PA Appellate Court Again Recognizes False ID to Law Enforcement Statute Requires Police to Explicitly Inform Defendant That They Are the Subject of an Official Investigation

Philadelphia Criminal Defense Lawyer Zak Goldstein

False Identification to Law Enforcement 

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Kitchen. In Kitchen, the court once again recognized that Pennsylvania’s False Identification to Law Enforcement Statute requires the Commonwealth to prove that the officer specifically informed the defendant that he or she was the subject of an official investigation prior to the defendant providing false identifying information to the officer. The court once again rejected the Commonwealth’s argument, which has been made repeatedly in prior cases, that the Commonwealth may prove a violation of the statute by showing that a defendant should have inferred the existence of an official investigation.

Commonwealth v. Kitchen

In Kitchen, Philadelphia police pulled the defendant over for making a right turn without activating her turn signal. The defendant pulled over, and police approached the vehicle. The officer testified that he asked the defendant for her license, registration, and insurance. The defendant did not have any paperwork for the vehicle, and she told the officer that she had rented the car. She also could not provide any paperwork for the car rental. After failing to provide any paperwork to the officer, the defendant gave the officer a fake name.

After the fake name she gave came back as a person with a suspended driver’s license, the officer decided to impound the vehicle. The officer used Philadelphia’s Live Stop procedure and called the Parking Authority to come tow the car. The officer removed the defendant from the car and conducted an inventory search of it. The officer found 76 packets of crack cocaine during the inventory search as well as a driver’s license with a different name on it from the name that the defendant had provided. The officer found additional packets of cocaine and some money throughout the car.

After finding more drugs and what may have been the defendant's real driver's license, the officer questioned the defendant further about her name. He told her that he believed that the name she had previously provided was actually the name of her girlfriend and that he had discovered that both the name provided and the name on the driver’s license he had found had suspended licenses. By this point, he had removed her from the vehicle and placed her in handcuffs, but she continued to give a fake name. The officer eventually arrested the defendant and charged her with Possession with the Intent to Deliver, False Identification to Law Enforcement, and related charges.

Is It a Crime to Give a Police Officer a Fake Name? 

The defendant was found guilty of all charges in the trial court after the trial court ruled that she should have inferred from the circumstances that she was under official investigation for a violation of law. The defendant appealed, and the Superior Court reversed the conviction for False ID to Law Enforcement. Pennsylvania’s False ID statute simply does not make it a crime to merely provide police with a fake name. Instead, the statute provides:

A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law.

Thus, the statute requires that a defendant first be informed that the person is the subject of an official investigation of a violation of law. Trial courts and prosecutors have frequently tried to argue that defendants should be expected to infer that they are under official investigation for a violation of law from the circumstances, meaning that if a defendant is placed in handcuffs and interrogated by police officers, the defendant should realize that they are under investigation and therefore be able to violate the statute. The courts have rejected this theory repeatedly. Instead, as the court again recognized in Kitchen, the statute requires the police to actually speak to the defendant and explicitly tell them that they are under official investigation for a violation of law. If the officer does not testify to having made that statement to the defendant, then a defendant cannot be properly convicted of False ID to Law Enforcement for providing a fake name or other incorrect identifying information. The Pennsylvania Supreme Court had already reached this conclusion in the case of In re D.S., and here, the Superior Court found that the rule still applies. Accordingly, the Court reversed the defendant’s conviction for false identification to law enforcement.

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Getting Arrested Is Not a Probation Violation in PA

Philadelphia Criminal Lawyer Zak Goldstein

Is Getting Arrested a Probation Violation? 

The Superior Court has just decided the case of Commonwealth v. Moriarty, finding that violation of probation counsel was ineffective in failing to challenge the trial court’s finding that the defendant violated his probation solely by incurring an arrest on new charges. Moriarty involved the appeal of a Post-Conviction Relief Act (“PCRA”) Petition. 

Commonwealth v. Moriarty

In Moriarty, the defendant first pleaded guilty to Recklessly Endangering Another Person and Resisting Arrest. Pursuant to the negotiations, the trial court sentenced the defendant to one to twenty-three months and twenty nine days of incarceration on the REAP charge and one year of consecutive probation on the Resisting Arrest charge. The court then immediately paroled the defendant, thereby releasing him from custody. The terms of the probation and parole provided that he would commit a violation thereof by committing any other crimes. 

Daisy Kates Motions

The defendant was subsequently arrested on a new case and charged with Aggravated Assault and Terroristic Threats. The defendant’s back judge immediately lodged a probation detainer and appointed a defense attorney to represent the defendant. The Commonwealth, likely fearing it would not be able to prove its case beyond a reasonable doubt, filed a motion to revoke probation prior to the resolution of the defendant’s new Aggravated Assault case. This type of motion is called a “Daisy Kates” motion. A Daisy Kates motion asks the back judge to find the defendant in violation even though the defendant has not yet been convicted in the new case.

The constitutionality of these motions is currently debatable in light of the recent Pennsylvania Supreme Court case of Commonwealth v. Arter, but the defense failed to raise that issue in this case. The burden of proof in these types of probation hearings is lower than the beyond a reasonable doubt standard of a criminal trial. Instead, the Commonwealth must show that the defendant committed the crimes charged only by a preponderance of the evidence, which is a much lower standard. It is not uncommon for prosecutors to proceed in this manner when they have concerns that they may not be able to obtain a conviction at trial. These hearings are outrageously unfair both because the burden of proof is lower and the judge who will rule on the defendant’s guilt knows that the defendant has committed crimes previously and is on probation. Thus, the judge is already prejudiced against the defendant prior to hearing the evidence because the defendant was on the judge’s probation at the time that the defendant picked up the new case. 

The probation court scheduled a Daisy Kates hearing while the new charges were still pending against the defendant. At the hearing, the defendant’s back judge asked defense counsel if he wished to say anything on behalf of the defendant. Counsel responded that he had consulted with his client and the probation department and that he agreed with the actions that would be taken. In other words, counsel agreed that the defendant should be found in violation of his probation and parole. The judge asked the defendant if he acknowledged the violations of his probation or parole, and defense counsel interjected that the violations were that he had been arrested on new charges. The defendant agreed, so the court found him in violation of his probation and parole and sentenced him to his back time followed by an additional year of probation on the Resisting Arrest charge.

Ineffective Assistance of Counsel

Of course, the defendant was eventually acquitted in the new Aggravated Assault and Terroristic Threats case which served as the basis for the supposed probation violation. The defendant promptly filed motions seeking immediate parole, reconsideration of his sentence, and a Post-Conviction Relief Act Petition alleging that probation counsel had been ineffective in failing to challenge the alleged probation violation. The court granted the motion for immediate parole but denied the other motions, including the PCRA Petition. The defendant appealed.

The Appeal

On appeal, the Superior Court found that probation counsel had in fact provided ineffective assistance of counsel in failing to challenge the alleged probation violation. Counsel was ineffective because the Commonwealth proved only that the defendant had been arrested on new charges and waived the preliminary hearing on those charges.

In order to win a PCRA based on the ineffective assistance of counsel, a petitioner must show that counsel was ineffective, counsel lacked a reasonable, strategic basis for the actions taken in the representation, and that the petitioner was prejudiced due to the counsel’s failures. Here, the Superior Court concluded that counsel was ineffective in failing to challenge the probation violation.

An Arrest Is Not a Probation Violation

First, the Superior Court noted that an arrest, standing alone, does not constitute a probation or parole violation under Pennsylvania law. This is true even where a defendant waives the preliminary hearing as a preliminary hearing does not end in a finding of guilt. Instead, the Commonwealth must introduce at least some evidence beyond the mere arrest and waiver of a preliminary hearing to show that a violation of probation occurred. Typically, the Commonwealth must call at least some live witnesses to show that the defendant committed a crime. Here, the Commonwealth did not introduce any other evidence, so counsel was ineffective in conceding a probation violation based on an arrest alone.

Second, the Court held that the defense lawyer had no reasonable, strategic basis for failing to challenge the violation. Although defense counsel testified that he had recommended conceding the violation so that the defendant would be sentenced and thereby become eligible for work release, it actually turned out that the defendant was not eligible for work release under the general terms of work release enacted by the County Prison. Thus, the defendant gained nothing other than a 23 month jail sentence by failing to fight the alleged probation violation.

Third, the Court held that the defendant was prejudiced because he was sentenced to jail. Had the defendant asked the trial court to defer the probation violation hearing until the new case was resolved or challenged the Commonwealth’s ability to prove that he committed a crime, the defendant may have been released without any additional sentence. Notably, the Court suggested that it is preferable that probation violation hearings not take place until new charges are resolved because of the possibility that a defendant could be found in violation at a Daisy Kates hearing for committing a crime for which the defendant will later be acquitted at trial.

Given that the defendant established all three prongs of the test, the Superior Court granted the PCRA and vacated the trial court’s order revoking probation and re-sentencing him. The Superior Court went further and found that the defendant did not violate his probation. Therefore, it ordered the trial court to re-instate the original sentence and provide the defendant with time credit towards that sentence for the time spent in custody.

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PA Superior Court: Drug Overdose Response Immunity Statute Applies to Person Overdosing

Criminal Lawyer Zak Goldstein

The Superior Court has just decided the case of Commonwealth v. Lewis, holding that Pennsylvania’s Drug Overdose Response Immunity statute provides immunity for both the reporter of a drug overdose and the victim of a drug overdose, so long as the conditions of the statute are met. It also applies even where the victim of the overdose makes the call for help themselves and there is no separate reporter. Pennsylvania’s drug overdose immunity statute is very limited and does not provide immunity against serious felony charges, but this is a good opinion which encourages people who may be in the middle of a drug overdose to seek help instead of worrying about whether they will be arrested for minor drug offenses. 

Commonwealth v. Lewis

In Lewis, the defendant called 911 from her hotel room to report that she had overdosed on prescription pills. Police responded and took her to the hospital. While assisting her, police saw more pills and paraphernalia for smoking marijuana in her room. The police questioned her about the drugs, and she admitted that they belonged to her and that she smokes marijuana. Lewis received treatment at the hospital and recovered. Prosecutors, of course, charged her with possession of drug paraphernalia.

Prior to trial, Lewis moved to dismiss the charges, claiming immunity to prosecution under the Drug Overdose Response Immunity statute. The trial court denied the motion. The trial court ruled that the act did not apply to her case because 1) Lewis did not actually need immediate medical attention, and 2) the Act did not apply to self-reported overdose victims. The court ultimately convicted Lewis of drug paraphernalia in a bench trial and sentenced her to three months’ probation. Lewis appealed, arguing that the court should have granted her motion to dismiss because she was immune to prosecution under the act.

What is the Drug Overdose Response Immunity Act?

Pennsylvania has a very limited statute which seeks to encourage people who observe someone else in the middle of a drug overdose to call for help instead of worrying about criminal prosecution. In order to further this goal, it provides immunity to prosecution for minor drug offenses such as the knowing and intentional possession of a controlled substance for personal use and possession of drug paraphernalia. It also provides immunity against violations of probation and parole. Notably, it does not provide immunity to serious offenses. For example, the statute does not provide immunity to Possession with the Intent to Deliver charges or the extremely serious and increasingly-prosecuted homicide charges of Drug Delivery Resulting in Death.

Can I be prosecuted if I call for help for a friend who is overdosing?

In order to qualify for immunity, the defendant must meet three criteria:

1. the person reported, in good faith, a drug overdose event to a law enforcement officer, the 911 system, a campus security officer or emergency services personnel and the report was made on the reasonable belief that another person was in need of immediate medical attention and was necessary to prevent death or serious bodily injury due to a drug overdose;

2. the person provided his own name and location and cooperated with the law enforcement officer, 911 system, campus security officer or emergency services personnel; and

3. the person remained with the person needing immediate medical attention until a law enforcement officer, a campus security officer or emergency services personnel arrived.

The statute further addressees the victim of the overdose. It provides:

Persons experiencing drug overdose events may not be charged and shall be immune from prosecution as provided in subsection (b) if a person who transported or reported and remained with them may not be charged and is entitled to immunity under this section.

The statute has a good purpose, but it does not protect you if you call in an overdose and have potential criminal liability for drug distribution or drug delivery resulting in death.

The Statute Applies to People Who Call For Help with Their Own Overdose

The issue in this case arose because the plain language of the statute seems to imply that a second person has called in the drug overdose on behalf of the victim. It does not directly address what should happen when there is no second person and it is the victim themselves making the phone call for help.

The Superior Court, seeking to encourage more people to seek help instead of worrying about whether they will face minor drug possession charges, held that the statute did protect the defendant in this case. The Court noticed that the Act does implicitly condition the grant of immunity on the presence of two parties: a reporter and a victim. However, the Court found that the implicit requirement was unintended. The Act does not explicitly provide immunity for self-reporters, but excluding self-reporters from the immunity granted by the Act would result in an absurd result. Under the trial court’s reasoning, Lewis would not be immune because she called 911 herself. Had she called a neighbor and asked a neighbor to call 911, Lewis would have been immune had the neighbor done so and otherwise complied with the requirements of the statute.

The Superior Court recognized that the Legislature likely did not intend this absurd result, and therefore the Act should be interpreted to apply in situations such as this where the victim and the reporter were the same person. The Court also found that the trial court was too strict in interpreting the requirement that the person actually needed immediate medical attention. Instead, the Court ruled that the person must only reasonably believe that they need immediate medical attention to avoid serious bodily injury or death. Here, there was no evidence that Lewis’s belief was unreasonable. Accordingly, the Act applied and prevented her prosecution for drug paraphernalia charges. The Superior Court reversed the conviction. 

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PA Superior Court: Commonwealth May Not Rebut Claim of Self-Defense by Showing Defendant Has Prior Conviction for Violent Offense

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court just announced its decision in Commonwealth v. Crosley, holding that the Commonwealth cannot use a defendant’s prior conviction for a violent offense in order to rebut a defendant’s claim that the complainant was a violent person who started the altercation. Instead, testimony to this effect by a criminal defendant in an assault or homicide trial would open the door only to evidence of the defendant’s reputation for violence. This decision limits the Commonwealth’s ability to rebut claims of self-defense in that the Commonwealth may not tell a judge or jury that the defendant has a prior conviction for assault or some other violent crime.

Commonwealth v. Crosley

This case had an unusual set of the facts. It is unclear how the defendant and the decedent met, but at some point the decedent gave the defendant permission to live in his shed. The defendant was not allowed inside the house without permission. When it was cold, the decedent would permit the defendant to live in the basement of the house. Additionally, the decedent was married and had a child living at the residence.

Eventually, the decedent’s wife tired of this arrangement. She wanted the defendant off of the property, so the decedent went and told the defendant that he would have to move out. The decedent’s wife testified that the decedent was unarmed when he went to speak with the defendant.

While she was in the shower, the decedent’s wife heard what she believed to be a gun shot. She instructed her daughter to go check on the decedent. The daughter then went to the basement where she observed the decedent and the defendant struggling for a gun. Upon seeing this, the daughter ran upstairs and told her mother what she saw. The decedent’s wife then went to her window where she observed the defendant chasing the victim and shooting at him. She yelled at the defendant to stop, and the defendant replied that the decedent “takes me for a fool.”  The wife went outside and found the decedent lying on the sidewalk with a bullet hole in his chest. He was alive at this point and taken to a local hospital, where he succumbed to his injuries.   

Police arrested the defendant and questioned him. He waived his Miranda rights and gave a statement to the police. He claimed that he had shot the decedent in self-defense. He further told the police about prior incidents in which the decedent had possessed a gun and threatened the defendant with the gun. He mentioned one specific instance where he had disarmed the decedent and hid the decedent’s gun. He took the police to the location where he had hidden the gun. The police recovered the gun and some ammunition.

Prior Bad Acts in Self-Defense Cases

After the decedent died, prosecutors charged the defendant with Murder, gun charges, and possession of an instrument of a crime. Prior to trial, the Commonwealth filed a Motion in Limine asking the trial court to allow the introduction of the defendant’s existing Aggravated Assault conviction. The trial court held a hearing, and the court ruled that the Commonwealth could introduce evidence of the Aggravated Assault conviction if the defendant took the stand and told the jury that the decedent was a violent person and that he had acted in self-defense. Undeterred, the defendant took the stand and testified that the decedent was a violent person who had attacked him first. The defendant also testified that he, the defendant, never carried a weapon and was not a violent person. The jury convicted the defendant of third-degree murder and the gun charges. The Court sentenced him to a lengthy period of state incarceration followed by a period of probation and also ordered him to pay $7,864.72 in restitution to the Pennsylvania Victim’s Compensation Fund. The defendant appealed.  

What is Character Evidence?

The defendant raised several issues on appeal. First, he argued that the trial court erred in permitting the Commonwealth to introduce evidence of his prior Aggravated Assault conviction in order to rebut his assertion that the complainant was the violent aggressor. In general, character evidence is extremely important in Pennsylvania. Pennsylvania law permits criminal defendants to introduce character evidence to show that they are not the type of person who would commit the crime charged. In other words, a defendant who has no prior record may introduce evidence about his or her law abidingness, truthfulness, and non-violence to show that he or she would not have committed a crime. Under Pennsylvania law, the jury will then be instructed that character evidence alone may be enough for the jury to find reasonable doubt. Typically, in Philadelphia, if a defendant has good character, meaning no prior record, the Commonwealth will stipulate to it and the defendant may not have to call live witnesses to testify to the character evidence. When the defense does call character witnesses, the witnesses must testify only about the defendant’s good reputation for the relevant character traits; the witness may not testify about specific good things that the defendant has done or the witness’s own personal opinion.   

Although the defense may introduce character evidence, the Commonwealth generally may not introduce evidence of a defendant’s bad character or prior criminal history for the purposes of proving that the defendant is a bad person who would commit the crimes charged. The logic behind the rule is that just because an individual committed a crime at some point in their life, it does not necessarily follow that they committed this particular crime. However, there are exceptions to the rule. The Commonwealth may try to introduce evidence of prior convictions through Pa.R.Crim.P. 404(b).   

What is a 404(b) motion?

Although the Commonwealth may not introduce character evidence to show that a defendant committed a crime because he has a character for criminality, the Commonwealth can introduce prior criminal contacts to rebut certain defenses. The rules permit the Commonwealth to file a 404(b) Motion. A 404(b) motion is commonly referred to as a “Prior Bad Acts Motion,” and prosecutors file them to rebut certain defenses such as mistake, fabrication, lack of knowledge. The Commonwealth may also introduce these “bad acts” to show that it was part of the defendant’s Modus Operandi or was part of a common scheme.

Let’s do an example of common scheme. Suppose that an individual is charged with Possession with Intent to Deliver a Controlled Substance, or selling drugs. More specifically, let’s say that he is accused of selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets. Let’s also assume that he has a prior conviction for selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets from a month prior to the arrest of his current case. If the Commonwealth were to file a 404(b) motion to introduce that prior conviction, they would have a decent argument that the defendant is engaged in a common scheme to sell heroin with X stamps on the package at the southwest corner of D and Allegheny Streets. Technically, this example did not address the defendant’s character. However, if a judge or a jury hears that a defendant has a prior conviction for selling drugs and is currently on trial for selling drugs, it is much more likely that he will be found guilty of the current offense because juries have a very hard time disregarding the fact that the defendant has a prior conviction. Accordingly, these 404(b) motions can make or break a case.    

The Pennsylvania Superior Court Limits the Commonwealth’s Introduction of Character Evidence to Rebut a Claim of Self-Defense

In cases involving crimes of violence, however, the Commonwealth may sometimes introduce character evidence when the defendant raises the issue of self-defense. The prosecution may not introduce this evidence as part of its case-in-chief, but if the defendant introduces evidence that the complainant was the aggressor and a violent person, it opens the door for the prosecution to attack the defendant’s character.

As previously explained, there are different rules for the Commonwealth and defendants when it comes to introducing character evidence. The rule governing character evidence is Rule 405. Typically, as the Crosley court explained, only defendants can introduce specific instances of conduct and this can only be done for alleged victims. As such, a defendant cannot introduce specific instances of conduct to show his character for non-violence. He would need a witness to discuss his reputation for non-violence. However, if a defendant is attacking a victim’s character, he can then use specific examples (i.e. a prior conviction of the witness for assault) to show that the witness was a violent person.

In rebuttal, the Commonwealth may only attack the defendant’s character through reputation evidence. The Commonwealth cannot bring in specific instances (i.e. a prior conviction) to rebut his claim. Therefore, in Crosley, the lower court erred in admitting Mr. Crosley’s prior aggravated assault conviction to rebut his self-defense claim. The Commonwealth would have had to call someone who knew the defendant to speak about his reputation for violence to rebut his self-defense claim.

Unfortunately for the defendant, the Superior Court held that the trial court did not completely err in allowing the Commonwealth to introduce the conviction. The defendant testified at his trial that “[he] never [carries] a weapon.” The problem with this statement is that his prior conviction involved a weapon. Therefore, the Superior Court held that the Commonwealth was allowed to introduce this conviction (which was a guilty plea) to impeach him. The defendant’s other grounds for appeal were also denied. Specifically, there was sufficient evidence to show that he committed third degree murder (as stated above, there was a witness who saw him shooting at the victim) and that the record supported a factual finding that there were costs incurred in trying to save the victim’s life and ultimately the  disposition of his remains.

Call the Award-Winning Criminal Law Office of Goldstein Mehta LLC if You Are Charged with a Crime of Violence

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