PA Supreme Court: Reckless Introduction of False Evidence Bars Retrial of Wrongfully Convicted Defendant

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that the Pennsylvania Constitution’s Double Jeopardy Clause bars a retrial where the original conviction was based on false evidence and prosecutorial misconduct occurred in the form of prosecutors acting recklessly with respect to seeking the admission of the false evidence. This is an important case which sharpens the teeth of PA’s Double Jeopardy Clause and which provides some accountability for prosecutors who introduce evidence at trial that turns out to be false.

The Facts of Johnson 

In Johnson, the victim, Walter Smith, told the police that a man named Clinton Robinson had killed a woman named Margaret Thomas. Later that year, Smith was shot and killed outside of a Philadelphia bar. Based on the ballistics evidence, police believed that there were multiple shooters. Police also found a red baseball cap near Smith’s body.

Debbie Williams, a friend of Smith’s, went to the police station and made a statement to Philadelphia police. She claimed that as they left the bar, there were numerous people outside on the sidewalk or in the street. A man who was wearing a red article of clothing pushed past her towards Smith. She heard shots, so she ducked, and she did not see the shooting. She then saw people run away. After the gunshots, she saw the person who had been wearing the red hat run past her, as well. She went to Smith’s body and picked up his baseball hat, which had a hole in it. The police arrived soon thereafter and took her to the station. She gave the hat to the police.

The case was not solved until 2005. In 2005, a jailhouse informant named Bryant Younger, who was under indictment in a federal drug case, told police that he heard the defendant, who was also in custody, make statements implicating himself in Smith’s murder. The police obtained the defendant’s DNA and compared it to DNA recovered from the red hat. They found that there was a match. 

The Commonwealth then somehow got confused and failed to realize that there were two hats – a red hat which was found in the street, and a black hat which Smith had been wearing. The black hat had been tested and in fact had Smith’s blood and DNA on it, and the red hat had the defendant’s DNA on it. But somehow the Commonwealth believed that there was one hat with both men’s DNA on it. The Commonwealth arrested the defendant and charged him with first-degree murder, conspiracy, and possessing an instrument of crime. The case went to trial, and at trial, the Commonwealth’s crucial piece of evidence was the red hat with the DNA on it.  

However, due to the Commonwealth’s apparent confusion, the prosecutor argued that the shooter, who was wearing the red hat, must have gotten in close to Smith and shot him, leading both to his own DNA being on the red hat as well as Smith’s blood. This was wrong because Smith’s blood was not actually on the red hat; it was on the black hat.

Nonetheless, the DNA analyst also testified that Smith’s blood and the defendant’s DNA were both found on “the hat.” The defendant’s attorney somehow never challenged the underlying premise that there were two hats. He argued that the DNA may not have been reliable and that no one actually saw the defendant commit the shooting. The prosecution emphasized that the decedent’s blood was on the same hat as the defendant’s DNA in closing argument. The jury convicted, and the court sentenced the defendant to death. 

The Post-Conviction Relief Act Litigation 

The defendant eventually filed a PCRA Petition after his attorneys uncovered the fact that there had been two hats and the decedent’s blood was only on the black hat. The Commonwealth agreed that the defendant should receive a new trial and also agreed not to seek the death penalty. The court granted a new trial. 

Discovery Motions and Double Jeopardy Motions

The defendant then began filing discovery motions based on the finding of the two hats. The motion eventually evolved into a motion to dismiss on double jeopardy grounds due to prosecutorial misconduct in introducing false evidence – the false evidence being that there was only one hat. This led to various evidentiary hearings at which the prosecutors and detectives involved in the original trial had to testify. It quickly became clear to the court that the Commonwealth had not intentionally misstated the evidence but had gotten confused and believed that there was only one hat. Some police officers, however, had also exaggerated the evidence if not completely misstated it. 

Following the evidentiary hearing, the defendant moved to dismiss the case. One officer had exaggerated the extent to which he saw blood stains on the red hat, and the other detectives and prosecutors believed that there was only one hat despite the fact that the Commonwealth clearly had two hats in its possession with separate property receipt numbers. He argued that regardless of whether the mistake was intentional or reckless, he had to spend nine years on death row, and the case should therefore be dismissed. The Commonwealth agreed that mistakes were made, but it argued that the mistakes had not been intentional, so it should be permitted to retry the defendant. 

The trial court denied the motion to dismiss on double jeopardy grounds. It found that the Commonwealth had acted recklessly, not intentionally, and because the Commonwealth had not acted in bad faith, the double jeopardy clause did not apply. It did, however, permit the defendant to appeal prior to the re-trial by finding that such an appeal would not be frivolous.  The Superior Court affirmed, and the defendant appealed further to the Pennsylvania Supreme Court. The Supreme Court accepted the case and reversed the conviction.

The Supreme Court’s Ruling

The Court barred the prosecution of the defendant and dismissed the charges against him.

First, it accepted the trial court’s findings that prosecutors had not acted intentionally but had acted either recklessly or with gross negligence. They had not conspired to deprive the defendant of a fair trial, but they had made so many inexplicable mistakes that the mistakes rose to a level of more than just ordinary negligence.

Second, the Court found that the Pennsylvania Constitution provides greater protections than the United States Constitution. Federal appellate courts have found that the United States Constitution requires intentional misconduct in order for the double jeopardy clause to apply and bar a retrial. But the Supreme Court found that Pennsylvania’s Constitution bars a retrial where the first conviction was vacated as a result of prosecutorial misconduct that occurred recklessly.

The purpose of the double jeopardy clause is not only to penalize prosecutorial error, but also to protect citizens from the embarrassment, expense, and ordeal of a second trial for the same offense. It should also prevent compelling them to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent they may be found guilty.

When the government engages in improper actions sufficiently damaging to undercut the fairness of a trial, it does not matter much to the defendant whether the prosecution did it on purpose. Therefore, the double jeopardy clause applies to bar retrial both when the prosecution acts intentionally as well as recklessly. Because the prosecution here clearly acted recklessly, the Commonwealth could not re-try the defendant, and the Court dismissed the case. 

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PA Superior Court: Guilty Plea Invalid Where Defendant Not Warned of Obligation to Pay Restitution

Commonwealth v. Rotola

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Rotola, holding that the trial court may not order restitution at sentencing in a plea bargained case unless the defendant agreed to restitution as part of the plea bargain.

Theft of Property Lost, Mislaid or Delivered by Mistake and Restitution

In Rotola, the defendant pleaded guilty to theft of property lost, mislaid or delivered by mistake as a misdemeanor of the first degree. The court ordered Rotola to serve 9-24 months, less one day, of incarceration and pay restitution in the amount of $25,000, jointly and severally with his co-defendant. Initially, the court found Rotola solely responsible for the theft of $25,000 in jewelry. However, after Rotola filed a post-sentence motion to reconsider, the trial court made Rotola jointly and severally liable with his co-defendant.

Given the extremely high restitution figure, Rotola appealed. On appeal, Rotola argued that the restitution amount was both not supported by the record and not the direct result of his conduct. Rotola pleaded guilty to theft as a misdemeanor of the first degree, and theft as an M1 indicates that the property stolen was worth less than $2,000. Thus, Rotola argued that it was excessive to impose a restitution amount so far exceeding $2,000 when he pleaded guilty to an offense which suggested the restitution should only be $2,000. He also argued that he was not as culpable as his co-defendant who had actually stolen the property as his role in the crime was to sell only a portion of the stolen goods to a pawn shop.

The Pennsylvania Restitution Statute

The statute governing restitution in criminal cases makes restitution mandatory regardless of ability to pay. It provides:

§ 1106. Restitution for injuries to person or property

(a) GENERAL RULE.-- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

(c) MANDATORY RESTITUTION.--

(1) The court shall order full restitution: (i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.

(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim’s request for restitution . . . and such other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.

(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

(ii) Where the district attorney has solicited information from the victims as provided in subparagraph (i) and has received no response, the district attorney shall, based on other available information, make a recommendation to the court for restitution.

Restitution in Theft Cases

After Rotola appealed, the Superior Court rejected his second argument, finding that because the defendants acted together criminally to cause a single harm to the victim, both defendants were responsible for the full restitution despite Rotola being somewhat less involved.

The Court, however, agreed with the first argument. It found that there was no agreement as to restitution and no suggestion in the record that Rotola would be responsible for restitution. The plea paperwork did not suggest that he would be responsible for restitution, and the oral colloquy conducted by the sentencing judge did not inform Rotola that he would be responsible for restitution. Given the complete absence of any mention of restitution on the record, the Superior Court agreed with Rotola that the guilty plea to theft could not have been knowing, intentional, and voluntary. Therefore, the Court reversed the conviction and ordered that the plea be withdrawn.

Although the restitution statute makes restitution mandatory, a defendant must be advised of the possibility of having to pay restitution in order for a plea to be valid. The Court specifically required that the defendant be warned on the record of the possibility of having to pay restitution, and the Court also required that the sentencing court follow the procedures specified by the statute, meaning a court is required to hold a hearing and determine the amount of restitution at the time of sentencing. Because Rotola was never informed that he would have to pay restitution, his plea was withdrawn and the court remanded the case for trial.

Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

Did an Assistant City Solicitor Commit a Crime When He Photographed His Friend Tagging a Fresh Grocer with Anti-Trump Graffiti?

If you’re hanging out with a buddy and your friend does something illegal while you’re there, are you on the hook for the crime? What if you knew or suspected that he was going to do it? Those are the questions likely facing Philadelphia prosecutors as they decide whether to bring charges in a case involving an Assistant City Solicitor who, according to the Philadelphia Inquirer, was videotaped “involved in an anti-Donald Trump vandalism incident.” 

The video, which is available on the Inquirer’s website, shows the man “wearing a blue blazer and holding a glass of wine, filming or taking photos, while a second man spray paints ‘F--- Trump,’ on the wall of a newly opened Fresh Grocer.” That certainly isn’t good behavior for a city attorney. But given that he wasn’t the one with the spray paint, did he commit a crime by watching and taking photos? The answer to that question starts with an analysis of Conspiracy law. In other words, the question is whether the video provides the Commonwealth with enough evidence to bring a conspiracy charge.

Most people have a general idea of what a conspiracy is, and on its face, it looks simple. Conspiracy is an agreement between two or more people to commit a crime. Conspiracy punishes not just the commission of the crime, but also the fact that the conspirators made the illegal agreement. Conspiracy is illegal because legislators have generally decided that people who plan crimes in advance with other people should be punished more harshly than people acting alone or who commit crimes impulsively. For this reason, conspiracy is a separate offense from the crime which the parties agreed to commit. Although conspiracy seems like a simple concept, in court, it is more complicated than it seems and can be very difficult for the prosecution to prove. The Pennsylvania Crimes Code defines conspiracy as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1)  agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2)  agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

In plain English, this means that a person commits a conspiracy when they agree to commit or try to commit a crime or when one person agrees to help the other person with planning or committing a crime. Additionally, the prosecution must show more than just the existence of an agreement. The Commonwealth also must show that one of the conspirators committed an overt act. The overt act requirement provides that “[n]o person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.” 

The overt act requirement ensures that people are criminally liable only when they take real steps towards committing the crime. It protects people who talk or joke about committing a crime but do not really mean it. For example, if you and I enter into an agreement to rob a bank, we have not committed a crime until one of us actually does something in furtherance of the agreement. However, it is important to remember that we do not both have to do something in furtherance of the conspiracy. If we make an agreement and one of us does something substantial in furtherance of the conspiracy, we have committed a crime. If we agree to rob the bank and you go buy the masks, we are now both on the hook for conspiracy even if I did not actually do anything other than agree with you that we would rob the bank. 

Conspiracy is a complicated and often difficult charge to prove because most of the time, unless they have a wiretap, cooperating witness, or undercover officer, the prosecution does not have evidence of the actual agreement. Instead, the prosecutor will produce testimony or other evidence describing the actions of both defendants during the incident and ask the judge or jury to infer that the defendants must have agreed to commit the crime together in advance. This is where the difficult questions arise; when one person commits the crime with another person present who does not do anything illegal, are they both on the hook? Without concrete evidence of a prior agreement, the answer is often no. 

The answer is often no because Pennsylvania law provides two important defenses to conspiracy: “Mere Presence” and “Mere Participation.” The mere presence doctrine establishes that the defendant’s presence at the scene of the crime or in the company of whoever committed the crime is insufficient to show participation in a conspiracy. This is true even where the defendant knew or suspected that the other person intended or planned to commit an unlawful act.

For example, if you and I are walking down the street, and I punch someone in the face while you stand there, the evidence would be insufficient to establish that there was a conspiracy because there was no evidence that you agreed to or encouraged the assault in some way. Although running from the police is almost never a good idea, this is true even if we both run when the police show up to make an arrest. Mere presence means that the prosecution must show that the defendant was part of the agreement, not just that he was there or that he knew about it.  

Mere participation is another important defense to a conspiracy charge. Mere participation is the idea that when a fight breaks out involving multiple people, the spontaneous eruption of the fight is not enough to show a conspiracy charge. Pennsylvania appellate courts have recognized that “the mere happening of a crime in which several people participate does not of itself establish a conspiracy among those people.” For example, people do not commit the offense of conspiracy “when they join into an affray spontaneously, rather than pursuant a common plan, agreement, or understanding.” That’s because conspiracy requires a prior agreement. It is not enough that a crime was committed by multiple people because if they all acted spontaneously, then it was not a conspiracy. Conspiracy is a complicated legal charge, and there are many potential defenses other than mere presence and mere participation. 

Now back to the original question – does the video show a conspiracy? When looking just at the video posted on the Inquirer’s website, it appears that the city lawyer did not commit the vandalism (which would likely be charged as criminal mischief) himself. Instead, he appears to have continued drinking his wine and taken some photos of the vandalism. Therefore, in order to convict him under a theory of conspiracy, the prosecution would have to show that there was some prior agreement to commit the crime or that based on the conduct in the video, the judge or jury should infer that there was a prior illegal agreement.  

Although he watched it happen and even photographed it, those actions may not be enough to show that he planned the vandalism or agreed with the painter to help with it. Simply being there and photographing it may have just been mere presence as explained above, and mere presence is not a crime. This, however, assumes that the two men have not confessed or given statements which indicate that they were both planning on doing it. Assuming that the video would be the only evidence introduced at trial, the judge or jury would not know whether the two men spoke about their plans beforehand and may very well find that there is insufficient evidence of a conspiracy. 

Of course, that is the criminal defense lawyer's perspective, and I still strongly advise my readers not to hang around when other people are committing crimes or possessing illegal contraband. The police and prosecutors may view it differently, and whether they feel there is enough evidence to bring charges is a different question from whether the judge or jury should find guilt beyond a reasonable doubt. The government could argue that there was a conspiracy: the two men appear to arrive together, it looks like they may speak to each other as they leave the scene, the act appears planned because the one man has brought a spray-can which he appears to attempt to conceal under his jacket as they approach, and the city solicitor takes photographs of the act, thereby egging him on and encouraging him to commit the vandalism. There are also other theories of criminal liability such as aiding and abetting which are equally complicated and which I will save for a future article. These decisions will ultimately be made by prosecutors and a judge or a jury, but whether the assistant solicitor committed a crime is not as simple as it initially may seem, and an experienced criminal defense attorney will recognize the available legal defenses even when there is a video of the incident which on its face may look incriminating. 

The key takeaway from this post is that criminal charges like conspiracy are complicated. They require a great deal of skill and expertise to identify the issues and raise the right legal and factual defenses. Many people would assume that the Assistant City Solicitor is guilty of vandalism, but as I have explained, there are several defenses which could be raised. The Philadelphia Criminal Defense Attorneys of Goldstein Mehta LLC have handled countless conspiracy cases with great success. We have won cases based on mere presence and mere participation arguments. We know that each case is different, and we always fight for the best possible outcome for each client. If you or a loved one are facing conspiracy or any other criminal charges in Philadelphia or the surrounding counties, call 267-225-2545 for a confidential, honest consultation.