Philadelphia Criminal Defense Blog

Zak Goldstein 10/2/26 Zak Goldstein 10/2/26

PA Supreme Court: Prosecutors May Not Use a Defendant’s Decision to Hire a Lawyer Against Him

The Pennsylvania Supreme Court has decided Commonwealth v. Jenkins, No. 66 MAP 2024 (Pa. Oct. 1, 2026), holding that a prosecutor violates a defendant’s due process right to a fair trial by telling the jury that the defendant consulted or retained a lawyer before police questioned or arrested him. But the defendant did not get a new trial. The Court held that the error is not structural and found it harmless this case because the trial judge gave a strong curative instruction and the evidence of guilt was overwhelming.

The Facts of Jenkins

On Valentine’s Day 2017, the defendant spent the evening drinking with a longtime friend and the friend’s girlfriend at their Dauphin County apartment. The friend felt dizzy and went to bed. The girlfriend told the defendant to leave, and he refused. She remembered him striking her and throwing her against a wall hard enough to damage it, and she remembered nothing after that. Motel surveillance video showed the defendant arriving at his room around 3:15 a.m. and carrying her limp body inside. She woke up in his room with her pants and underwear removed.

Two months later, after the defendant hired a lawyer, a detective interviewed him by phone with his attorney participating. The defendant denied any wrongdoing and specifically denied having sex with the complainant. DNA testing later identified his semen on the vaginal swab taken at the hospital, which is a tough fact. The Commonwealth charged him with rape of an unconscious victim, kidnapping, and related offenses.

The defendant did not testify at trial. In closing, the prosecutor told the jury that the defendant knew the case was serious, so “[h]e gets a lawyer. He gets an attorney. This isn’t some schlep who just went in and spoke with the police without the benefit of having someone there to protect your rights, no.” She then argued that when he had the chance to come clean with his lawyer on the call, “[h]e lies. He lies.”

Defense counsel unsurprisingly moved for a mistrial. The trial court denied the motion but, at defense counsel’s request, told the jury that the defendant had a right to counsel, that “when statements are given the law prefers that it be with counsel,” and that the jurors should draw no adverse inference from his use of a lawyer. The jury convicted him on all charges, and the court imposed 13 to 30 years of incarceration. A divided Superior Court panel affirmed.

The Supreme Court’s Decision

The Supreme Court affirmed, but it agreed with the defense on the central question. Writing for the majority, Chief Justice Todd explained that when a person has reason to believe police are investigating him, the decision to consult or hire a lawyer does not suggest guilt and has no relevance to whether he committed the crime. Relying on federal and out-of-state decisions, including the Third Circuit’s decision in United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), the Court held that “it is error for a prosecutor to inform the finder of fact that a criminal defendant sought the advice or assistance of counsel prior to questioning by the police, or prior to arrest, for the criminal offense for which they are being tried, as it impacts the defendant’s due process right to a fair trial guaranteed by the Fourteenth Amendment.”

The Court found this prosecutor’s argument especially troubling because she tied the lie to the lawyer, suggesting that the defendant lied with his attorney’s help or blessing. The Commonwealth was free to argue that the DNA proved the defendant lied when he denied having sex with the complainant. The reference to his attorney added nothing to that point. It only undermined the defendant, and his lawyer, in the eyes of the jury.

The Court then rejected the defense argument that the error was structural and required automatic reversal. Applying Weaver v. Massachusetts, 582 U.S. 286 (2017), the Court found that a single improper comment at the end of a three-day trial did not infect the whole proceeding and that its effect could be measured against the rest of the evidence. Like other improper prosecutorial remarks, the comment is subject to harmless error review.

Finally, the Court held that the error was harmless beyond a reasonable doubt. The surveillance video, the DNA results, and the complainant’s testimony provided overwhelming evidence of guilt. The trial judge also gave a prompt instruction that directed the jury not to draw any adverse inference from the defendant’s use of a lawyer, and the Court presumed the jury followed it. The opinion closes with a warning to prosecutors that “this line of questioning should be scrupulously avoided.” Justice McCaffery, joined by Justice Donohue, filed a concurring and dissenting opinion.

The Takeaway

Goldstein Mehta Criminal Defense — Goldstein Mehta LLC Criminal Defense

Jenkins gives defense lawyers a clear, binding rule: the Commonwealth may not tell the jury that the defendant spoke with or hired a lawyer before police questioned or arrested him. But the rule helps only if trial counsel objects right away and moves for a mistrial. In distinguishing the federal and out-of-state cases that granted new trials, the Court pointed out that those cases involved no timely objection, no curative instruction, or an instruction that did not address the comment. Lawyers litigating this issue should also raise Article I, Section 9 of the Pennsylvania Constitution. The defendant in Jenkins did not argue that it provides greater protection, so the Court did not decide that question. But here, the evidence was still just too strong to overcome, so the defendant did not receive a new trial. In many cases, the evidence will not be quite as strong. Lawyers should always object to improper commentary on a defendant’s decision to retain counsel or remain silent in the face of questioning.

Facing Criminal Charges or Appealing a Criminal Case 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 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 9/4/26 Zak Goldstein 9/4/26

PA Superior Court: Trial Counsel Ineffective for Failing to Move to Suppress Parole Violation Admission Obtained Without Miranda Warnings

The Pennsylvania Superior Court has decided Commonwealth v. Ames, 2026 PA Super 179 (Pa. Super. Aug. 10, 2026), holding that a parole agent conducted a custodial interrogation when he took a parolee into custody in handcuffs and shackles, read him the complainant’s allegations of new crimes, and presented him with a form on which he could admit that he had violated his parole by committing that conduct. The agent never gave Miranda warnings, so the signed admission should have been suppressed, and trial counsel had no reasonable basis for letting the Commonwealth use it at a trial where the whole defense was that the complainant had made the allegations up. The Court reversed the denial of the defendant’s PCRA petition and remanded for a new trial.

**What Happened in Commonwealth v. Ames?**

In 2016, the defendant pleaded no contest to simple assault and terroristic threats for assaulting his wife, L.A. While he was on parole for that case, L.A. alleged that he strangled her, beat her, threatened to kill her, and sexually assaulted her on two occasions in late 2018. In March 2019, she reported the incidents to his parole agent. The agent passed the allegations to the local police, and when the police did not file charges right away, he ordered the defendant to report to the parole office. When the defendant arrived, the agent handcuffed and shackled him, took him to an interview room, read him the notice of charges describing L.A.’s allegations in detail, and gave him the choice of a hearing on the violation or a signed waiver admitting it. The defendant signed the form admitting that he had violated parole by engaging in assaultive behavior and violating a no-contact order. The agent never gave Miranda warnings.

The Commonwealth charged the defendant with strangulation, aggravated assault, sexual assault, and related offenses. At trial, it introduced the signed admission and the agent’s testimony about the meeting. The defense argued that L.A. had fabricated the allegations to get the defendant in trouble with parole, and it called two medical experts, including L.A.’s treating physician, who testified that L.A. told her that storage containers had fallen on her. The jury convicted the defendant of everything, and the court sentenced him to forty and a half to eighty years in prison. The Superior Court affirmed on direct appeal. The defendant then filed a PCRA petition arguing that trial counsel should have moved to suppress the admission. The PCRA court denied relief, and he appealed.

The Superior Court’s Ruling

The Commonwealth conceded that the defendant was in custody, so the only question was whether the agent interrogated him. In Commonwealth v. Cooley, 118 A.3d 370 (Pa. 2015), the Pennsylvania Supreme Court held that a parole agent who handcuffs a parolee and questions him about new crimes must give Miranda warnings, because at that point the agent’s conduct is the functional equivalent of a police officer’s. The Commonwealth argued that Cooley did not apply because the agent never asked the defendant any questions and the meeting was a routine part of the parole process.

The Superior Court rejected both arguments. The agent did not bring the defendant in for routine administrative questions. He brought him in to find out whether he had committed the crimes L.A. described, laid out those allegations, told him he believed the defendant had violated parole by engaging in assaultive behavior, and then handed him a form on which he could admit it. That was an interrogation. Miranda protection is not limited to answers to questions; the agent’s words and actions were reasonably likely to elicit an incriminating response, and the defendant did not volunteer anything. A motion to suppress would have had merit.

Trial counsel had no reasonable basis for failing to file it. Her strategy was to show that L.A. was lying, and the signed admission told the jury that L.A. was telling the truth. No competent counsel would allow a confession to the charged conduct into evidence while arguing that the complainant invented the allegations. On prejudice, the Court noted that the defendant’s admissions alone were enough to convict him of several charges, and that the medical evidence was contested. Two defense experts testified that L.A.’s injuries did not match her account, and the Commonwealth did not call any expert to rebut the treating physician. Given that conflict, the confession likely had a substantial impact on the verdict. The Court reversed and remanded for a new trial.

Does a parole agent have to give you Miranda warnings?

Sometimes. Cooley held that a parole agent who questions a handcuffed parolee about new crimes must give Miranda warnings. Ames extends that rule to the situation where the agent does not actually ask anything but simply presents the parolee with an admission form. Anyone on parole or probation who is called in over new allegations should not sign anything admitting to criminal conduct without talking to a lawyer first because the Commonwealth could use the signed form as a confession in the criminal case. And where an agent has already obtained an admission from a client in custody without warnings, defense counsel should move to suppress it. Under Ames, the failure to file that motion can support a successful ineffectiveness claim and lead to a new trial.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Zak Goldstein Criminal Defense Lawyer — Goldstein Mehta LLC Criminal Defense

Zak Goldstein 8/5/26 Zak Goldstein 8/5/26

PA Supreme Court: Commonwealth Must Prove the Warrant Was Valid to Convict a Defendant of Resisting Arrest Where the Warrant Was the Only Basis for the Arrest

The Pennsylvania Supreme Court has decided Commonwealth v. Steadly, 62 EAP 2024 (Pa. July 21, 2026), holding that when police arrest a defendant based solely on a warrant, the Commonwealth must produce evidence at trial that the warrant was actually valid in order to prove the lawful arrest element of resisting arrest. Testimony that a warrant appeared in a police database and that a dispatcher confirmed it over the radio is not enough. Because the Commonwealth never produced the warrants or any evidence of their validity, the Supreme Court reversed the defendant’s conviction and vacated his sentence.

**What Happened in Commonwealth v. Steadly?**

On an evening in August 2021, a Philadelphia police officer stopped the defendant for driving with an illegally tinted windshield. The defendant could not produce his license, registration, or proof of insurance, but he identified himself verbally. The officer returned to his cruiser, ran that information through the Mobile Data Terminal in his patrol car, and saw two bench warrants in the defendant’s name. A police dispatcher then confirmed over the radio that the warrants were active. Bench warrants typically issue when a person fails to appear in court. The officer admitted at trial that he had no idea what the warrants were for and that the warrants were the only reason he decided to arrest the defendant.

When the officer ordered the defendant to turn off the car and get out, the defendant refused. The officer opened the door and tried to remove him, and a struggle followed. The defendant dislodged the officer’s body camera and elbowed him in the face, although the officer testified that he was not hurt. Several officers needed one to two minutes to subdue him. The Commonwealth charged the defendant with recklessly endangering another person (“REAP”) and resisting arrest under 18 Pa.C.S. § 5104.

At a bench trial in Philadelphia Municipal Court, the trial judge sustained a best evidence objection to the officer’s testimony about what the database said, allowing that testimony only to explain why the officer decided to make the arrest. The Commonwealth never introduced the warrants themselves, any records from the database, or any other evidence that the warrants were valid. The court acquitted Steadly of REAP but convicted him of resisting arrest and sentenced him to six months of probation. The Court of Common Pleas denied his petition for writ of certiorari, and the Superior Court affirmed. In the Superior Court’s view, the officer had probable cause to believe that warrants existed, and that belief alone made the arrest lawful for purposes of the resisting arrest statute.

The Supreme Court’s Ruling

The Supreme Court reversed in a majority opinion by Justice Donohue. Resisting arrest is unusual among criminal statutes because the legislature made a lawful arrest an element of the offense. A defendant cannot be convicted of resisting arrest unless the underlying arrest was lawful. Commonwealth v. Biagini, 655 A.2d 492, 497 (Pa. 1995). The Commonwealth therefore must prove the lawfulness of the arrest beyond a reasonable doubt at trial, just like every other element of a criminal offense.

An arrest based solely on a warrant is lawful only if the warrant is valid. Under the collective knowledge doctrine, an officer in the field may rely on a database entry, a bulletin, or a radio call in deciding to make an arrest. Whiteley v. Warden, 401 U.S. 560 (1971). But that reliance does not insulate the arrest from review in court. If the underlying warrant turns out to be invalid, the arrest was unlawful no matter how reasonably the officer acted. The Court held that when an arrest is justified solely on the basis of a warrant, “the Commonwealth must produce evidence of the validity of the warrant beyond an officer’s second-hand knowledge of its existence to prove the arrest was lawful.” It explained that “[p]roof that a warrant exists, by virtue of its appearance in a police database, is never sufficient evidence of its validity under any standard of proof.” A database entry may reflect a warrant that already expired, was previously served, or was issued without probable cause in the first place.

The Court rejected the Superior Court’s line of cases holding that an officer’s probable cause to believe a warrant exists is enough, and it expressly disapproved Commonwealth v. Heidelberg, 267 A.3d 492 (Pa. Super. 2021) (en banc), on that point. Under the Superior Court’s approach, an arrest could qualify as lawful even if no warrant existed at all, so long as the officer reasonably believed one did. The Supreme Court called that standard constitutionally untenable. It observed that the approach effectively imported the federal good faith exception into Pennsylvania law, even though the Court rejected that exception under Article I, Section 8 of the Pennsylvania Constitution in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). Because the Commonwealth produced no evidence of the warrants’ validity, the evidence was insufficient as a matter of law, and the Court reversed the conviction outright. Justice Mundy dissented.

The Takeaway

Steadly matters because warrant arrests happen every day, and police databases are not always right. Warrants can linger in the system long after they have been served, recalled, or satisfied. Going forward, when the Commonwealth prosecutes someone for resisting arrest and the only basis for the arrest was a warrant, it must come forward with real evidence that the warrant was valid. Testimony that an officer saw the warrant in a database or heard about it from a dispatcher will not sustain a conviction. The Court did not spell out exactly what proof will suffice in future cases. It held only that the Commonwealth must present some evidence of the warrant’s validity so that the court or jury can decide whether the arrest was lawful. Defense attorneys should hold the Commonwealth to that burden and challenge the sufficiency of the evidence when the proof falls short.

One caution: Steadly does not give anyone a license to fight the police. The Court repeated the rule that a dispute about the lawfulness of an arrest “is an issue to be resolved in a courtroom, not on a street corner.” Biagini, 655 A.2d at 497. A person who commits new crimes while resisting, such as assaulting an officer, may still be prosecuted for those crimes even if the arrest itself was unlawful. The better course is always to comply and then fight the case in court, where decisions like Steadly give the defense real tools to win.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

Zak Goldstein 7/9/26 Zak Goldstein 7/9/26

PA Supreme Court: The Attorney General Can Now Intervene When the Philadelphia DA Concedes PCRA Relief

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided Commonwealth v. Brown, No. 32 EM 2023 (Pa. June 16, 2026), reversing a Philadelphia judge's decision to vacate a second-degree murder conviction for which the District Attorney's Office had agreed to concede relief. Exercising its rarely used King’s Bench authority, the Court held that a Philadelphia prosecutor’s agreement does not substitute for a judge's independent review, and it announced a new rule for Philadelphia. From now on, whenever the DA’s Office concedes that a defendant is entitled to relief under the Post Conviction Relief Act, the PCRA court must give the Office of Attorney General notice and a chance to intervene before it rules. Justice Dougherty wrote for the Court.

The decision strikes at one of the most important programs of the current District Attorney’s administration. Since 2018, the DA’s Office has conceded relief in more than 120 old cases, most of them murders, and it has agreed to undo roughly three quarters of the death sentences that were on the books when the District Attorney took office. Brown holds that those agreements cannot carry a case on their own, and it writes an adversary into the process by letting the state Attorney General step in as a full party. For a defendant who was counting on an agreed concession to move a case forward, the path just became longer and less certain, and the AG’s Office tends to reflexively oppose the grant of relief in nearly every case.

The Facts of the Case

The case grew out of a 2003 robbery and murder at a Rite Aid at 12th Street and Girard Avenue in Philadelphia. A store employee tipped off a group about the cash kept in the store’s safes. After a failed robbery attempt, the group returned the next day, and one of the men shot and killed the manager, Michael Richardson, during the robbery. A jury convicted Lavar Brown of second-degree murder for his role in the robbery conspiracy, and the court sentenced him to life in prison. Brown was later convicted of a separate, unrelated first-degree murder and sentenced to death, and his Rite Aid conviction served as an aggravating circumstance supporting that death sentence.

The claim at the center of this appeal surfaced years later. In a 2021 petition, Brown argued that the Commonwealth had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to tell the defense that a cooperating witness, Ronald Vann, had falsely accused a young woman named Kennisha Paige of taking part in the robbery. Paige could not have been involved because she was in a residential facility for girls, hundreds of miles away, on the day of the murder. Brown pointed to four documents from the investigation that, in his view, showed Vann had named Paige and that detectives had later confirmed her alibi. His theory was that a witness willing to accuse an innocent person was a witness the jury might not have believed when he pointed the finger at Brown.

What Happened in the PCRA Court

The DA’s Office agreed. In 2021, it conceded that Brown was entitled to a new trial. The families of Brown’s murder victims asked to intervene, but the PCRA court allowed them to participate only as friends of the court, without access to the prosecution’s files.

The trial judge was openly skeptical. Again and again, he told the parties that the documents did not actually show Vann had accused Paige. As he put it at one hearing, “on the face of the documents that were submitted to me, I can’t tell that that, in fact, happened.” He said more than once that he wanted an evidentiary hearing and that he wanted to hear from the detectives and prosecutors who had worked the case. Then, after the defense and the District Attorney’s Office both told him a hearing was unnecessary, the judge reversed course. On May 5, 2023, he granted a new trial with the Commonwealth’s consent, without holding a hearing and without deciding whether the claim was even timely. The victims’s families petitioned the Supreme Court, which took the unusual step of granting King’s Bench review.

The Supreme Court's Decision

The Court reversed on every front. It first held that the claim may have been untimely. Brown’s conviction became final in 2007, and he raised the Brady claim more than thirteen years later. The PCRA’s one-year deadline is jurisdictional, and a court must decide timeliness claim by claim before reaching the merits, no matter what the parties have agreed. The PCRA court never addressed the deadline at all. As the Court reminded, “[t]he agreement of the parties . . . does not suffice to vest a court with jurisdiction.” Commonwealth v. Rivera, 324 A.3d 452 (Pa. 2024).

On the merits, the Court held that Brown never proved the one fact his entire claim depended on, that Vann accused Paige in the first place. A prosecutor cannot suppress evidence that does not exist. The documents were inconclusive, and one of them cut the other way, because it discussed the Rite Aid murder without mentioning Paige at all. None of Vann’s many recorded statements named her, and two detectives declared that they would have documented any such accusation. Because a genuine dispute of fact remained, the Court held that the PCRA court had to hold an evidentiary hearing before it could grant relief, whether or not the parties wanted one.

The Court's Findings About the DA’s Office

Much of the opinion focused on how the District Attorney’s Office handled the case. The Court found that the Office fell short of its duty of candor to the court. It withheld a 2003 memorandum showing that Vann had named both Brown and his co-conspirator months earlier than the Office told the judge, a fact that undercut the very theory the Office was advancing. It joined a stipulation the Court found false, and it repeated the same misstatements in its filings. It never interviewed a single witness before conceding, and it opposed both an evidentiary hearing and the families’ efforts to see the file. Quoting the Third Circuit’s decision in an earlier concession case, the Court noted that “[c]andor is especially critical when proceedings are non-adversarial.” Wharton v. Superintendent Graterford SCI, 95 F.4th 140 (3d Cir. 2024).

The Court then walked through a series of other cases, including Wharton, Murchison, and Perrin, in which state and federal courts had rejected the Office's concessions or faulted its conduct. It concluded that the problem was not that the Office concedes relief, which a prosecutor must do when the law and facts require it, but that too many of its concessions have gone untested and have proven unreliable.

The New Rule for Philadelphia

To address that perceived pattern, the Court used its constitutional rulemaking power to require that, in any Philadelphia PCRA case where the DA’s Office concedes relief, the PCRA court give the Attorney General notice and an opportunity to intervene before ruling. The Attorney General does not replace the District Attorney and may well agree that relief is warranted (although this particular AG’s Office almost certainly will not). The point, the Court explained, is to restore an adversary to a one-sided proceeding so the judge can reach a reliable result. The Court grounded the Attorney General’s right to intervene in the Commonwealth Attorneys Act and limited the rule to Philadelphia because, in its words, that is where the problem is.

The Court divided. Justice Dougherty's opinion drew the votes of Justices Mundy, Brobson, and McCaffery, with Brobson and McCaffery also writing separately. Justice Donohue, joined by Chief Justice Todd, agreed that the grant of a new trial had to be reversed but would not have imposed the new intervention requirement. Justice Wecht dissented and would have declined to hear the case at all.

The Takeaway

Brown is a significant decision, and for defendants in Philadelphia it is a difficult one. For years, a concession from the District Attorney’s Office was often the surest route to relief in an old case. After Brown, that concession no longer clears the path. The Attorney General, which usually defends convictions reflexively and is far less sympathetic, can now enter the case as a full party and oppose relief, which means more litigation, more delay, and in many cases a contested hearing where there would have been none.

The decision also reaffirms principles that matter in every post-conviction case, not just the ones the District Attorney concedes. The PCRA’s time limits are jurisdictional, and a petitioner must plead and prove a timeliness exception for each claim, even a claim the Commonwealth agrees has merit. A prosecutor’s agreement is never a substitute for judicial review, and a judge faced with a real dispute of fact must hold a hearing. For defense counsel, the lesson is to build a complete record rather than lean on the Commonwealth's agreement. That means proving timeliness, gathering the underlying evidence, and preparing to litigate the claim on its merits even when no one is on the other side.

Finally, the Court split three ways, and two justices, including the Chief Justice, would not have created the new procedure. The Court described its rule as subject to future refinement through the normal rulemaking process, so this is likely not the last word on how Philadelphia’s concession cases will be handled. It is also unclear how long this rule will remain in effect, whether it is retroactive to cases on appeal, and whether it would survive even if Philadelphia one day elects a different District Attorney.

Facing Criminal Charges or Appealing a Case in Pennsylvania? We Can Help.

If you or a loved one are facing criminal charges, serving a state or federal sentence, or considering a direct appeal, post-conviction petition, or federal habeas 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.