PA Supreme Court: Participants in a Multi-Person Fight Are Not Automatically in a Conspiracy Together

The Pennsylvania Supreme Court Explains Conspiracy and Accomplice Liability and Reverses an Aggravated Assault Conviction

Criminal Defense Lawyer Zak T. Goldstein, Esq.

We previously wrote about the Pennsylvania Superior Court’s decision in Commonwealth v. Chambers. There, the Superior Court found that mace could constitute a deadly weapon where the use of the mace rendered the complainant vulnerable to and unable to defend himself from additional assaults from other people. This week, the Pennsylvania Supreme Court reversed the defendant’s conviction in Chambers, finding that the Commonwealth failed to prove either the existence of a conspiracy or accomplice liability beyond a reasonable doubt. Therefore, the Court reversed the defendant’s convictions for Conspiracy, Aggravated Assault, and possessing instruments of crime (“PIC”).

The Facts of Chambers

In Chambers, the defendant was charged with Conspiracy, Aggravated Assault, and related charges as a result of his participation in a street fight into which additional persons entered. The incident began when the complainant drove to an apartment complex in Philadelphia. Once the complainant arrived, he saw Chambers standing next to a Jeep which was blocking entrance to the driveway. The complainant beeped at the Jeep and asked Chambers and the Jeep’s occupants why they were blocking the driveway. He asked them to move. When they did not answer, the complainant continued to yell at them. Chambers did not say anything, but he gave the complainant a nasty look.

The complainant eventually drove up on the curb in order to drive by the Jeep and park. As he drove by, some kind of words were exchanged with Chambers. The complainant parked his car, approached Chambers, and asked Chambers why they were blocking the driveway. The verbal argument escalated into a fist fight, with Chambers throwing the first punch. The complainant defended himself. Once the incident became physical, other people jumped in and helped Chambers. A female approached the complainant from behind, tore his glasses from his face, and began scraping and scratching his cheek and forehead. The complainant continued to throw punches to defend himself, but he could not see what was going on. Chambers climbed on his back, pinned him down, and began punching him repeatedly. While Chambers was doing that, a woman sprayed mace in the complainant’s face. The witnesses did not identify any weapons other than the mace as being used during the fight.

Philadelphia Police eventually arrived on the scene and saw Chambers punching the complainant in the face. As the officer arrived, he heard some of the females in the group yelling at Chambers to stop. The officer grabbed Chambers, pulled him off of the complainant, and put him in his handcuffs. The complainant attempted to leave, but the officer grabbed him and also put him in cuffs. Chambers repeatedly yelled that he was going to kill the complainant in front of the officer. The officer observed that the complainant had a large cut on his face, and the complainant told the officer that someone cut him with a knife. The officer, however, searched everyone at the scene and did not find a knife. Additionally, witnesses testified that no one used a knife. There were also defense witnesses who testified that the complainant was much bigger than Chambers and had in fact instigated the fight. This defense witness also testified that he did not see a knife, but he heard Chambers yelling that the complainant had a knife and asking for others to find the knife.

Police transported the complainant to the hospital and decided not to charge him with any crimes. The complainant suffered broken ribs, a burned retina, a concussion, and a laceration above his eye which required stitches. Police decided to charge Chambers with aggravated assault, criminal conspiracy, possessing instruments of crime, terroristic threats, simple assault, and recklessly endangering another person.

Chambers proceeded by way of bench trial in the Philadelphia Court of Common Pleas, and the trial judge found him guilty of conspiracy and Aggravated Assault as a felony of the second degree. The trial judge’s decision to grade the Aggravated Assault as a second degree felony ultimately turned out to be critical to the appeal because Aggravated Assault as a second degree felony is very different from first degree felony Aggravated Assault.

F1 Aggravated Assault requires the causation or the attempt to cause serious bodily injury. F2 Aggravated Assault, however, involves causing or attempting to cause bodily injury with a deadly weapon. Recognizing that Chambers himself had not used any kind of weapon against the complainant, the Commonwealth argued that Chambers had at a minimum attempted to cause serious bodily injury. The trial court found that Chambers did not cause serious bodily injury but had instead cause bodily injury with a deadly weapon under a theory of conspiracy liability because of the female who entered the fight and sprayed the complainant with mace. Thus, in the initial appeal, the Superior Court upheld the decision of the trial court, finding that the mace could be a deadly weapon under the right circumstances.

The Supreme Court Appeal

Following the Superior Court’s decision, Chambers appealed again to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court does not have to hear every appeal and instead chooses the cases which it wishes to review. In this case, the Supreme Court granted certiorari and agreed to review the case. This time, Chambers’s defense attorneys argued that the Superior Court erred in finding that he was on the hook for the F2 Aggravated Assault of the unknown female with the mace because Chambers had not used a deadly weapon himself and had not instructed or encouraged anyone else to join the fight or use a weapon.

The Supreme Court agreed. It recognized that because Chambers had not used the mace himself, the convictions could only be sustained if Chambers had engaged in a conspiracy to commit Aggravated Assault or had acted as an accomplice.

What is a Criminal Conspiracy? 

First, the Court rejected the idea that Chambers had acted as part of a conspiracy to assault the complainant. Conspiracy is defined by the Pennsylvania Crimes Code as follows:

(a) Definition of conspiracy. - 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. 18 Pa.C.S. § 903(a).

Thus, in order to prove a conspiracy, the Commonwealth must show an agreement to commit a crime, shared criminal intent between the conspiracy members, and an overt act committed in furtherance of the conspiracy. Once the Commonwealth proves these three things, a defendant may be convicted of both conspiracy as a separate crime and the underlying offense or offenses that the conspirators planned to commit.

The difficulty for the Commonwealth in proving conspiracy is that unless it has obtained the testimony of a cooperating witness or has engaged in a wiretap, it is difficult to prove the existence of a prior agreement. This is particularly true when a fight breaks out and a bunch of people jump into the fight. The mere fact that people help each other during a fight, even when those people know each other or are friends, does not mean that they made a prior agreement to commit a crime. Of course, even a quick signal to start a fight such as a nod to the other person could be evidence of a conspiracy. But here, there was no evidence of that. Chambers exchanged words with the complainant and then engaged in a one on one fight. There was simply no evidence whatsoever that Chambers encouraged other people to jump in or use mace. Accordingly, the Court found that the Commonwealth failed to prove a conspiracy and therefore any liability for the underlying offenses beyond the Simple Assault, REAP, and Terroristic Threats that Chambers committed himself.

What is Accomplice Liability? 

Second, the Supreme Court also rejected the Superior Court’s reasoning that Chambers acted as an accomplice. Pennsylvania law provides the following definition for accomplice liability:

(c) Accomplice defined.—A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing it; or

(2) his conduct is expressly declared by law to establish his complicity.

(d) Culpability of accomplice.—When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

18 Pa.C.S. § 306.

The Supreme Court rejected the accomplice liability for two reasons. First, the Commonwealth had never before suggested that Chambers acted as an accomplice. It did not allege that he was an accomplice in the Bills of Information which it submitted prior to trial, and it never argued at trial that Chambers was an accomplice of the woman with the mace. Second, there was simply no evidence in the record whatsoever that Chambers had encouraged anyone else to do anything. He did not tell anyone else to join the fight and he did not ask anyone to use mace on the complainant. He did not even make any non-verbal signals towards the others who joined the fight. He simply had not done anything to solicit another person to commit a crime, and he had not aided or agreed or attempted to aid a person in committing a crime. Although he did hold the complainant down, the Court viewed it as clear that he held the complainant down for the purposes of punching the complainant himself. He did not hold the complainant down so that other people could mace him.

This is an excellent case because conspiracy is one of the most over-charged offenses in Pennsylvania. In virtually every case in which more than one defendant is charged with a crime, the Commonwealth will tack on a conspiracy charge even when there is little or no evidence that the defendants agreed in advance to commit a crime. This is particularly true in cases involving fights among large groups of people. It is a fundamental to criminal law that people should be responsible for their own actions and not the actions of others. Thus, a person should not be on the hook for someone else’s decision to jump into a fight and use a weapon if that first person had nothing to do with that decision and was engaged in a “fair” one on one fight.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today .

PA Supreme Court: Rule 600 Speedy Trial Motion Not Always Waived by Defendant’s Bench Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Barbour, holding that a defendant does not waive the speedy trial protections of Rule 600 by failing to appear for court without cause after the 365-day period for bringing a defendant to trial has already expired. Barbour is the second recent pro-defense decision from the Pennsylvania Supreme Court in recent months, suggesting that the Court has finally recognized that recent decisions of the Superior Court had completely eviscerated the rule’s protections and allowed defendants to languish in prison for years without trials through no fault of their own. 

The Issues in Commonwealth v. Barbour

The issue in Barbour was whether a defendant’s unexcused failure to appear for court waives the protections of Rule 600 even where the defendant’s 600 rights were already violated prior to the date on which the defendant failed to appear. As a general rule, Rule 600 of the Pennsylvania Rules of Criminal Procedure requires the Commonwealth to bring a criminal defendant to trial within 365 days of the filing of the complaint. If the Commonwealth fails to bring the defendant to trial within that time period, then the case should be dismissed with prejudice, meaning the Commonwealth cannot re-file the charges. 

In theory, the rule seems simple. In practice, it is much more complicated for a number of reasons. First, time between court dates for which the defendant is responsible for the delay do not count towards the 365-day calculation. This means that if the defendant requests a continuance of a hearing, then the time until the next hearing does not count for Rule 600 purposes.

Second, over the years, the Superior Court has created all sorts of absurd exceptions for why time does not count against the Commonwealth even when it’s the Commonwealth’s fault that that the case was continued. For example, trial courts routinely fail to count time during which the prosecutor was “duly diligent” but nonetheless could not proceed to trial on a given date. These types of continuances which do not count against the Commonwealth could include periods of time during which the defendant was not brought to court from custody or police officers were sick or injured on duty, or even where the prosecution simply needed more time to investigate the case and prepare for trial. Additionally, where the prosecution is ready to proceed but the trial judge is busy hearing a different case, the time will often be excluded from the Rule 600 calculation. 

Recent years have shown a marked trend of appellate courts forgiving every possible delay because of the reluctance to dismiss serious criminal charges based on what many would view as a technicality. However, the failure to protect a defendant’s right to a speedy trial has real costs to both the defense and the prosecution. When a defendant remains in jail waiting for trial for a year or more, the defendant could lose his or her job, home, and contact with his or her family all while presumed innocent.

Likewise, the prosecution’s case generally does not get better with age; witnesses may move out of the jurisdiction or forget key details about the incident, police officers may retire or get indicted, and prosecutors and detectives may lose evidence. Thus, Rule 600 really protects both sides. It protects the accused, who should not have to deal with the threat of criminal charges or pre-trial incarceration for lengthy periods of time, and it protects the prosecution, who benefits from proceeding to trial in a reasonably prompt manner. After years of decisions excusing endless delay from the courts and prosecutors, the Pennsylvania Supreme Court has finally begun to enforce the protections of Rule 600. 

In the prior cases of Commonwealth v. Steltz and Commonwealth v. Brock, the Supreme Court held that a defendant forever waives the protections of 600 by failing to appear for court as required. The rationale behind those decisions was that if a defendant fails to appear and obtains a bench warrant, then the defendant may then be brought to trial at the prosecution’s convenience.

In this case, the defendant obtained a bench warrant for failure to appear back in 2004. In 2014, the defendant was arrested on the bench warrant, and the court scheduled a new trial date. Prior to trial, the defendant moved to dismiss the charges pursuant to Rule 600. The defendant argued that this case was different from Steltzand Brock because in those cases, the defendants bench warranted prior to the expiration of the 365-day period. Here, however, the defendant’s bench warrant was issued after the Commonwealth had already failed to bring him to trial within 365 days. Thus, the defendant argued that he should not be able to waive Rule 600 where the Commonwealth had already violated the rule. 

Ultimately, the Supreme Court agreed. It re-affirmed the rule of Brock and Steltz that a bench warrant prior to the expiration of the 365-day period waives Rule 600, but it also held that where the Commonwealth has already violated Rule 600 prior to the bench warrant, the defendant’s unexcused absence at trial does not waive the protections of the rule. This is a good, but narrow, decision which will make the waiver doctrine of Steltz and Brock slightly less punishing for those who have already had their rights violated. 

Philadelphia Criminal Defense Attorneys

Facing criminal charges? We can help.

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients against all types of criminal charges in Pennsylvania and New Jersey. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

When is Simple Assault a misdemeanor of the third degree in Pennsylvania?

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hodges, holding that the defendant bears the burden of proving at sentencing that a “mutual combat” Simple Assault should be graded as a misdemeanor of the third degree instead of a misdemeanor of the second degree. This is an important decision because it makes it easier for the Commonwealth to obtain the conviction for the higher-graded Simple Assault, and that charge cannot be expunged or sealed.  

What is the gradation of Simple Assault in PA?

Under Pennsylvania law, there are two types of Simple Assault. The most common variety of Simple Assault is a misdemeanor of the second degree. It simply involves knowingly, intentionally, or recklessly causing or attempting to cause bodily injury to another person. For example, punching someone in the face one time is usually going to be a Simple Assault unless very severe injuries occur. A misdemeanor of the second degree is punishable by up to two years in prison and a $5,000 fine. Simple Assault (M2) also cannot be expunged or sealed pursuant to a limited access order. Therefore, a conviction for Simple Assault as an M2 will stay on your record for life unless you obtain a pardon from the Governor. 

Alternatively, Simply Assault can also be a misdemeanor of the third degree. The statute provides that when the Simple Assault was part of a mutual combat, then the court should instead grade Simple Assault as an M3. An M3 is punishable by up to one year in prison and a $2,000 fine. More importantly, Simple Assault (M3) is subject to Pennsylvania’s new limited access order law. This means that if you are convicted of Simple Assault (M3), you may petition the court to seal the conviction after ten years if you remain arrest-free during that period. Although this is not quite the same as an expungement, it drastically reduces the likelihood that potential employers are going to find out about the prior conviction. Law enforcement agencies and state licensing authorities will still have access to it, but the general public will not. Additionally, it is not possible to receive a state prison system for an M3, whereas an M2 could result in a state prison sentence because of the potential two year maximum.  

Who has to prove whether the Simple Assault is an M3 or an M2? 

The issue in Hodges is whether the Commonwealth or the defendant bears the burden of proving the degree of the Simple Assault. In Hodges, the defendant was convicted of Simple Assault by a jury. He appealed, arguing in the Superior Court that the trial court gave him an illegal sentence when it sentenced him on Simple Assault as a misdemeanor of the second degree because the Commonwealth never proved beyond a reasonable doubt that he had not engaged in a fight by mutual consent.

The Superior Court rejected this argument. It found that the issue of whether the charge should be graded as an M2 or an M3 is a sentencing issue which must be determined by the trial judge. Where the factfinder concludes beyond a reasonable doubt that the defendant has committed a Simple Assault, the default gradation is the misdemeanor of the second degree. However, the defendant may then introduce additional evidence or make argument at sentencing that the judge should reduce the gradation of the charge to the third-degree misdemeanor based on the mutual consent section. In Hodges, the defendant never made that argument at sentencing, and therefore, the claim was waived. Had the defendant made this argument at sentencing, it is possible that the court would have reduced the gradation of the charge. Unfortunately, his defense attorney did not.

Notably, the VUFA 6106 gun charge statute which prohibits carrying a concealed firearm without a license has a similar gradation scheme. By default, a violation of VUFA 6106 is a felony of the third degree. However, the appellate courts have held in prior cases that the defendant may ask the court to find that a VUFA 6106 conviction should be graded as a misdemeanor of the first degree if the defendant can show that he or she was otherwise eligible to obtain a concealed carry permit and was not facing any other charges at the same time. Thus, the Superior Court has held that it is the defendant's burden in these types of cases to show that the defendant is eligible for a reduction in gradation. It is extremely important that defense counsel be aware of this burden as it may be too late to make the argument on appeal as it was for Hodges. 

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers

If you are facing criminal charges in PA or NJ, we can help. We have successfully defended thousands of clients in assault cases and against all types of criminal charges. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding criminal defense attorney today.    

PA Superior Court: Violation of Philadelphia Police Directives Does Not Require Suppression of Drugs

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McCleary, holding that suppression of the evidence is not required when Philadelphia Police Officers violate their own police department’s directives. In McCleary, the Court reversed the decision of the trial court and ruled that drugs recovered by the police officers may be admissible at trial even though police did not follow department protocol related to obtaining consent to a search of a private home. 

The Facts of Commonwealth v. McCleary

In McCleary, Philadelphia police officers responded to a radio call for a burglary in progress at a certain address. When they arrived at that address, they walked into the eventual-defendant’s house through an open door. In the living room, they found the defendant speaking with two other police officers. The arriving officers relieved the two who had already arrived and tried to figure out what was going on.

The defendant told the police officers that a woman who was present on the scene had tried to break into his home and that he had a valid Protection from Abuse (“PFA”) order against her. The woman responded that she lived there, had the right to be present in the home, and that she had belongings in the second-floor bedroom which would prove that she lived there. The officers did not take any steps to verify if the defendant in fact had a valid PFA.

Instead, the officers asked the defendant if they could see if the woman had belongings in the second-floor bedroom. The defendant twice told them that they could. The officers then walked upstairs to the bedroom. In the bedroom, they found in plain view a scale, a sandwich bag with marijuana, a box of unused drug packaging, eleven bags of crack cocaine, and clear plastic Ziploc bags. The defendant told the officers that the drugs belonged to him. The officers arrested him and charged him with Possession with the Intent to Deliver.

Motion to Suppress the Drugs

The defendant filed an omnibus pre-trial motion to suppress his statements and the drugs. The trial court held a hearing on the motion to suppress and ultimately granted the motion to suppress. The trial judge found that police violated with Philadelphia Police Department Directive 5.7, Sections 12 through 16, which address the procedure by which Philadelphia Police Officers are expected to obtain valid consent to search a home. The court found that the officers violated their own police directives by failing to obtain signed consent, failing to inform the defendant of his right to refuse consent, failing to consult with a supervisor, and failing to verify the defendant’s valid PFA and arrest the woman who was alleged violating it. The trial court granted the motion to suppress and ruled that the evidence would be inadmissible at trial, thereby essentially excluding the Commonwealth’s entire case.

The Commonwealth’s Appeal

The Commonwealth appealed to the Superior Court. In the appeal, the Commonwealth argued that Philadelphia Police Directives do not have the force of law. The Commonwealth argued that because police are not required by law or the constitution to follow them, the remedy for a violation of the directives should not be suppression of the evidence.

The Superior Court agreed with the Commonwealth’s arguments. It found that exclusion of the evidence via a successful Motion to Suppress is only required where the Government has violated a person’s right to be free from an unreasonable search and seizure as provided by the Fourth Amendment to the United States Constitution and Article I Section 8 of the Pennsylvania Constitution. Exclusion is not automatically warranted simply because the police failed to comply with a Rule of Criminal Procedure or the police department’s directives or regulations. Instead, suppression is only required when the police violate the constitution or certain statutes.

When can police search a home without a warrant? 

The Superior Court held that the question was not whether police violated their directives; instead, the question which the trial court should have addressed was whether the police obtained constitutionally valid consent to search the property. Although law enforcement officers must ordinary obtain a search warrant prior to searching a home, there are some exceptions to this rule. One of the main exceptions to the warrant requirement is consent. If you tell the police that they can search your house, then they do not have to get a warrant prior to doing so. 

How will a court decide if police voluntarily obtained consent to search a home? 

In evaluating consent, previous appellate decisions have suggested that courts consider the following factors:

1. the presence or absence of police excesses;

2. whether there was physical contact;

3. whether police directed the citizen’s movements;

4. police demeanor and manner of expression;

5. the location and time of the interdiction;

6. the content of the questions and statements

7. the existence and character of the initial investigative detention, including its degree of coerciveness;

8. the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, thus suggesting to a citizen that his movements may remain subject to police restraint; and

9. whether there was an express admonition to the effect that the citizen-subject is free to depart, which is a potent, objective factor.

Here, the Court evaluated the factors and found that there was nothing coercive about the police request to see the rest of the home. Certainly, they should have followed their directives, but their failure to do so did not rise to the level of a constitutional violation. Accordingly, the Superior Court reversed the decision of the trial court and ruled that the drugs may be admissible in the prosecution for Possession with the Intent to Deliver.

Notably, one of the three judges on this panel dissented, arguing that the trial court had in fact found that the police officers simply were not credible on the issue of whether they truly obtained consent. The trial court simply considered the violation of the directives as part of analyzing whether the police were telling the truth. This is important because once the defense files a motion to suppress in Pennsylvania, the Commonwealth must produce sufficient evidence to show that it is more likely than not that the police complied with the United States and Pennsylvania Constitutions during the search and/or interrogation. If the trial judge finds that the police are not credible, then the judge may grant the motion to suppress for that reason even if what the police claim they did was legal. Thus, on remand, the defense may still argue that the judge found that the police were not credible and that the judge should clarify his or her opinion. However, it is clear that as a matter of law, a violation of the Philadelphia Police Department’s Directives does not automatically result in suppression of the evidence.

Facing criminal charges? We can help.

Philadelphia Criminal Lawyers

If you are facing criminal charges, we can help. We have successfully defended thousands of clients at the trial and appellate level in courts throughout Pennsylvania and New Jersey. We know the law and the defenses that will work in your case, and we recognize the types of defenses and arguments that are going to withstand appellate scrutiny. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.