PA Supreme Court: Majority of Justices Agree Police Opinions on Guilt and Accusations of Lying Must Be Excluded from Interrogation Videos Played at Trial

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Malcolm, No. 46 EAP 2024 (Pa. 2026), addressing whether accusatory statements and opinions of guilt made by police detectives during a videotaped interrogation must be excluded when the video is played for the jury at trial. Although the Court affirmed the defendant’s conviction, the decision actually reinforces the principle that these types of statements should not come in. The case resulted in a split decision and no opinion commanded a majority, but five of the seven justices agreed that the trial court erred in admitting the detectives’ statements. The two concurring justices found the error to be harmless, resulting in a 4-3 vote to affirm the conviction, but the key takeaway is that a strong majority of the Court has concluded that police opinions about a defendant’s guilt and accusations of lying should be redacted from interrogation videos before they are played for a jury. Defense attorneys should continue to file motions in limine to exclude such statements, and this case shows why doing so is critical.

The Facts of Commonwealth v. Malcolm

On December 22, 2018, the victim was fatally shot outside of Kif's Bar on Market Street in Philadelphia after a birthday party. He was shot once in the head and once in the chest. Another individual was also shot but survived. Police recovered eleven fired cartridge casings from two different firearms and obtained surveillance footage from nearby cameras. The footage depicted an individual in a gray zipper hoodie, black boots, black pants, and white earbuds circling the block before approaching the victim from behind and shooting him twice at close range.

Detective James Burns of the Philadelphia Police Homicide Unit was assigned to the case. Unable to identify the shooter, he sent out a patrol alert with a screenshot from the surveillance footage. The defendant was brought in for questioning. During the interrogation, the defendant consented to a search of his bedroom, where officers recovered a gray hoodie, black boots, and white corded headphones consistent with what the shooter was wearing in the surveillance video. The gray hoodie tested positive for gunshot residue on the right sleeve. DNA testing on the hoodie and other items was inconclusive.

About a month after the defendant’s interview, Officer Robert Lamanna identified the defendant as the suspect in the patrol alert. Officer Lamanna was familiar with the defendant because the defendant frequented his assigned police district and the officer had also viewed the defendant on social media. Officer Lamanna was the only witness who would identify the defendant from the surveillance footage at trial.

The Interrogation Video

At trial, the Commonwealth played portions of the defendant’s videotaped police interrogation for the jury. Throughout the interrogation, Detectives Burns and Harkins made numerous accusatory statements, including telling the defendant “I don't believe that we have the wrong guy,” “I'm telling you that I know that this is you,” “We're quite confident we have the right person here,” and “Do you know how absurd that sounds.” The defendant challenged thirteen specific statements on appeal. Throughout the interrogation, the defendant repeatedly and steadfastly maintained his innocence.

Defense counsel made only two to three broad objections during the video. The trial court paused the video at one point to instruct the jury that only one witness, Officer Lamanna, had identified the defendant, and that the jury should disregard the detective’s references to multiple people having identified him. The trial court also reminded the jury that it was the ultimate finder of fact.

The jury convicted the defendant of first-degree murder, violations of the Uniform Firearms Act, and possessing an instrument of crime. He was sentenced to life imprisonment without the possibility of parole. The Superior Court affirmed, concluding that the statements were distinguishable from those in Commonwealth v. Kitchen, 730 A.2d 513 (Pa. Super. 1999), because none of them “directly” accused the defendant of lying.

The Supreme Court's Decision

The Supreme Court granted review and issued a fractured decision. The Opinion Announcing the Judgment of the Court, authored by Justice Mundy and joined only by Justice Brobson, declined to adopt Kitchen’s categorical rule treating these types of police statements as inadmissible. Instead, the OAJC held that the admissibility of accusatory police statements in interrogation videos should be assessed on a case-by-case basis under Rules 401 and 403. The OAJC found no abuse of discretion in this case, emphasizing that the jury heard the defendant’s repeated denials, the trial court gave curative instructions, and defense counsel had the opportunity to cross-examine the detectives. Only two justices joined this analysis, meaning that is not presidential.

Justice McCaffery, joined by Justice Dougherty, concurred in the result only. This means they agreed to affirm the conviction, but for completely different reasons. The concurrence concluded that the trial court erred in admitting the detectives’ statements. Justice McCaffery found that the statements had at best de minimis relevance, explaining that there is no legal basis under Pennsylvania precedent for the relevance of one witness’s opinion about the credibility of another. He cited the longstanding rule from Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014), that credibility determinations are exclusively for the jury, and noted that Pennsylvania courts have consistently prohibited such opinion testimony even from qualified experts. The concurrence stated that he could see “no circumstances under which such testimony should be considered” and that the statements “should have been excluded.” However, Justice McCaffery found the error to be harmless because the crux of the case was the surveillance video and Officer Lamanna's identification, and the verdict would not have been different without the detectives’ opinions.

Justice Wecht, joined by Chief Justice Todd and Justice Donohue, dissented. The dissent agreed with the concurrence that the statements were erroneously admitted but went further, arguing the error was not harmless. Justice Wecht emphasized that the detectives’ repeated assertions of Malcolm's guilt carried a significant danger of unfair prejudice because of their appearance of authority and their suggestion to the jury that additional inculpatory evidence existed beyond what was presented at trial. The dissent described the detectives’ opinions as coming in through the “Trojan Horse” of the interrogation video, meaning the same opinions that would clearly be inadmissible if offered from the witness stand were allowed in simply because they were on a video. The dissent also found the trial court’s curative instructions insufficient, noting they were directed only at Detective Burns’s false claim that multiple “people” had identified the defendant and did not address the broader pattern of accusatory statements. Where identification was the central issue and the surveillance footage was unclear, the dissent concluded the error was not harmless beyond a reasonable doubt.

The Takeaway

Despite the affirmance of the conviction, this is actually a favorable development for defendants even though it does not help the defendant in this case. Five of seven justices agreed that the detectives’ accusatory statements and opinions of guilt were improperly admitted. The existing law has not changed. Trial courts should continue to exclude police opinions about a defendant’s guilt or credibility from interrogation videos played for a jury, and defense attorneys must continue to file motions in limine to make sure that happens. The Kitchen opinion, while not formally adopted by a majority, reflects what five justices on the current Court believe the Rules of Evidence already require.

The practical lesson from this case is the critical importance of filing a detailed pretrial motion challenging specific portions of an interrogation video. In Malcolm, defense counsel did not file a motion in limine directed at the accusatory statements and made only broad, nonspecific objections at trial. That clearly influenced the outcome. Had counsel preserved the issue more carefully, the result may well have been different given that five justices found error. For defendants facing serious charges where the Commonwealth intends to play an interrogation video at trial, this case shows why it is essential to have an experienced defense attorney who will review the video in advance, file the appropriate motions, and make specific objections on the record.

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Criminal Defense Attorney 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, Fraud, and Murder. We have also successfully challenged convictions for murder, firearms charges, rape, and other serious convictions on direct appeal in state and federal court as well as through post-conviction relief act litigation. 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.