-conviction practice. First, layered claims of ineffective assistance — those that allege both that trial counsel was ineffective and that prior PCRA counsel was ineffective for failing to raise the underlying claim — can succeed even after a PCRA petition has already been litigated and denied. A petitioner who is represented by new counsel on appeal from the denial of a first PCRA petition may be able to preserve and litigate claims that earlier counsel overlooked.

Second, the case underscores how dangerous it can be for defense counsel to introduce evidence of a client’s post-Miranda silence, even when counsel believes the silence supports an innocence narrative. Pennsylvania courts have long recognized that references to an accused’s exercise of the right to remain silent may jeopardize the presumption of innocence. Commonwealth v. Molina, 33 A.3d 51 (Pa. Super. 2011) (en banc), aff’d, 104 A.3d 430 (Pa. 2014); Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982). As the Superior Court emphasized here, lay jurors are more likely to view an invocation of the Fifth Amendment as a badge of guilt than as a sign of innocence.

Finally, the bail order is a meaningful and often overlooked aspect of post-conviction litigation. When a PCRA court grants a new trial, the conviction and sentence are vacated. Once those have been vacated, the trial court has discretion to set bail pending any appeal by the Commonwealth. Continued incarceration is not automatic, and in many cases it is appropriate for the client to be released while the appellate process plays out. This is important given that a Commonwealth appeal from an order granting a new trial can take years.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania?

If you are facing criminal charges, under investigation, or considering an appeal or PCRA petition, our firm can help. Goldstein Mehta LLC has successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, including in cases involving 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, and we frequently spot issues and defenses that other lawyers miss. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/11/26 Zak Goldstein 5/11/26

PA Superior Court Continues Eliminating Strunk’s Limits on the Unlawful Contact With a Minor Statute

The Pennsylvania Superior Court has decided the case of Commonwealth v. Smith, 2026 PA Super 69, affirming two convictions for unlawful contact with a minor on remand from the Pennsylvania Supreme Court. The Supreme Court had sent the case back so the Superior Court could reconsider it in light of Commonwealth v. Strunk, the 2024 decision that narrowed 18 Pa.C.S.A. § 6318 to communications designed to induce or otherwise further the sexual exploitation of a child. On remand, the Superior Court read Strunk to permit a Section 6318 conviction based on a few words the defendant spoke during the physical assault itself. That reading is hard to square with what the Supreme Court actually said in Strunk, and it deserves another look from the Supreme Court.

The Facts of Smith

The defendant was a frequent visitor to a Philadelphia home where two young girls lived. He was a close family friend, and the children referred to him as an uncle. Both girls testified to repeated sexual abuse in the home over a period of years. Some of those acts involved no communication at all. A few of them involved short verbal directives: the defendant told both girls to perform oral sex on him, and on one occasion he told one of the girls to lie down on a table in the basement before he assaulted her.

A jury convicted the defendant of multiple sexual offenses against both girls, including two counts of unlawful contact with a minor under Section 6318. The trial court imposed an aggregate sentence of 30 to 60 years’ incarceration followed by 10 years’ probation.

What Strunk Actually Held

Strunk was a real change in the law. For years, the Superior Court had treated “contact” under Section 6318 broadly enough that the statute essentially functioned as an add-on count whenever a defendant physically touched a child in a sexual way. The Supreme Court rejected that reading. It held that Section 6318 does not criminalize inappropriate touching of minors at all—other statutes do that—and that the statute is fundamentally about communication designed to induce or otherwise further the sexual exploitation of a child. The Court described Section 6318 as essentially an anti-grooming statute. The point of the law, in other words, is to capture conduct that leads up to an assault: the manipulation, the isolation, the inducement, and to give prosecutors a charge for that preparatory conduct that the rest of the Crimes Code does not otherwise reach.

In Strunk itself, the conviction was reversed because there was no communication. The defendant assaulted the victim while she was asleep or feigning sleep and never spoke to her. The Supreme Court held that the jury would have had to speculate to find any communicative act, and Section 6318 therefore did not apply.

The Superior Court’s Decision in Smith

On remand, the Superior Court affirmed the unlawful contact convictions. It distinguished Strunk on the ground that, unlike the sleeping victim in Strunk, the children here heard the defendant say a few words to them. He told them to perform oral sex. He told one of them to lie on the table. According to the Superior Court, those statements were communications designed to induce or further the sexual exploitation of the children and were therefore enough to support the Section 6318 convictions, even though each statement was made in the middle of the very assault it supposedly induced.

The Court also rejected the defendant’s argument that a Section 6318 communication has to be temporally separated from the assault itself. It read recent Superior Court cases, including one where a defendant screamed at his daughter to come into a trailer before assaulting her, and another where a defendant told a teenage passenger to sit in the front seat of his car before allegedly assaulting her, as standing for the proposition that any communication that places a victim in position for an assault is enough, regardless of when it is made.

Why This Reading of Strunk Is a Problem

The whole point of Strunk was that Section 6318 is not supposed to be a free additional count tacked on to every sexual assault of a child. The statute is meant to capture the kind of conduct that precedes and sets up the assault—grooming, inducement, manipulation, getting the victim alone or in a particular place. That kind of conduct is genuinely separate from the act of assault itself, and that separation is what makes Section 6318 something more than a redundant add-on to the underlying sex offense.

A statement made during the assault such as telling a child to lie down at the moment the assault is happening, or demanding oral sex as part of the act, does not fit that description. It is the offense, not a communication designed to facilitate the offense. As the defendant pointed out in his supplemental brief, if the verbal demand to perform oral sex is enough to support a separate Section 6318 conviction, then so is every other utterance during every sexual assault, and the statute really does become the add-on offense Strunk said it was not. That argument deserved more weight than the Superior Court gave it.

There is a meaningful difference between the cases the Superior Court cited and what happened in Smith. The screamed directive to come into a trailer and sleep in the defendant’s bed at least occurred before the assault began and arguably moved the victim into a place where the assault could happen, and sleeping in the bed is potentially sexual. A statement made in the middle of penetrating a child is not facilitating anything; it is part of what is being done. The Superior Court is treating those two situations the same, and in doing so it is collapsing the line that Strunk tried to draw.

The Supreme Court Should Take Another Look

The Supreme Court warned in Strunk itself that the decision did not resolve every question about what communications qualify under Section 6318, and the Court invited the lower courts to develop the doctrine. The Superior Court’s answer so far has been to read Strunk as narrowly as possible. The court is preserving Section 6318 essentially intact in any case where a defendant said anything at all to a victim. That cannot be what the Supreme Court meant. The right rule, and the one that actually follows from Strunk, is that the communication has to be separate from the assault. It must be a step taken to bring the assault about, not the assault itself.

Until the Supreme Court takes one of these cases and says so clearly, defense counsel should keep pressing the point. Strunk is still useful: where there is no communication at all, Section 6318 still does not apply. And where the only “communication” the Commonwealth can point to is something the defendant said in the middle of the physical act, the sufficiency argument is a real one, even if, for now, the Superior Court is not buying it.

Facing Criminal Charges? We Can Help.

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

Zak Goldstein 4/30/26 Zak Goldstein 4/30/26

PA Superior Court: Jurors Briefly Seeing Victim’s Service Dog Outside Courthouse Does Not Warrant New Trial

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Roberts, 2026 PA Super 65 (March 30, 2026), affirming the defendant's conviction and holding that the trial court did not abuse its discretion in denying the defendant's motion for a new trial based on jurors briefly seeing the complainant’s service dog outside the courthouse. The court found that this incidental and fleeting exposure did not create a reasonable likelihood of prejudice under the Carter by Carter v. U.S. Steel Corp. framework.

The Facts of Commonwealth v. Roberts

The defendant was employed as a band director at Crestwood Area High School in Luzerne County when he was charged with inappropriately touching a 15-year-old student, K.F. The complainant had participated in the band program playing saxophone and clarinet. According to the complainant’s testimony, when she was in eighth grade, the defendant had a one-on-one class with her where she was the only student. She testified that during these sessions, the defendant began sitting close to her and repeatedly touching her thigh in a way that made her feel uncomfortable. The complainant routinely pulled away, but the defendant persisted.

When the complainant entered ninth grade, the defendant appointed her as the leader of the clarinet section in marching band. Prior to performances, band members would routinely assist each other in making sure their uniforms looked sharp. The defendant allegedly used these opportunities to personally adjust the complainant's uniform, with his hands lingering over her body as he adjusted her sash and cape.

The complainant’s father died in February of her ninth grade year. The defendant unexpectedly attended the wake, leaned in, hugged the complainant, and commented that he could hug her because they were not in school. The complainant testified that this exchange made her uncomfortable.

By her sophomore year, the defendant had promoted the complainant to drum major, the second-highest position in the band hierarchy. During that year, as band members were filing out of the band room to go to the practice field, the defendant allegedly held the complainant back from joining her classmates, telling her he had something to say. While standing behind her in an alcove outside the band room doors, he allegedly grabbed her buttocks and then placed his hands on her shoulders and told her in a quiet voice that if she told anyone, he would make her life hell. When the defendant was eventually placed on leave from his position for an unrelated reason, the complainant reported the conduct to police.

The defendant was charged with institutional sexual assault, corruption of minors, indecent assault of a person less than 16 years of age, indecent assault by forcible compulsion, and harassment. A jury trial began on June 25, 2024, and the jury convicted the defendant of all charges on June 27, 2024.

The Service Dog Issue

Before trial, both parties and the trial court discussed the fact that the complainant had a service dog. Outside the presence of the jury, the parties agreed to a number of measures designed to minimize any potential prejudice from the jury learning about the service dog. Under this agreement, the service dog would not accompany the complainant to the witness stand while she testified. The dog would remain in the hallway with the complainant's mother at all times, so that there would be no inference that the dog belonged to the complainant. When the complainant, her mother, and the dog were in the courtroom, they would be seated prior to the jurors entering and would sit in an area least visible from the jury box. The defense raised concerns on the record that jurors might draw inferences from the presence of the service dog, and the trial court acknowledged those concerns, explaining that the agreed-upon measures were specifically designed to limit the jury’s exposure.

During trial, these prophylactic measures were followed, and there was no issue with the service dog inside the courtroom. However, on June 27, 2024, the Times Leader newspaper published an article reporting that despite efforts to keep the jury from seeing the service dog, several jurors exited the courthouse for a lunch break at the same time the complainant and her service dog were also leaving the building.

After the jury returned a guilty verdict on all counts, defense counsel filed a motion for a new trial on July 9, 2024, arguing that the agreed-upon measures had been violated because jurors saw the complainant with her service dog outside the courthouse. The trial court held a hearing on August 21, 2024, at which a reporter testified and security video footage was reviewed. The reporter testified that at around noon on June 27, 2024, he was exiting the courthouse and the complainant was a few people in front of him, also exiting, while holding her service dog by the leash. He testified that two jurors were behind the complainant in the area of the courthouse exit at the time. After reviewing the evidence and testimony, the trial court denied the motion for a new trial.

The trial court sentenced the defendant to an aggregate term of six to 23 ½ months in jail followed by three years of probation. After the denial of his post-sentence motion, the defendant appealed to the Superior Court.

The Superior Court’s Analysis

The Superior Court began by reviewing the standard for granting a new trial based on extraneous influences on a jury. The court cited Commonwealth v. Wardlaw, 249 A.3d 937 (Pa. 2021), for the proposition that a new trial motion is designed to bring before the trial court defects in the prior proceedings or after-discovered evidence which require that the verdict be set aside. The court also noted that the standard of review for such motions is highly deferential to the trial court, which will not be reversed absent a clear abuse of discretion or an error of law, citing Commonwealth v. Morales, 326 A.2d 331 (Pa. 1974).

The court then turned to the framework for evaluating claims of extraneous influence on the jury. The court discussed Pratt v. St. Christopher's Hospital, 866 A.2d 313 (Pa. 2005), and the seminal case of Carter by Carter v. U.S. Steel Corp., 604 A.2d 1010 (Pa. 1992), which established that a new trial will be granted in cases of extraneous influence on a jury only where there is a reasonable likelihood of prejudice. In determining reasonable likelihood of prejudice, the trial court should consider: 1) whether the extraneous influence relates to a central issue in the case or merely a collateral issue; 2) whether the extraneous influence provided the jury with information they did not have before them at trial; and 3) whether the extraneous influence was emotional or inflammatory in nature.

Applying this framework, the Superior Court affirmed the trial court’s denial of the new trial motion. The court found that the trial court had held an appropriate hearing, heard testimony from the reporter who witnessed the incident, and reviewed the security footage. The trial court concluded that the jurors’ view of the service dog in the complainant’s control was incidental and fleeting. Importantly, because the complainant’s mother was present during the incident and was holding the dog’s leash along with the complainant, the “designed ambiguity” regarding who owned the service dog was preserved. In other words, even if jurors saw the dog, it would not have been clear that the dog belonged specifically to the complainant rather than her mother. The Superior Court found no abuse of discretion in the trial court’s conclusion that the brief encounter outside the courthouse did not create a reasonable likelihood of prejudice in a typical, objective juror.

The judgment of sentence was affirmed. This result is unfortunately not that surprising as both the Superior Court and the Supreme Court have actually blessed the use of service dogs while witnesses testify on the stand. There are rules that govern the use of such dogs, and the jurors are not supposed to be able to see the dog while the witness testifies, but if a witness may have a dog with them on the stand at times, then it was very unlikely that the Court was going to reverse a conviction where jurors simply may have seen the witness with a dog while exiting the courthouse.

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