PA Superior Court: Prosecutors May Introduce Evidence that Defendant and Recanting Eyewitness Were Incarcerated Together

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, holding that the trial court properly permitted the Commonwealth to introduce evidence that the defendant and an eyewitness who later recanted were incarcerated in the same prison before trial together in order to suggest that the eyewitness recanted out of fear of the defendant. The Superior Court allowed this testimony despite the fact that the there was no concrete evidence to show that the defendant and the eyewitness had communicated while they were incarcerated together or that the defendant had pressured the witness in any way.

The facts of Commonwealth v. Thomas

Philadelphia Prosecutors charged the defendant in Thomas with first degree murder, carrying a firearm without a license (VUFA Sec. 6106), and possessing an instrument of crime. The jury found him guilty, and the trial court immediately sentenced him to the mandatory life in prison without parole on the murder charge as well as an aggregate 4.5 to 12 years of incarceration on the other charges.

The evidence at trial showed that the defendant, the decedent, and a group of other men were playing dice in Philadelphia. At some point during the game, the men concluded that the decedent was cheating. One player angrily walked away from the game, but the defendant told him that he was going to handle it. Witnesses testified that later, while the decedent was bending over to roll the dice, the defendant pulled a gun and shot at him from behind, causing the decedent to fall to the ground. The defendant then shot him two more times in the face. Two of the witnesses who testified that the defendant committed the murder were a man named K.F. and a man named E.M. Philadelphia Police responded to the scene and transported the decedent to the hospital, where he was pronounced dead.

Although K.F. gave a statement to police indicating that the defendant committed the murder, K.F. later recanted that statement and wrote a letter claiming that it was not the defendant who actually committed the murder. In response, prosecutors introduced evidence at trial that K.F. and the defendant were incarcerated at the same jail two months prior to trial. The defense attorney objected on the basis that telling the jury that the defendant was incarcerated would suggest to the jury that the defendant was a criminal, but the trial court overruled the objection and allowed the prosecution to introduce the evidence despite this potential for unfair prejudice against the defendant.  

The Superior Court Appeal

After the jury convicted the defendant, he appealed to the Pennsylvania Supreme Court. As one of the main issues, he claimed that the trial court erred in admitting the evidence that he and K.F. were incarcerated in the same prison at some point prior to the trial and K.F.’s recantation. K.F. had previously claimed in a video-taped statement that he watched the defendant shoot and kill the decedent. However, K.F. was subsequently arrested on unrelated charges of his own. Within one month of his arrest and incarceration in the same jail as the defendant, K.F. wrote a letter recanting his video-taped statement. Therefore, the Commonwealth argued that the incarceration in the same jail was relevant to show both the defendant’s consciousness of his own guilt and to explain why K.F. recanted his prior statement.

On appeal, the Superior Court agreed. It recognized that the courts have long recognized that any attempt by a defendant to interfere with a witness’s testimony is admissible to show a defendant’s consciousness of guilt. Additionally, the Commonwealth may cross-examine a witness in an attempt to show that there are reasons, such as fear or intimidation, why a witness may have changed his or her story. Therefore, the Commonwealth’s cross-examination of K.F. was relevant to show both the defendant’s potential consciousness of guilt and why K.F. may have changed his statement.

At the same time, the court recognized that there could be some prejudicial effect to informing the jury that the defendant was incarcerated prior to trial. However, the court found that the trial judge sufficiently eliminated the risk of unfair prejudice to the defendant by providing a cautionary instruction. In the instruction, the trial judge informed the jury that the jury should not consider the defendant to be a bad person or a person of bad character merely because he had been arrested and incarcerated pending trial. The judge made it clear to the jury that the only reason the defendant was in jail was because he was awaiting trial for this case, not because he was serving a sentence on some other case. The judge further instructed the jury not to draw any conclusions whatsoever from the mere fact that the defendant was in jail pending trial. Therefore, the Superior Court found that the trial court properly allowed the prosecution to ask these questions. It found the defendant’s other issues waived and upheld the conviction.

The court’s opinion, of course, completely ignored the fact that it was the Commonwealth’s fault that the defendant and the witness were held in the same jail. Philadelphia has at least four county prisons in which a defendant can be held while awaiting trial, and the jails have procedures by which inmates can be held separately from each other so that they do not have contact with each other. Prosecutors have the ability to house inmates in different counties or states when necessary and routinely do so. Here, the case suggests that the Commonwealth did nothing to inform the prison that the two inmates should be housed in different facilities. The Commonwealth also appears to have introduced no evidence that the two inmates actually came into contact with each other while incarcerated or that the defendant did anything to make the witness change his story. Nonetheless, the Superior Court seems to have ignored these basic facts in finding in favor of the Commonwealth.

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Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free 15-minute criminal defense strategy session to any potential client. If you have been arrested or may be under investigation, call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court Upholds Homicide by Vehicle Conviction for Failure to Come to a Complete Stop at Busy Intersection

Commonwealth v. Moyer

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Moyer, upholding the defendant’s conviction and state prison sentence for Homicide By Vehicle, Recklessly Endangering Another Person (“REAP”), and Driving Under the Influence (“DUI”). On appeal, Moyer challenged the sufficiency of the evidence against her as well as the admissibility of the blood results for the DUI charge under Birchfield v. North Dakota. Unfortunately for Moyer, the Superior Court held both that the Commonwealth produced sufficient evidence to convict the defendant of homicide by vehicle and that the Birchfield claim that police should have obtained a warrant prior to the blood draw was waived for failure to raise the issue prior to or during trial.

"Rolling Stops" and Homicide by Vehicle 

In Moyer, the record showed that the defendant approached a stop sign at an intersection which she had driven through on many prior occasions. The defendant failed to come to a complete stop at the intersection. She characterized the stop as a “rolling stop,” but the trial court found that she had traveled through the intersection at around twelve miles per hour and had not attempted to activate her brakes prior to the ensuing collision. As she went through the intersection, a box truck crashed into her car, crossed the double yellow line, and then crashed into a tow truck, killing the driver of the box truck. The evidence produced at trial also suggested that it would be difficult to see traffic coming from the side due to the presence of a building at the edge of the intersection.

Criminal Charges for Car Accidents

Moyer was arrested and charged with Homicide by Vehicle, REAP, Homicide by Vehicle while DUI, DUI, and various summary offenses relating to reckless driving. The jury convicted her of homicide by vehicle and REAP, but it acquitted her of Homicide by Vehicle while DUI because the levels of marijuana and Xanax in her system were extremely low and unlikely to cause actual impairment or inability to drive. The trial court found her guilty of DUI and the summary traffic offenses. Notably, there is no right to a jury trial for a first-offense DUI charge or for summary traffic offenses. Therefore, the jury decided whether to convict on the more serious judges, and the trial judge made the ruling on the DUI and summaries.

The Criminal Appeal

Moyer raised two issues on appeal. First, she challenged the use of the blood results against her because police had warned her that she would face more severe criminal penalties if she refused to consent to chemical testing in violation of Birchfield v. North Dakota. In Birchfield, the United States Supreme Court held that states many not criminalize the refusal to submit to warrantless blood testing even where police have probable cause to believe that the driver was driving under the influence. However, Birchfield, was decided after the defendant was convicted in the trial court. Although she sought a new trial by filing post-sentence motions prior to taking the appeal, the trial court denied the post-sentence motions.

The Superior Court upheld the trial court’s decision, agreeing that Birchfield is not retroactive and that the defendant should have known the case was on appeal in the United States Supreme Court and raised the issue prior to trial in order to preserve it for appeal. Pennsylvania’s appellate waiver doctrine is extremely demanding. If claims are not properly preserved by filing motions or objections at the trial level, those claims may be waived forever.

Second, Moyer argued that the evidence was insufficient to convict on Homicide by Vehicle because she had done nothing more than roll through the intersection. Homicide by Vehicle is defined in the Motor Vehicle Code. Section 3732 of the Motor Vehicle Code defines Homicide by Vehicle as:

Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic exception section 3802 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death.

Thus, in order to convict a defendant of Homicide by Vehicle, the Commonwealth must show that the defendant’s traffic violation caused a death and that the defendant acted either recklessly or with gross negligence. Pennsylvania law defines criminal recklessness as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

The statute may also be satisfied by a showing of gross negligence. Gross negligence is more than ordinary civil negligence. Instead, it requires that the defendant’s conduct “evidenced a conscious disregard of the substantial and unjustified risk that he would be involved in a traffic accident causing death.” Accordingly, appellate courts have equated gross negligence with recklessness.

The Superior Court rejected Moyer’s argument that she had not acted recklessly. Although the small amounts of marijuana and Xanax in her system had likely not caused the accident, the Court found that her failure to stop at the intersection as required by Pennsylvania’s traffic laws was reckless enough to support a conviction for Homicide by Vehicle. First, the Court found that traveling at twelve miles per hour is different than simply failing to come to a complete stop and “rolling” through an intersection. Second, the Court noted that the stop sign preceded a busy intersection and that a building obscured the view of one lane of the cross traffic. Third, the Court considered the fact that the evidence showed Moyer had failed to brake prior to the collision. Finally, the Court recognized that Moyer was familiar with the intersection and had driven through it numerous times. Therefore, she should have known the risks of driving through it without stopping. Although the decedent failed to wear a seatbelt and was driving with his passenger door open, the Court still found that it was Moyer’s reckless conduct that caused his death. Therefore, the Court upheld the convictions against Moyer.

Award-Winning Philadelphia Criminal Defense Lawyers

Defense Attorneys Demetra Mehta and Zak Goldstein

Homicide by Vehicle charges are extremely serious, and there are often defenses to these charges. In general, it is not enough for the Commonwealth merely to show that there was a car accident and someone died. Instead, the Commonwealth must show that the defendant acted with more than just negligence; that is that the defendant acted recklessly, which is more difficult to show. Here, the evidence showed that the defendant was traveling twelve miles per hour into a busy intersection without stopping, which apparently satisfied the standard. In many cases, it may be possible to challenge Homicide by Vehicle charges both by attacking the prosecution’s proof as it relates to the defendant’s mens rea and by challenging whether the defendant’s actions actually caused the death of the victim. If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of cases. Call 267-225-2545 for a free criminal defense strategy session.

Read the Case: Commonwealth v. Moyer