Philadelphia Criminal Defense Blog

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.

Facing Criminal Charges? We Can Help.

Goldstein Mehta Criminal Defense — Goldstein Mehta LLC Criminal Defense

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 4/25/26 Zak Goldstein 4/25/26

PA Superior Court: Police Do Not Need a Warrant to Get Your Internet Subscriber Info

Criminal Defense Lawyer Zak T. Goldstein, Esquire

On April 22, 2026, the Pennsylvania Superior Court decided Commonwealth v. Zealor, 2026 PA Super 81, holding that police and prosecutors do not need a search warrant to obtain subscriber information, payment information, and internet connection records from an internet service provider. Instead, prosecutors can get this information through an “administrative subpoena” — a request signed by a Deputy Attorney General rather than a judge — under 18 Pa.C.S.A. § 5743.1.

The Facts of Zealor

Pennsylvania State Police were watching a peer-to-peer file-sharing network called BitTorrent for people sharing child pornography. They received a tip about a particular IP address (essentially the “phone number” of an internet connection) and downloaded files from it that turned out to include child sexual abuse material.

A Deputy Attorney General then sent an administrative subpoena to Comcast under 18 Pa.C.S.A. § 5743.1, a Pennsylvania statute that lets prosecutors obtain certain subscriber information from internet providers. Comcast told them the IP address belonged to a company called Digital Media, LLC, the company that provided the internet service for an apartment complex in Norristown. A second administrative subpoena to Digital Media identified the specific tenant whose connection was being used to share the files. Police then obtained a search warrant for that tenant’s apartment, found tens of thousands of images and videos, and the defendant was ultimately convicted on fifty counts of possessing child sexual abuse material.

Before trial, the defendant moved to suppress all of the evidence, arguing that police needed an actual search warrant and not just a prosecutor-signed subpoena to get the information from his internet provider. The Superior Court disagreed and affirmed his conviction.

Why the Court Said No Warrant Was Needed

The court relied mainly on its earlier decision in Commonwealth v. Kurtz, 294 A.3d 509 (Pa. Super. 2023), aff’d, 348 A.3d 133 (Pa. 2025), and on federal cases like United States v. Christie, 624 F.3d 558 (3d Cir. 2010). The court reasoned that under the “third-party doctrine,” when you voluntarily hand information over to a third party like your bank or your internet provider you generally lose your right to keep it private from the government, and so the defendant had no right of privacy here.

Applying that doctrine, the court held there is no reasonable expectation of privacy in:

• Your name, address, and basic payment information with your internet provider;

• Your IP address; or

• The connection logs showing which other IP addresses you connected to.

The court also distinguished Carpenter v. United States, 585 U.S. 296 (2018), the U.S. Supreme Court case that required warrants for cell phone location data, by reasoning that location data is generated automatically just by your phone being on, while peer-to-peer file sharing involves actively choosing to connect to other users.

Finally, the court rejected the argument that prosecutors could not subpoena out-of-state companies like Comcast, holding that the statute itself allows service on foreign corporations.

The Issue May Be Subject to Further Review

Even though Zealor is a loss, this is still a live issue, and we expect it to keep being litigated.

First, the Pennsylvania Supreme Court’s decision in Kurtz, which the Zealor court relied on so heavily, was a fractured plurality. Three justices agreed there was no expectation of privacy, three concurred on different grounds, and Justice Donohue dissented. A plurality decision does not bind future courts the way a majority opinion does, so the foundation for Zealor is shakier than it looks. Additionally, Kurtz dealt with the IP address itself, whereas this case deals with the information behind an IP address, making Kurtz distinguishable.

Second, and more importantly, the defendant in Zealor did not really argue that the Pennsylvania Constitution provides more privacy protections than the federal Fourth Amendment. The Pennsylvania Supreme Court has repeatedly held that our state constitution provides broader privacy rights than federal law in important areas including bank records and the rejection of the federal “good faith exception” to the exclusionary rule. See Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). The defendant in Zealor did not develop that kind of argument, and the court therefore analyzed the state and federal questions together as if they were the same. They are not.

That leaves the door open for additional challenges to these “subpoenas,” which are really just demand letters. A future defendant who actually makes a strong Pennsylvania Constitution argument and asks the Pennsylvania Supreme Court to require a warrant for this kind of internet subscriber information as a matter of state law would be in a much better position. The Pennsylvania Supreme Court could also grant review in this case or in another case which preserves the stronger state constitutional issue.

The Bottom Line

Zealor is a setback for these challenges, but it may not be the final word. If you have been charged in a case where police started by sending an administrative subpoena to your internet provider, your attorney should likely still be challenging these subpoenas, and most importantly, the attorney should make both Fourth Amendment and Pennsylvania Constitutional arguments. The law in this area is unsettled and changing, and the strongest version of the privacy argument has not yet been decided by the Pennsylvania Supreme Court.

Facing criminal charges? We can help.

Zak Goldstein 4/11/26 Zak Goldstein 4/11/26

Attorney Goldstein Wins IDSI Appeal: PA Superior Court Dismisses Conviction on Due Process Grounds

Case Result: Conviction Reversed by the Superior Court of Pennsylvania

Attorney Zak Goldstein recently won an important appeal before the Superior Court of Pennsylvania, obtaining a full reversal of his client D.M.’s convictions for involuntary deviate sexual intercourse (IDSI) and corruption of minors. In Commonwealth v. D.M., the Superior Court held that the Commonwealth violated D.M.’s due process rights by failing to establish the date of the alleged offense with sufficient particularity under Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975). The court also found that the trial court abused its discretion by consolidating D.M.’s case with his co-defendants’ cases for trial, though it did not need to reach that issue given the Devlin reversal.

The Facts of the Case

D.M. was one of three brothers tried together in Lackawanna County on charges stemming from allegations made by a single complainant, B.P. The complainant alleged that D.M. had assaulted her on a single occasion when she was sixteen years old. She did not report the allegations until October 2019, which was nearly two decades after the events supposedly occurred.

The Commonwealth originally charged D.M. with offenses occurring over a five-year window between January 1, 2003 and December 31, 2007. After D.M. filed pretrial motions challenging the vague timeframe, the Commonwealth filed amended informations narrowing the period first to one year (August 25, 2005 to August 24, 2006), and ultimately proceeding to trial on two charges, IDSI and corruption of minors, within that same one-year window.

Trial counsel argued from the pretrial stage that even a one-year window was far too broad to satisfy due process. D.M.’s pretrial motions objected that the vague timeframe made it impossible to present an alibi defense or call witnesses in support of one. The trial court denied those motions, finding D.M.’s reliance on Devlin to be “misplaced.” D.M. also moved to sever his trial from his co-defendants’ cases. The trial court denied that motion as well.

Following a three-day trial, a jury convicted D.M. of IDSI and corruption of minors. The court sentenced him to 5-10 years’ imprisonment.

The Due Process Claim: Failure to Fix the Date of the Offense

On appeal, the Superior Court found D.M.’s Devlin argument meritorious and dispositive. In Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975), the Pennsylvania Supreme Court reversed a conviction where the only proof at trial was that the crime occurred sometime within a fourteen-month period, holding that this failed to meet the “sufficient particularity” standard and violated fundamental fairness.

The Superior Court then carefully distinguished D.M.’s case from a series of post-Devlin decisions in which courts had afforded the Commonwealth greater latitude, including Commonwealth v. Groff, 548 A.2d 1237 (Pa. Super. 1988), Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa. Super. 2007), Commonwealth v. Niemetz, 422 A.2d 1369 (Pa. Super. 1980), Commonwealth v. Renninger, 269 A.3d 548 (Pa. Super. 2022), and Commonwealth v. Benner, 147 A.3d 915 (Pa. Super. 2016). In each of those cases, courts had found the broader timeframe acceptable because the victims were very young children who could not be expected to recall specific dates, the allegations involved a continuing course of conduct with multiple assaults, or the Commonwealth presented additional evidence from other witnesses that helped narrow the timeframe.

D.M.’s case was critically different. B.P. was sixteen at the time of the alleged offense — well past childhood — and therefore had the capacity to recall temporal details. The allegation involved only a single, isolated incident, not an ongoing course of abuse. And the Commonwealth made no conscientious effort to help B.P. narrow the timeline at trial. B.P. provided detailed testimony about the location, what was said, the features of D.M.’s car, and what she did afterward, yet she could not tie the incident to any identifiable temporal marker — a season, a holiday, a school year, or her birthday — that would have narrowed the one-year window. She testified only that it happened on a “normal” day. Even the Commonwealth’s own affidavit of probable cause had originally placed the incident during “the fall months” after B.P.’s sixteenth birthday, but B.P. did not testify to that at trial.

The court also rejected the Commonwealth’s argument that testimony from another witness narrowed the timeframe. The witness had testified that D.M. made a statement to him about B.P. in late 2005 or early 2006, but the court found this still left a period spanning too many months to fix the date with the constitutionally required level of certainty. The court further noted that the witness’s statement actually related to vaginal intercourse, which was a different act entirely from the IDSI charged in the criminal information.

The over-thirteen-year delay in reporting further compounded the due process problem. The court noted that this delay prejudiced D.M.’s ability to find witnesses or other evidence that could corroborate a defense, making the case arguably harder to defend than in Devlin itself, where there was essentially no delay between the alleged offense and the report to police. The Court therefore reversed the trial court’s decision not to dismiss the case and dismissed the conviction.

The Improper Joinder Issue

Although the Devlin ruling was dispositive of D.M.’s appeal, the opinion also addressed the joinder issue in the context of a co-defendant’s appeal — and the court’s analysis makes clear that consolidating D.M.’s trial with his brothers’ cases was an abuse of discretion. D.M. had raised this same issue on appeal, and the court noted in a footnote that it did not need to reach D.M.’s severance argument given its decision to reverse on Devlin grounds.

Under Pa.R.Crim.P. 582, defendants charged in separate informations may be tried together only if they are alleged to have participated in the same act, transaction, or series of acts or transactions constituting an offense. Under Pa.R.Crim.P. 583, severance is required if a party may be prejudiced by the joinder.

The court found that while it was permissible to try D.M.’s two brothers together because the allegations against them arose from a single chain of events on the same day, D.M.’s case was entirely different. The allegations against D.M. involved a separate incident that took place in a different location, involved different conduct, and occurred approximately two years after the allegations against his brothers. There was no conspiracy or corrupt organization charge tying them together, and D.M. had nothing to do with the conduct alleged against his brothers.

The court found that joining D.M.’s trial with his brothers’ trial allowed the Commonwealth to introduce evidence against D.M. that tainted his brothers’ cases and vice versa. The above witness’s testimony, for example, was relevant only to D.M. but was heard by the jury deciding the brothers’ cases as well. The court noted that the trial court itself appeared to concede that the witness testimony was only relevant against D.M. and not his co-defendants.

Perhaps most critically, the court found that the prosecutor’s closing argument compounded the prejudice by repeatedly lumping all three brothers together. The prosecutor referred to the brothers as “three aggressors,” likened them to institutions known for protecting sexual abusers, and argued that B.P. had to come forward because “they” still had power over people who came to the store. These remarks encouraged the jury to find the defendants guilty by association rather than based on the evidence specific to each individual case. The court cited Commonwealth v. Hamilton, 303 A.3d 823 (Pa. Super. 2023), for the principle that even where there is some overlapping evidence between co-defendants, severance is required when the evidence of one defendant’s crimes is irrelevant and prejudicial to another defendant’s case.

Why This Case Matters

This published decision is a significant victory for due process rights in Pennsylvania. It reaffirms that even in cases involving serious allegations and delayed reporting, the Commonwealth cannot charge a defendant with committing a crime at some unknown point during a year-long span ~15 years ago and expect a conviction to stand. The government bears the burden of narrowing the timeframe with reasonable certainty so that the defendant has a fair opportunity to prepare a defense. When the complainant was old enough to recall temporal details, the alleged conduct was a single isolated incident, and the Commonwealth made no effort to narrow the timeframe through its own investigation, due process requires reversal.

The opinion’s joinder analysis is equally important for criminal defense practitioners. It establishes that simply sharing a last name and a complainant is not enough to justify consolidation. When the alleged offenses are separated in time by years, involve different conduct, and occur in different locations, the trial court abuses its discretion by forcing defendants to trial together. This is particularly true where the prosecutor exploits the joinder to encourage guilt by association.

The opinion also provides a comprehensive survey and analysis of the entire Devlin line of cases, making it a valuable roadmap for defense attorneys evaluating due process challenges in cases involving vague or broad charging timeframes.

Facing Criminal Charges or a Wrongful Conviction?

If you or a loved one has been wrongfully convicted or believes that the prosecution withheld evidence in your case, we can help. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our experienced criminal defense lawyers are typically available for same-day phone consultations and in-person meetings so that we can begin investigating your case, obtaining exculpatory evidence, and planning your defense. Call 267-225-2545 for a free criminal defense strategy session.

Zak Goldstein 2/7/26 Zak Goldstein 2/7/26

PA Supreme Court: Trial Court May Not Consolidate Separate Sexual Assault Cases Based Solely on “Similar” Allegations, and Rape Kits Are Testimonial Under the Confrontation Clause

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Walker, holding that the trial court abused its discretion when it consolidated three separately-charged CODIS hit rape cases for a joint trial under the common plan, scheme, or design exception to the rule against propensity evidence.

The Court also held that the admission of rape kit reports without testimony from the nurse examiners who actually prepared them violated the defendant's constitutional right to confrontation. This is a landmark decision that significantly tightens the standard for when the prosecution may try separate offenses together and provides important new protections for defendants in sexual assault cases.

The Facts of Commonwealth v. Walker

In July of 2019, the defendant was arrested and charged with the rape of three different women on three separate occasions — P.C. in January of 2011, T.A. in December of 2014, and B.H. in January of 2015. Each complainant underwent a sexual assault examination after the attack, and DNA from the perpetrator was recovered and uploaded to the Combined DNA Index System (CODIS). In December of 2018, a CODIS search revealed that the male DNA samples from all three victims matched, and that DNA profile was later linked to Walker.

In each case, the defendant met the victim, a stranger, on a public street in Philadelphia, convinced her to follow him to a secluded area, and then sexually assaulted her. However, the specific details of each assault varied significantly. In one case, the perpetrator used a knife; in another, he punched the victim in the face; in the third, he struck the victim with a tire iron. He robbed only one of the three victims. One rape occurred near midnight while the other two occurred during the late morning. Each assault took place in a different Philadelphia neighborhood.

The Commonwealth moved to consolidate all three cases for a joint trial, arguing that the evidence of each assault would be admissible at a trial for the others because the assaults shared sufficient similarities to establish a common plan, scheme, or design. Despite the defendant’s objection, the trial court granted the Commonwealth's motion.

Prior to trial, the defendant also filed a motion in limine seeking to preclude the Commonwealth from introducing the rape kit reports prepared by the sexual assault nurse examiners at the Philadelphia Sexual Assault Response Center (PSARC) for two of the three victims. The Commonwealth acknowledged that the nurses who actually performed the examinations no longer worked at PSARC. Instead, the prosecution planned to introduce the reports through the testimony of PSARC's nurse manager and clinical director who did not personally conduct any of the examinations. The trial court denied the defendant’s motion.

At trial, the defendant was convicted on numerous charges including rape, involuntary deviate sexual intercourse, and sexual assault. He was sentenced to an aggregate of 28 to 56 years' imprisonment and classified as a Tier III sex offender with lifetime registration under SORNA. The Superior Court affirmed, and the Supreme Court granted allowance of appeal.

The Supreme Court's Ruling on Consolidation

The Pennsylvania Supreme Court reversed, finding that the trial court abused its discretion in consolidating the three cases. Under Pennsylvania Rule of Criminal Procedure 582, separate offenses may be tried together only if the evidence of each offense would be admissible in a separate trial for the other. The key question was therefore whether evidence of the other rapes would have been admissible under the common plan, scheme, or design exception to Pennsylvania Rule of Evidence 404(b), which generally bars the prosecution from introducing evidence of a defendant's other bad acts to show criminal propensity.

Critically, the Court took the opportunity to reshape the law on this issue. Over the years, Pennsylvania courts had applied an increasingly diluted version of the common plan, scheme, or design exception. What started as a narrow exception, requiring either a true overarching plan linking crimes together or a modus operandi so distinctive as to be a signature, had devolved into a vague “logical connection” test that merely required “sufficient similarities” between the crimes. The Court recognized that this relaxed standard effectively gutted Rule 404(b)’s core protection against propensity evidence.

Writing for the majority, Justice McCaffery abrogated the “logical connection” test and returned to the original two-pronged framework from Shaffner v. Commonwealth, 72 Pa. 60 (1872). Going forward, the Commonwealth may consolidate separately-charged offenses under the common plan, scheme, or design exception only where it can establish either: (1) the offenses constitute “signature crimes,” meaning the facts are so unique and distinctive that they must have been committed by the same perpetrator; or (2) the offenses were linked to achieve a common goal, meaning the bad acts are part of an integrated plan to accomplish a specific objective.

Applying this newly clarified standard to the defendant’s case, the Court found that neither exception was satisfied. First, the three rapes did not qualify as signature crimes. While all three involved stranger assaults, the specific details varied considerably. The perpetrator used different weapons (or none at all), initiated contact differently, and committed the assaults in different neighborhoods at different times. These were, as the Court put it, characteristics typical of any stranger rape case, not a unique signature. Second, there was no evidence of a preconceived plan linking the three crimes together to achieve a common goal. The evidence simply showed that the perpetrator raped women when presented with the opportunity to do so. A general desire to commit the same type of crime is not the kind of common plan or scheme that Rule 404(b) contemplates.

The Court also emphasized an important procedural point. The decision to consolidate cases is made pretrial, before the defendant has revealed any defense strategy. The Commonwealth cannot justify consolidation based on its anticipatory rebuttal of a defense, such as a consent defense, that the defendant has not yet raised. A defendant has no duty to present evidence and may instead rely on the presumption of innocence and the Commonwealth's burden of proof.

The Supreme Court’s Ruling on the Rape Kit Reports

The Supreme Court also ruled in the defendant’s favor on the Confrontation Clause issue. The Sixth Amendment and Article I, Section 9 of the Pennsylvania Constitution guarantee criminal defendants the right to confront the witnesses against them. In a line of cases including Crawford v. Washington, Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico, and most recently Smith v. Arizona, the United States Supreme Court has made clear that the Confrontation Clause applies to forensic reports and that the prosecution may not introduce testimonial hearsay, including forensic reports, without providing the defendant an opportunity to cross-examine the person who actually prepared the report.

The Pennsylvania Supreme Court held that rape kit reports are testimonial in nature. The reports are formally titled “Sexual Assault Forensic Examination Forms,” and the very word “forensic” signals their evidentiary purpose. The reports were created primarily to establish past events and collect evidence relevant to a potential criminal prosecution, not simply to provide medical treatment. The Court also noted that Pennsylvania statute explicitly defines a rape kit as a “sexual assault evidence collection kit,” and the law requires health care facilities to notify law enforcement of the alleged assault.

Because the rape kit reports were testimonial and were offered for their truth at trial, the Confrontation Clause required the testimony of the nurse examiners who actually prepared them. The testimony of PSARC’s clinical director, who did not personally perform any of the examinations, was not an adequate substitute. The Court rejected the Commonwealth's argument that the reports were admissible under the medical records or business records exceptions to the hearsay rule. Hearsay exceptions cannot override the Confrontation Clause. When an out-of-court statement constitutes testimonial hearsay, it may not be admitted at trial unless the defendant had the opportunity to cross-examine the declarant, regardless of whether the statement would otherwise qualify as a hearsay exception.

The Takeaway

Commonwealth v. Walker is one of the most significant Pennsylvania Supreme Court decisions in recent years for criminal defendants. On the consolidation issue, the Court meaningfully strengthened the protections of Rule 404(b) by rejecting the watered-down “logical connection” test and demanding that the Commonwealth meet a real standard before it can try separate cases together. This matters because consolidation is enormously prejudicial. A jury hearing about multiple allegations is far more likely to convict on all of them than a jury considering each charge independently. Going forward, the prosecution will need to show either a true signature crime or a genuine common plan linking the offenses together, rather than simply pointing to broad similarities between different cases.

On the Confrontation Clause issue, the decision provides a clear rule for sexual assault cases: the prosecution must produce the actual nurse examiner who prepared the rape kit report, or it cannot introduce the report. This prevents the Commonwealth from relying on a “surrogate witness” who simply reads the absent nurse’s report into the record.

Defense attorneys handling sexual assault cases, cases involving motions to consolidate, or cases involving the admission of forensic reports should take note of this decision and use it to protect their clients’ rights.

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 and dismissals in cases involving Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree 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.