Philadelphia Criminal Defense Blog
PA Superior Court: Forwarded Emails May Qualify as Duplicates for Best Evidence Rule
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Fischer, holding that the trial court properly admitted forwarded emails as duplicates under the best evidence rule even though forwarded emails can easily be tampered with or forged. The Court held that the best evidence rule did not prohibit the admission of the emails.
The Facts of the Case
The defendant and the complainant, his ex-fiancée, were involved in a ten-year relationship that ended prior to August 2020. They shared a child, who was two years old at the time of the events in question. Between August and September 2020, the defendant allegedly engaged in repeated communications directed toward the complainant. The communications involved making phone calls to the complainant, sending text messages and emails, and making social media posts tagging the complainant. On one occasion, the defendant made 100 calls to the complainant in a single day, which seems excessive.
The communications included threats and manipulative language. For example, one email stated: “If you don’t ensure our daughter is reunited with me this evening, your life will change forever tomorrow, as will your mother’s. Tread carefully. You’re being watched.”
At trial, the Commonwealth relied on forwarded emails from the complainant. The complainant had forwarded the emails from one account to another and then printed out the emails and given them to the police. The prosecution introduced them into evidence as evidence of the defendant’s harassing conduct.
The Commonwealth charged the defendant with three counts of harassment and one count of stalking. A jury convicted him of two harassment charges but acquitted him of stalking and one of the three harassments counts. The trial court sentenced the defendant to two years of probation with restrictive conditions. The defendant appealed, arguing that the trial court erred in admitting the forwarded emails because they should not have been admissible under the Best Evidence Rule.
The Superior Court Appeal
The defendant argued that the forwarded emails were not admissible for three reasons.
They were not “originals” or “duplicates” under the Pennsylvania Rules of Evidence.
The forwarding process allowed for potential manipulation of the content.
Omitted portions of the email correspondence removed necessary context from the evidence.
The trial court overruled these objections, admitting the emails as “duplicates” under Pennsylvania Rule of Evidence 1001(e), which defines a duplicate as a copy produced through an electronic or other reliable process that accurately reproduces the original.
The Superior Court affirmed the trial court’s decision, holding that the forwarded emails were properly admitted as duplicates. The Court’s reasoning was based on the following:
Duplicate Status: The Court determined that the forwarded emails met the definition of duplicates because they were created through an electronic process that accurately reproduced the original content, including the sender’s and recipient’s email addresses, timestamps, and subject lines. The forwarded emails contained more detailed metadata than the screenshots at issue in Commonwealth v. Talley, a leading case on the Best Evidence Rule.
Authenticity: The defendant failed to raise specific challenges to the authenticity of the emails. The complainant authenticated the forwarded emails through her testimony, testifying that they were identical to the messages she received from the defendant. Thus, this claim was waived, and it would have been rejected anyway because the complainant could authenticate the emails as the emails that she received.
Fairness: The Court rejected the defendant’s argument that the forwarded emails were unfairly admitted because other communications were omitted. The Court noted that the defense could have addressed these omissions through cross-examination or by introducing additional evidence.
Precedent: The Court relied on the Pennsylvania Supreme Court’s decision in Talley, which held that screenshots of text messages are admissible as duplicates under the Best Evidence Rule if created through a reliable process and authenticated at trial.
Ultimately, the Superior Court held that the forwarded-and-then-printed emails were duplicates of the originals and that forwarding an email and then printing it was basically the same thing as screenshooting it. In Talley, the Supreme Court ruled that screenshots of text messages were admissible as duplicates.
The problem is that screenshotting in fact creates a duplicate, whereas a forwarded email is not the exact same thing as the original email. It is easy for someone to change the text in the forwarded email, and one of the judges issued a concurrence suggesting that she would not have allowed for the admission of the emails because the risk of manipulation was too high.
In this case, however, the Court ruled that the emails were properly admitted and that any challenge to whether they were real should be decided by the fact-finder rather than as a challenge to their admissibility. The defense was free to cross-examine the complainant on the fact that she did not have the original emails available and then argue that they were fake. The problem with this analysis is that judges and juries are often too quick to rely on electronic evidence like text messages and emails that looks real even when it is not. It takes only a matter of seconds to edit or forge a text message or email, and unless someone is particularly savvy with technology, they may not realize just how easy it is to forge this type of evidence. Further, it is usually not particularly difficult to obtain actual records from the service provider to show that the screenshots or forwarded messages are real. Unfortunately, the courts have generally rejected the idea that the prosecution should have to obtain solid proof that the images are real, instead shifting the burden to the defense to prove that they are fake. Hopefully, the defendant will seek further review in this case. The appellate courts may also begin to reevaluate the low standard for the admissibility of electronic evidence as it becomes clearer that this type of evidence can be fabricated in a matter of seconds.
Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
Third Circuit: Obstruction Enhancement Must Be Supported by Actual Evidence at Sentencing
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
The United States Court of Appeals for the Third Circuit recently issued a decision in United States v. Soto, vacating the sentence of a federal robbery defendant and remanding the case for resentencing due to an improperly applied obstruction of justice enhancement. The Court found that the government failed to introduce actual evidence at sentencing to support the enhancement and that the defendant’s alleged conduct, even if supported by the evidence, did not show an intent to obstruct the proceedings.
The Facts of Soto
The defendant was convicted of multiple charges stemming from two armed bank robberies in New Jersey. The charges included conspiracy to commit bank robbery (18 U.S.C. § 371), bank robbery (18 U.S.C. § 2113(a)), and using and carrying a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)). At sentencing, the district court applied a two-level enhancement for obstruction of justice under USSG §3C1.1, citing three alleged incidents:
The defendant entered an elevator with jurors and asked one to press a button for him.
The defendant greeted victims on the steps of the courthouse before they testified.
The defendant allegedly interacted with a co-defendant's brother while attending a family event which the government had given him permission to attend.
At sentencing, the district court determined that the offense level was 29 and sentenced the defendant to 289 months in federal prison. The sentence included two mandatory and consecutive seven-year terms for the firearms charges. The defendant appealed, arguing that the district court should not have applied the obstruction enhancement.
The Third Circuit's Decision
The Third Circuit agreed with the defendant, reversed the decision of the district court, and vacated his sentence. The Third Circuit concluded that the district court erred in applying the enhancement for several reasons:
1. Lack of Evidence Supporting the Alleged Obstruction
The Court emphasized that an obstruction of justice enhancement requires proof that the defendant acted “willfully” with the specific intent to obstruct or impede the administration of justice. In the defendant’s case:
Elevator Interaction: The court found no evidence of the defendant’s intent to influence or intimidate the jurors from the fact that he got on the elevator with jurors. While two jurors reported feeling uncomfortable, the majority were unfazed or did not even notice the interaction. The Court characterized the defendant’s actions—asking a juror to press a button—as an ordinary interaction which failed to show any obstructive intent.
Greeting Victims: The Court noted that the government’s claim that Soto greeted victims as they entered the courthouse was unsupported by testimony or reliable evidence. Defense counsel maintained that the defendant merely said “good morning” to people passing by on the courthouse steps one morning. He did not threaten anyone or say anything about the case.
Interaction with a Co-Defendant’s Brother: The government alleged that the defendant approached the brother on the street, but it did not introduce any actual evidence to support this claim. The defendant denied that this interaction occurred and objected, and the district court failed to hear any evidence on the allegation or make factual findings on this incident.
2. Due Process Violations
The Third Circuit also emphasized that the lower court violated the defendant’s due process rights because the court relied on unsubstantiated allegations without hearing any supporting evidence. Although the government referenced surveillance footage and FBI interviews, these materials were not part of the record from sentencing. Therefore, because the defense objected to the pre-sentence report, the district court could not rely on the allegations. Where the defense does not object to the PSR, then the district court may assume the statements in the PSR are true. But where the defense contests their validity, due process requires that the government prove factual allegations in the pre-sentence report.
3. Misapplication of the Guidelines
The obstruction of justice enhancement penalizes deliberate attempts to interfere with the judicial process. The Third Circuit criticized the district court for focusing on the consequences of the defendant’s actions (e.g., discomfort among jurors and the need for voir dire) rather than on whether the defendant acted with the intent to obstruct justice. Without evidence of willful obstruction, the enhancement was unwarranted and led the defendant to receive a worse sentence than he would have had it not been applied. Accordingly, the Court remanded for a new sentencing hearing.
This decision highlights several critical points for federal sentencing hearings.
Strict Evidentiary Standards at Sentencing: Prosecutors bear the burden of proving enhancements by a preponderance of the evidence, and sentencing courts may only apply enhancements where the evidence in the record supports the enhancement.
Intent Matters: The obstruction of justice enhancement under §3C1.1 applies only when the defendant acts with deliberate intent to obstruct justice. Mere inappropriate or inadvertent behavior does not suffice. Lawyers may know to stay far away from jurors, but a criminal defendant may not know that saying hi or getting on an elevator could be a problem.
Protecting Due Process: Defense counsel should object to unsupported allegations at sentencing in order to fight for a lower sentence and to preserve the record for appeal.
Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Superior Court: Police Violate Miranda by Claiming They Won’t Use Defendant’s Statement in Court During Interrogation
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The Pennsylvania Superior Court has decided the case of Commonwealth v. Phillips, reversing the defendant’s conviction for murder and finding that the police violated his Miranda rights by initially giving his Miranda warnings but then telling him that they would not use his confession in court after they gave the Miranda warnings. The entire premise of Miranda is that an individual who is subjected to a custodial interrogation must be warned that they have the right to remain silent, the right to an attorney, and that anything they say can can be used against them in court. Therefore, the police cannot give those warnings, subsequently undermine them by promising something false to the contrary, and then use the resulting confession in court.
The Facts of Phillips
The defendant was accused of committing a 2019 shooting in North Philadelphia that killed one man and injured another. Surveillance video showed the shooting. The shooter was on a bicycle and wearing a distinctive floral-patterned shirt. The Philadelphia Police received a tip for an Instagram account linked to a specific handle which appeared to implicate the account owner in the shooting. The police connected the defendant to that Instagram account and ultimately charged him with murder and related charges.
The Interrogation
Two Philadelphia homicide detectives interrogated the defendant at the police station while the defendant was in custody on unrelated charges. The detectives provided the defendant with his Miranda warnings. During the interrogation, the defendant admitted to ownership of the Instagram account, confirmed his presence at the crime scene, and claimed that he participated in the shooting as a lookout under the mistaken belief that the incident was only supposed to be a robbery, not a murder. Obviously, these statements did not help the defendant at his trial.
The key issue with respect to the confession arose when the defendant asked: “You all going to use this in court on me?” One detective falsely responded, “Nobody’s using anything in court,” in an apparent effort to assuage the defendant’s concerns. This statement directly contradicted the Miranda warning that anything said “can and will be used against you in a court of law.”
After making this false statement, the detectives continued questioning the defendant, ultimately eliciting inculpatory statements. The defendant later moved to suppress these statement, arguing that the detective’s promise of confidentiality invalidated his waiver of Miranda rights and rendered his statements involuntary.
The Motion to Suppress
The trial court denied the defendant’s motion to suppress. The court concluded that the detective’s statement was meant to address the defendant’s fear of retribution in being perceived as a snitch and did not negate his understanding of the Miranda warning. After a second trial (the first ended in a mistrial due to a COVID-19 outbreak), the defendant was convicted and sentenced to life imprisonment without parole for first-degree murder along with additional consecutive sentences for other offenses.
The defendant appealed to the Superior Court, asserting that:
The trial court erred in admitting his statements to detectives because his Miranda waiver was invalid.
The trial court improperly sentenced him without considering mitigating factors, including his psychological background, due to its refusal to order a presentence investigation report.
The Superior Court’s Ruling
The Superior Court reversed the ruling of the trial court and held that the trial court should have granted the motion to suppress because the police violated the Miranda rule by lying to the defendant and telling him that his statement would not be used in court.
The Superior Court focused on the interrogation’s adherence to Miranda standards. Under the United States Supreme Court’s holding in Miranda v. Arizona, police must inform suspects of their rights, including the right to remain silent and the warning that anything said can be used against them in court whenever the police conduct a custodial interrogation. If they do not do so, then anything said by the defendant generally cannot be used in court, with some exceptions. Additionally, a suspect’s waiver of the Miranda rights must be knowing, intelligent, and voluntary.
The Superior Court evaluated whether the Miranda waiver was voluntary and whether the defendant really understood the rights he was giving up. In other words, the court asked whether the waiver was the product of free choice, without intimidation, coercion, or deception. It also evaluated whether the defendant understoodstood the nature of the rights and the consequences of waiving them.
The Superior Court found that the detective’s statement that “Nobody’s using anything in court” misrepresented the consequences of the defendant’s waiver. A reasonable person in the defendant’s’ position could have interpreted this as a promise that his statements would not be used against him. The Court emphasized that such false promises contradict the Miranda warnings’ purpose: ensuring suspects understand their statements can be used as evidence in court.
Because the detective’s statement undermined the Miranda warnings, the Superior Court concluded that the defendant’s waiver was invalid. Accordingly, the trial court should have suppressed the statement.
The Court also rejected the argument that this error was harmless. Without the defendant’s confession, the remaining evidence against him was largely circumstantial and consisted of:
Internet searches for extended 9mm handgun clips on the day of the shooting.
Cell tower data placing the defendant near the crime scene.
Surveillance footage showing a bicyclist in a floral-patterned shirt—similar to clothing associated with Phillips.
While this evidence could have suggested the defendant’s involvement, it lacked the direct and unequivocal nature of his confession. The confession was critical to the jury’s guilty verdict.
Therefore, the Superior Court vacated the defendant’s judgment of sentence and remanded the case for a new trial without the statement. It will obviously be harder for the Commonwealth to obtain a conviction on remand. Ultimately, the police are free to tell are sorts of lies during an interrogation, but they are not free to tell lies that undermine the Miranda warnings.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
PA Supreme Court: After Samia, Commonwealth Still May Not Use Non-Testifying Co-Defendant’s Confession Against Defendant Where Confession Obviously Implicates Defendant Contextually
Criminal Defense Attorney Zak T. Goldstein, Esquire
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jones, holding that even despite the United States Supreme Court’s limiting of Bruton in Samia v. United States, the Commonwealth still may not use a non-testifying co-defendant’s confession against the defendant where the co-defendant’s confession either directly refers to the defendant even if not by name or the jury learns that the co-defendant’s confession has been redacted. This case is extremely important because some courts have suggested that Bruton was effectively overruled by the 2023 Samia decision, but the Pennsylvania Supreme Court has now held that Bruton is still implicated even when the defendant’s actual name is removed from the co-defendant’s statement.
The Facts of Jones
On February 6, 2016, at about 3:30 a.m., Jones, co-defendant #1, and co-defendant #2 exited a Philadelphia SEPTA train and hailed a cab driven by the victim. Jones took the front seat and, after directing Destin on where to drive, unexpectedly pulled a gun and shot the victim in the head. Jones jumped out of the cab while co-defendant #1 also assaulted the victim. The victim managed to escape with gunshot injuries. The incident was captured on SEPTA surveillance cameras, and police subsequently identified the three through tips from the restaurant owner where Jones and co-defendant #1 worked. Prosecutors charged Jones with attempted murder, aggravated assault, and firearms violations.
The Co-Defendant’s Confession
The main issue in the case came from co-defendant #1’s confession to the police. In his confession, co-defendant #1 referred directly to Jones by name as the shooter. At trial, however, the prosecution redacted the statement to change any references to Jones by name to “my friend” so as to comply with the Bruton rule. The co-defendant described the events leading up to the cab shooting. He specifically detailed how he and “his friend” left their workplace at Jack’s Firehouse Restaurant, traveled together, and were ultimately identified in SEPTA surveillance footage. He further explained that “his friend,” wearing a gray jacket, was seated in the front passenger seat of the cab and was the shooter.
Jones’s defense attorney argued that even though the co-defendant’s confession was redacted to replace Jones’s name with “my friend,” the confession still unmistakably pointed to him. The Commonwealth, on the other hand, argued that the redactions were sufficient to meet Bruton’s requirements, especially in light of Samia’s more limited holding on whether a redacted confession which does nothing more than eliminate the defendant’s name solves any Sixth Amendment confrontation clause problems.
Ultimately, the issue involved in the use of a non-testifying co-defendant’s statement that implicates the defendant is that the defendant does not get the chance to cross-examine the non-testifying co-defendant. Accordingly, the use of such a confession, where it implicates the defendant, violates the Sixth Amendment’s right to confront one’s accusers. Courts have “solved” this problem by requiring the prosecution to redact these confessions and remove the defendant’s name. But the issue of whether redactions are sufficient where the statement still obviously refers to the defendant despite the redactions continues to come up.
The Supreme Court’s Analysis
The Pennsylvania Supreme Court found that the statement violated the Sixth Amendment because it was still painfully obvious that “my friend” was Jones. The ruling addressed two main questions: (1) whether the redactions sufficiently protected Jones’s Confrontation Clause rights, and (2) whether the use of contextual evidence rendered the redactions meaningless, thereby violating Bruton. The Court analyzed three prior United States Supreme Court cases in its opinion.
First, in Bruton v. United States, the United States Supreme Court held that the admission of a non-testifying codefendant's confession that implicates a defendant violates the defendant's Sixth Amendment rights if the codefendant does not testify. The rationale is that even with a limiting instruction, jurors may still use the confession against the defendant.
Second, in Gray v. Maryland the U.S. Supreme Court ruled that replacing a defendant’s name with an obvious blank or “deleted” was still a violation of Bruton as it creates an obvious reference to the defendant. Gray clarified that redactions must go beyond superficial omissions and avoid any obvious link to the defendant’s identity.
More recently, in Samia v. United States, the United States Supreme Court limited the protections of the Bruton rule. The 2023 Samia decision clarified that Bruton applies only to confessions that directly implicate the defendant. Samia held that if a confession uses neutral, non-identifiable language without directly naming or clearly pointing to the defendant, it is admissible, even if circumstantial evidence might suggest involvement. Samia does not really explain how much circumstantial or contextual evidence is too much such that even a redacted confession could violate the Sixth Amendment.
The Pennsylvania Supreme Court focused on the fact that co-defendant #1’s confession, despite using “my friend” instead of Jones’s name, contained unmistakable identifiers that rendered the redaction ineffective under Bruton.
First, the confession was read to the jury by a detective, who noted that co-defendant #1 and “his friend” worked at Jack’s Firehouse Restaurant and were seen together on SEPTA surveillance footage. The confession described specific, identifying details:
Workplace Identification: The co-defendant described how he and “his friend” worked at Jack’s Firehouse and left their shift together. The Commonwealth brought in a witness from the restaurant who testified that Jones and co-defendant worked together at that establishment, providing a direct link for jurors.
Clothing and Physical Identification: The confession referenced Jones as “my friend” in a grey jacket, which was visually corroborated by SEPTA still images shown to the jury before the confession was read. The images showed Jones in a grey jacket.
The Incident in the Cab: The co-defendant described his “friend” pulling out a gun and shooting the cab driver, offering a narrative that aligned closely with Jones’s alleged crime, making it painfully apparent who the “friend” was.
Repeated Reference to the Redacted Statement: The prosecutor emphasized that the statement being read was “redacted” or altered. This, the Court concluded, likely drew the jury’s attention to the identity being shielded, potentially inviting them to infer that Jones was “my friend.”
The Supreme Court’s Ruling
The Pennsylvania Supreme Court found that, taken together, these contextual clues allowed the jury to identify Jones as “my friend” in the co-defendant’s confession, thereby violating Bruton even under Samia’s narrower standard. The ruling highlights that:
Direct Implication via Redaction: The confession’s references to Jones's workplace, his visible presence in surveillance footage, and specific references to the “friend” in a grey jacket uniquely identified Jones. This violated Bruton’s protection against statements that “directly” implicate a defendant.
Indirect Inference Insufficient for Admissibility: Although Samia permitted some level of inference, the Court found that the co-defendant’s description was so detailed that it effectively negated the redaction. The Court rejected the idea that replacing “Jones” with “my friend” avoided a Confrontation Clause issue at least in part because the jury knew of the redaction, which could make them more likely to infer the protected identity.
Distinguishing from Samia: Unlike in Samia, where a neutral reference did not clearly identify the defendant, here, the “gray jacket” and “workplace” identifiers pointed directly to Jones. This direct identification required no “linkage” with external evidence; rather, it was an immediate inference the jury could make without additional information.
The Court remanded the case for the Superior Court to determine if this Bruton violation constituted a harmless error, leaving room for possible further appellate consideration.
This case is critically important as it recognizes that the Bruton rule still has some viability in Pennsylvania state court proceedings. Simply replacing a defendant’s name with some other term such as my friend or the other guy is not enough where the confession makes it completely obvious to whom the confession refers.
Facing criminal charges or appealing a criminal case in Pennsylvania?
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
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.