Third Circuit Overturns PA Murder Conviction Due To Prosecutor’s Knowing Use Of Perjured Testimony

Prosecutors May Not Knowingly Introduce Perjured Testimony 

Federal and state courts have previously held that prosecutors may not knowingly use perjured testimony or knowingly allow perjured testimony to go uncorrected. However, the standard of review on appeal and in post-conviction proceedings has not always been clear. In Haskell v. Superintendent Greene SCI, et al, the federal Third Circuit Court of Appeals has ruled that the knowing use of perjured testimony by the prosecution in a state criminal trial may lead to the reversal of a conviction in habeas litigation. In order to obtain relief, the defendant must show a reasonable likelihood that the perjured testimony affected the judgment of the jury.

Prosecutors charged Haskell with murder after a gunman shot and killed a man in a bar in Erie, Pennsylvania in December 1994. The primary issue at trial was whether authorities correctly identified Haskell as the gunman. In addition to some circumstantial evidence linking Haskell to the crime, the Commonwealth also presented four alleged eyewitnesses who claimed that Haskell was the shooter. Three of them had significant problems with their testimony. One witness recanted on the stand and testified he had identified Haskell solely in the hopes of getting out of jail on his own unrelated case, and two others denied being able to identify the shooter in earlier statements given to the police. Therefore, the testimony of the fourth eyewitness was important.

The fourth eyewitness consistently testified that Haskell was the shooter. However, she had a number of legal problems of her own. In addition to facing a parole violation in Erie County, she was also in jail on Simple Assault charges. In addition to her Erie County legal problems, she also faced numerous theft charges in Mercer County. She testified that she smoked marijuana with Haskell shortly before the shooting and witnessed him committing the crime. At the preliminary hearing, she denied having any pending charges and insisted that she was in custody solely due to the parole violation. She also insisted that she had not discussed cooperation with the prosecution. She stuck to that story at trial, again insisting that she was in jail for a parole violation and that she did not expect to receive anything in exchange for her testimony.

Of course, that was a lie. The detectives and prosecutors in Erie helped her with her pending charges both before her testimony at trial and afterwards. They wrote letters to the judges in her cases as well as the prosecutors in Mercer County, and the witness was eventually released with a suspended sentence due to the fact that she cooperated by testifying in a homicide. Despite knowing that the witness perjured herself by denying any cooperation or anticipated benefit, the prosecutor actually argued during closing argument that it was ridiculous to think she would receive any personal benefit from testifying against the defendant. That prosecutor then sent a letter to the judge in Mercer County explaining the importance of her testimony in the homicide.   

Based on the circumstantial evidence and the testimony of the four witnesses, Haskell was convicted and sentenced to life in jail. He initially filed a Post-Conviction Relief Act Petition alleging that the fourth witness’s perjured testimony violated his right to due process. The state court dismissed the PCRA, finding that it was time-barred. He then filed a habeas corpus petition in federal court, and the Commonwealth conceded that the claim was not in fact time barred. The federal District Court held that the testimony was false and the prosecution knew or should have known it was false. However, the District Court denied the habeas petition, finding that the testimony would not have had a substantial effect on the jury’s verdict. Haskell appealed.

The Third Circuit Court of Appeals reversed the District Court. The Third Circuit recognized that a state violates the Fourteenth Amendment’s due process guarantee when it knowingly presents or fails to correct false testimony in a criminal proceeding. Consequently, the Supreme Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Likewise, the same result must occur when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. A conviction must be set aside even if the false testimony goes only to a witness’s credibility rather than the defendant’s guilt. 

Accordingly, the Third Circuit recognized that in order to establish his claim, Haskell must have shown that

1. the fourth eyewitness committed perjury,

2. the Commonwealth knew or should have known that the testimony was false,

3. the false testimony was not corrected,

4. there is a reasonable likelihood that the perjured testimony could have affected the judgment of the jury.

The Third Circuit held that Haskell established all four prongs of this test. First, it was uncontested that the eyewitness had lied about not receiving favorable treatment in exchange for cooperation. Second, the Commonwealth knew about it because the prosecutors involved actually obtained that favorable treatment for her. Third, the prosecution failed to correct the perjured testimony and instead argued that it was ridiculous to believe she would receive any benefit. Finally, there is a reasonable likelihood that the false testimony could have affected the verdict. The Court noted that she was a key witness because all of the other witnesses had significant problems with their testimony. They either recanted or had given prior inconsistent statements in which they denied being able to identify the shooter. It was only the fourth eyewitness who claimed to know Haskell before the shooting and that she could therefore definitively identify him. Because her testimony was central to the case, the Court held that her perjured testimony posed a reasonable, and significant likelihood of affecting the verdict. Therefore, the Third Circuit reversed Haskell’s conviction.

Haskell should put prosecutors throughout the Third Circuit on notice of both their pre-trial discovery obligations and their duty to correct perjured testimony when they know about it. Every criminal defendant has a constitutional right to due process, and due process includes the right to a fair trial. It is impossible to have a fair trial when the prosecution is willing to introduce testimony that it knows to be false, and prosecutors simply may not hide exculpatory evidence from the defense. 

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PA Superior Court: Defendant Entitled to New Trial Where Instructions Permitted Jury to Find Aggravated Assault on Officer Based on Mens Rea of Recklessness

The Difference Between Aggravated Assault and Simple Assault on Law Enforcement

There is a common misconception in Pennsylvania courts that a Simple Assault on a police officer, medical professional, or other protected class who is acting in the course of their official duties automatically becomes a felony two Aggravated Assault due to the Aggravated Assault on law enforcement statute. In normal circumstances, Aggravated Assault as a first-degree felony requires that the defendant cause or attempt to cause serious bodily injury to the complainant. Aggravated Assault may also be a second degree felony either when the defendant causes or attempts to cause bodily injury with a deadly weapon or when the defendant causes or attempts to cause bodily injury to a member of a protected class. Protected classes under the F2 Aggravated Assault statute include most forms of law enforcement officers, paramedics, nurses, SEPTA employees, prosecutors, public defenders, judges, and other government officials who are acting in the course of their official duties. Thus, punching a police officer is often going to be an F2 Aggravated Assault instead of a Simple Assault. This assumes that the officer was on duty at the time of the punch. 

Demetra Mehta, Esq. - Philadelphia Criminal Lawyer

In the case of an obvious punch or a kick to an officer, a criminal defendant may be properly charged with Aggravated Assault as a felony of the second degree. However, where the intent to cause bodily injury is less clear – such as in the case of a defendant who is resisting, fleeing, flailing, and just otherwise being difficult and ends up elbowing or bumping into an officer, the defendant’s actions may not constitute an Aggravated Assault. This is because the F2 Aggravated Assault on law enforcement statute requires that the defendant act either knowingly or intentionally to cause or attempt to cause bodily injury. The Aggravated Assault statute is more limited than the Simple Assault statute because the Simple Assault statute can be violated when the defendant acts recklessly. This means that it could be Simple Assault to elbow a police officer while flailing about and resisting arrest instead of a felony Aggravated Assault. Of course, we still do not recommend that you resist arrest or do anything that could be construed as an assault on an officer. 

Commonwealth v. Domek

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Lawyer

In the recent case of Commonwealth v. Domek, the Pennsylvania Superior Court granted a new trial to the defendant, finding that the trial court had improperly dismissed his Post-Conviction Relief Act (“PCRA”) Petition. Domek’s PCRA Petition alleged that his trial attorney had been ineffective in failing to object when the trial court instructed the jury that Domek could be convicted of F2 Aggravated Assault on law enforcement if the jury found that he recklessly caused bodily injury.

In Domek, police transported the defendant to the Allegheny County jail. When the defendant arrived, he refused to cooperate with a search of his mouth and began to yell profanity at the correctional officers. Officers repeatedly warned him that they would use force to open his mouth, and he continued resisting. When one of the officers reached towards his mouth, the defendant smacked her hand away. At that point, the officers began struggling with the defendant. One of them punched him, and they took him to the ground. Once on the ground, he refused to put his hands behind his back, and the officers eventually tazed him. Officers testified at trial that the defendant had tried to push and punch the officers. Additionally, one of the officers suffered a shoulder injury which required surgery and led to missing ten months of work.

F2 Aggravated Assault Requires Knowing or Intentional Conduct

A jury convicted the defendant of F2 Aggravated Assault, and the defendant appealed. The Pennsylvania Superior Court affirmed the conviction, and the defendant did not appeal to the Pennsylvania Supreme Court. Instead, within one year of the conviction becoming final, he filed a Post-Conviction Relief Act Petition alleging that trial counsel had been ineffective for failing to object to the erroneous jury instruction. Generally, a PCRA allows a defendant who has been convicted and is still serving a sentence to seek a new trial or new sentencing where the defendant can show that his or her lawyer was ineffective in the representation at trial or on appeal and that the defendant suffered prejudice as a result.

In this case, the trial court dismissed the PCRA as meritless. However, the defendant appealed the dismissal of the PCRA to the Superior Court. The Superior Court reversed, finding that the jury instructions were erroneous in that they specifically permitted the jury to find that if the defendant had caused the injury recklessly, the jury could convict him of Aggravated Assault instead of Simply Assault. Because Aggravated Assault requires a defendant to have acted knowingly or intentionally, this instruction was not correct.

The trial court had agreed that the instruction contained an error, but the court argued that the evidence was overwhelming that the defendant committed an Aggravated Assault. Therefore, the trial court adopted the prosecution’s position and dismissed the PCRA. The Superior Court disagreed. It found that “the inclusion of an erroneous mens rea reducing the level of culpability required to find Appellant guilty of aggravated assault was a critical mistake that ‘could have reasonably had an adverse impact on the outcome of the proceedings.’” Given that the jury acquitted the defendant of an offense that required the knowing or intentional causation of injury, the Court found that it was very possible the jury convicted based on the recklessness jury instruction. Further, the injured officer testified at trial that she suffered the injury when the defendant fell backwards onto her, which is potentially consistent with recklessness. Therefore, because the issue raised a question of law, the Court reversed the conviction for F2 Aggravated Assault and remanded the case for trial.  

Domek illustrates the difference between Simple Assault and Aggravated Assault, and it also provides an example of the type of claim that can be raised in a Post-Conviction Relief Act Petition. A PCRA Petition alleging ineffectiveness of counsel allows the defendant to seek relief in the form of a new trial where the defendant's lawyer was ineffective. Had the defendant's trial lawyer recognized the differences between the statutes and made a timely objection, the trial court likely would have realized that the instruction was incorrect and instructed the jury properly. In that case, the jury may very well have acquitted the defendant of felony Aggravated Assault. Therefore, the PCRA Petition was the proper place to raise this type of claim. 

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If you are facing criminal charges or are interested in appealing a conviction, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully resolved countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

PA Superior Court Reverses Order Granting Motion to Suppress For Lack of Specificity in Grounds

What is a Motion to Suppress? 

The Motion to Suppress is one of the first lines of defense in any case in which the defendant is charged with possessing some kind of contraband. For a defendant who is charged with the possession of guns or drugs, it may be possible to have the evidence excluded from trial and the charges dismissed if the defendant was subject to an illegal search or seizure. In cases where the prosecution is unable to show that police or other law enforcement officers found the evidence in a manner that complies with the requirements of the United Sates and Pennsylvania Constitutions, the evidence could be suppressed by filing a Motion to Suppress. However, Pennsylvania appellate courts have increasingly required defendants to be very specific when asserting the grounds for the Motion to Suppress in the trial court.

Commonwealth v. Banks

In the case of Commonwealth v. Banks, the Superior Court has reversed an order suppressing a firearm and K2 (synthetic marijuana) whichallegedly belonged to the defendant. The Court concluded that although the trial court found that a constitutional violation had occurred, the defendant’s attorney failed to specifically allege that particular constitutional violation either in his written Motion to Suppress or oral statement of the grounds for the Motion which was made prior to the hearing. Accordingly, the Court found that the Commonwealth did not have a fair opportunity to respond to the alleged constitutional violation, and therefore the suppression order should be reversed.

Banks involved a parole search by Pennsylvania State Parole Agents. According to the agents involved, the Parole Board received an anonymous tip that Banks was violating his parole. Based on the tip, two agents went to Banks’ house and knocked on the door. When Banks emerged from the house, the parole agents questioned him on the front porch. They did not see any contraband in the house when the door was open, and they did not enter the house until after they spoke with Banks. Of course, when the agents asked whether Banks had anything in his house which would violate his parole, Banks freely told them that he had a gun and some synthetic marijuana in the house. Following Banks admissions, the agents entered the house and found the contraband. They then called the police. The police obtained a search warrant and recovered the items.

Standards for Probation Searches and Parole Searches

In Pennsylvania, probation officers and parole agents may conduct two types of searches. They may always make routine home visits in order to check on the probationer or parolee and look for any obvious parole violations. Home visits are limited to a plain-view inspection of a residence. Additionally, if they have reasonable suspicion of a parole violation, then parole agents may conduct a full search of the parolee’s residence. In general, anonymous tips do not provide reasonable suspicion because there is no basis for believing them to be trustworthy. Therefore, Banks’ attorneys filed a Motion to Suppress alleging that the firearm and K2 should be suppressed because the parole agents conducted a home search without reasonable suspicion. They further argued that the search was not part of a routine home visit because the agents went out to the house specifically to investigate the anonymous tip.

The trial court disagreed with Banks’ lawyers in part. The court found that the agents violated Banks’ rights, but for different reasons than those alleged in the Motion to Suppress. It found that the agents did not conduct a home search until after Banks confessed to having a gun and synthetic marijuana, and once Banks confessed, the officers clearly had reasonable suspicion to enter the house. However, the court found that the officers conducted the equivalent of a “Terry” stop on Banks by ordering him to come out of the house and submit to their questions. Therefore, the officers were required to have reasonable suspicion for the stop. Because the stop was based entirely on an anonymous tip, the officers did not have reasonable suspicion, and the contraband that they found was the fruit of the poisonous tree and should be suppressed.

Specificity in Motions to Suppress

On appeal, the Superior Court reversed. The Superior Court found that Banks’ lawyers had failed to comply with Rule 581(D) of the Pennsylvania Rules of Criminal Procedure. Under the rules, the defense must “state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” In their written motion and subsequent oral grounds, the lawyers mentioned only the suspicion-less search of the residence. They never made any allegation that the interrogation on the porch was conducted without the requisite level of reasonable suspicion. Therefore, the Superior Court held that the Commonwealth was not properly on notice of the grounds for the motion and did not have a fair opportunity to respond. The Court reversed the granting of the motion and remanded the case for trial. It is unclear whether Banks will be able to amend the grounds and re-litigate the motion in the trial court. However, his lawyers will almost certainly try.

Banks is highly illustrative of the fact that the Superior Court is not currently very sympathetic to criminal defendants. The case also shows the importance of litigating in the trial court with a careful focus on the Rules of Criminal Procedure and an eye on making sure that the defendant’s rights are protected in the event of an appeal by either side. If an appellate court can avoid a difficult issue such as whether a gun was properly suppressed by finding waiver on the part of the defense, an appellate court will often do so. Judges do not want to suppress guns, and they will look for ways to avoid doing so. Therefore, it is important to make sure that all possible grounds for a motion to suppress are covered both in the written motion and orally prior to trial. It is also critically important to take all possible steps to protect the record for appeal, which means making appropriate objections and motions so that they are not waived in the event the defendant is convicted at trial.

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If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully represented thousands of clients in both trial and post-trial proceedings. We have won motions to suppress guns, drugs, and other contraband. We will do everything we can to fight for you and obtain the best possible result at trial or on appeal. Call 267-225-2545 for a free criminal defense strategy session today.

New Limits on PA Civil Asset Forfeiture

In a unanimous 73-page opinion, the Pennsylvania Supreme Court has provided significantly increased protections for property-owners in civil forfeiture cases where the matter arises out of some sort of criminal wrongdoing for which there may not have been a prosecution. The Court’s opinion will particularly benefit property owners who face a civil forfeiture action due to wrongdoing committed by someone who uses or has access to the property but does not actually own it. In Commonwealth v. The Real Property and Improvements Known as 416 S. 62nd Street, Philadelphia, PA 19143 (Elizabeth Young), the Court found that the Excessive Fines Clause of the Eighth Amendment to the United States Constitution provides significant constitutional limitations on the government’s ability to seize property from someone who has not been convicted of a crime.

What is CIVIL ASSET Forfeiture? 

There have traditionally been two types of forfeiture which could relate to criminal wrongdoing. In general, criminal forfeiture is less problematic and controversial. Criminal forfeiture is the idea that someone who has been convicted of a crime may be ordered by the sentencing court to forfeit property related to the crime or profits generated through criminal activity. The criminal forfeiture is part of the defendant’s sentence, and it requires that the defendant have been convicted beyond a reasonable doubt. For example, if you are convicted of money laundering, you could be ordered by the sentencing court to forfeit the money.

Civil Forfeiture

The other type of property forfeiture, civil forfeiture, is much more problematic and controversial because it does not a criminal conviction or even a prosecution. Civil forfeiture involves the government filing a lawsuit against the property itself instead of a criminal defendant. Historically, if the government could show some sort of nexus between the property and some sort of criminal activity, then the government could seize the property even if the defendant had not committed the crime or even been involved in it. Thus, civil forfeiture at its worst allows the government to take your house if someone else in your house commits a crime while in the house even though you, as the property owner, had nothing to do with the crime. Civil forfeiture is also problematic because it disrupts law-enforcement incentives by providing cash-strapped cities and states with a financial incentive to focus on drug crime, where the police are likely to be able to seize cash, weapons, cars, and jewelry, instead of more serious crimes like rape and murders where law enforcement are not going to make any money through civil forfeiture. In an era of tight governmental budgets, civil forfeiture can be a real way for police and prosecutors to stave off cuts to their own departments. Thus, police and prosecutors could become more interested in arresting people for selling marijuana than solving violent crimes.     

Commonwealth v. Elizabeth Young

Commonwealth v. Elizabeth Young provides one of the clearest examples of civil forfeiture abuse and the need for increased protections. In Young, the Philadelphia District Attorney’s office attempted to use civil forfeiture to take the house of a 71-year-old grandmother who owned and resided in a property in West Philadelphia. She had owned the house since the 1970s, and in 2006, her health began to deteriorate. Her adult son and two grandchildren moved into the house, and her adult son began selling relatively small amounts of marijuana. On a number of occasions, her son sold marijuana to police officers or confidential informants. He also used her Chevrolet Minivan to meet with buyers during some of these drug transactions. On at least one occasion, police warned Ms. Young that her son was selling marijuana, but the marijuana sales apparently continued.

Eventually, Ms. Young’s son was convicted of Possession with the Intent to Deliver marijuana and sentenced to a short county jail sentence. Ms. Young was never charged with a crime, but the District Attorney’s Office filed a petition for forfeiture of her house and vehicle under the Controlled Substances Forfeiture Act. Although the Commonwealth never charged her with a crime, prosecutors sought to put a 71-year-old grandmother out on the street due to the fact that she was unable to prevent her adult son from selling small amounts of marijuana.

The trial court, finding that Ms. Young had not done enough to stop her son from selling marijuana, ordered the house and car forfeited to the Commonwealth. The trial court found a nexus between the marijuana sales and the home and vehicle in that both the house and the car were used to store and sell marijuana. Under Pennsylvania law, there is an “innocent owner” defense to civil forfeiture in that a defendant may retain the property if the defendant can show that he or she did not know about the illegal activity or did not consent to it. However, the court found that the innocent owner exception did not apply because police had warned Young of the sales and she had not done anything to stop her adult son from selling marijuana after that date. In other words, she was unable to convince her son to stop, and she was also not willing or able to throw him out of the house. The trial court further found that that the forfeiture did not constitute an excessive fine because the maximum financial penalty for the drug crimes would have been $80,000, and that amount exceeded the value of the home and automobile.

Increased Protections in Civil Forfeiture Cases

On appeal, the Commonwealth Court reversed the trial court’s ruling, and last week, the Pennsylvania Supreme Court upheld the decision of the Commonwealth Court. The Court traced the history of both civil and criminal forfeiture and the Excessive Fines Clause of the Eighth Amendment and ultimately concluded that the trial court erred in ordering that the property be forfeited. The Court found that a trial court must consider two issues in a challenge to a civil forfeiture under the Excessive Fines Clause.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

— The Eighth Amendment to the United States Constitution

First, the trial court must determine whether the property sought to be forfeited is an instrumentality of the underlying criminal offense. If the property is not an instrumentality, then the forfeiture is unconstitutional and the property may not be forfeited. If the trial court finds that the property is in fact an instrumentality, then the court must still determine whether the value of the property sought to be forfeited is grossly disproportional to the gravity of the underlying offense.

In making the decision on the threshold instrumentality issue, the court should consider at least the following factors: 

(1) whether the property was uniquely important to the success of the illegal activity;

(2) whether the use of the property was deliberate and planned or was merely incidental and fortuitous to the illegal enterprise;

(3) whether the illegal use of the property was an isolated event or repeated;

(4) whether the purpose of acquiring, maintaining or using the property was to carry out the offense;

(5) whether the illegal use of the property was extensive spatially and/or temporally; and

(6) whether the property is divisible with respect to the subject of forfeiture, allowing forfeiture of only that discrete property which has a significant relationship to the underlying offense.

If the property is an instrumentality of the crime, the court must weigh the value of the property against the gravity of the offense. In evaluating value, the court must consider the following factors: 

(1) the fair market value of the property;

(2) the subjective value of the property taking into account whether the property is a family residence or if the property is essential to the owner’s livelihood;

(3) the harm forfeiture would bring to the owner or innocent third parties; and

(4) whether the forfeiture would deprive the property owner of his or her livelihood.

Once the court has determined the value of the property, the court must then weigh the value of the property under the above four factors against the gravity of the offense, considering factors such as:

(1) the nature of the underlying offense;

(2) the relation of the violation of the offense to any other illegal activity and whether the offender fit into the class of persons for whom the offense was designed should be considered;

(3) the maximum authorized penalty as compared to the actual penalty imposed upon the criminal offender;

(4) the regularity of the criminal conduct — whether the illegal acts were isolated or frequent, constituting a pattern of misbehavior;

(5) the actual harm resulting from the crime charged, beyond a generalized harm to society; and

(6) the culpability of the property owner.

Clearly, the court must now consider a large number of factors when making a civil forfeiture decision, and the majority of the factors are going to weigh against taking a 71-year-old grandmother’s home due to a limited number of marijuana sales by a non-owner of the property. Thus, the Pennsylvania Supreme Court remanded the case to the trial court to reconsider its findings in light of the new guidance provided by the decision. Additionally, the Supreme Court rejected the trial court’s relatively cursory analysis of the issue under the innocent owner defense. The Court noted that the innocent owner defense can be shown through two ways: either a lack of knowledge or lack of consent. Thus, simply having knowledge of illegal activity may not be enough. If the defendant ordered her son to stop selling drugs and believed he had done so, then that may have been enough to show a lack of consent even if she did originally have knowledge.

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The Court’s ruling greatly strengthens the protections for people who are facing civil forfeiture actions but have not been found guilty of any criminal wrongdoing themselves. It also should not really limit the Commonwealth’s ability to take property which his truly being used for criminal activity. In the case of a house which has really become a drug house, or property which has been used to commit a crime, then prosecutors should still be able to show that the factors weigh in favor of forfeiture. But in cases like Young, the Commonwealth will have a much more difficult time putting grandmothers out on the street because they have difficulty stopping adult children from selling marijuana.

As always, if you are facing criminal charges, under investigation, or dealing with a forfeiture action, you should speak with one of our Philadelphia criminal defense lawyers today. We can help with state and federal charges in Pennsylvania and New Jersey. Call 267-225-2545 for a free criminal defense strategy session with an award-winning defense attorney.