Philadelphia Criminal Defense Blog

Zak Goldstein 9/5/18 Zak Goldstein 9/5/18

PA Superior Court: Defendant in Sexual Assault Case May Testify That He Caught Complainant Cheating and Told Her Boyfriend

The Pennsylvania Superior Court has decided the case of Commonwealth v. Palmore, holding that the trial court violated the defendant’s Confrontation Clause rights when it prohibited the defendant from testifying that he believed the complainant fabricated sexual assault allegations against him in order to discredit him and his attempts to tell the complainant’s boyfriend that he saw her performing oral sex on his roommate. This is one of only a handful of favorable appellate court rulings for the defense on whether a defendant may introduce any evidence relating to a rape complainant’s sexual history without violating Pennsylvania’s “Rape Shield Law.”

The Facts of Palmore

In Palmore, the defendant was a student at a college in Pennsylvania. One night, he hosted a party in his on-campus dorm room. He met the complainant during that party. The complainant claimed that two weeks later, the defendant forced himself on her, kissed her, placed one hand under her shirt and touched her breast. She claimed he then put his hand down her pants and touched her vagina. She testified that she protested throughout the sexual assault.

The Commonwealth arrested the defendant and charged him with indecent assault, disorderly conduct, and harassment. Prior to trial, the defendant moved to pierce the “rape shield” and admit evidence relating to the complainant’s past sexual conduct. Specifically, the defendant alleged that he had witnessed the complainant performing oral sex on his roommate. He argued that he confronted her about cheating on her boyfriend and that he later told her boyfriend about the cheating. He said that he both told the boyfriend verbally and then later discussed it with the boyfriend again via Facebook Messenger. He alleged that she fabricated the allegations of indecent assault against him so that her boyfriend would not believe him regarding the cheating incident with the defendant’s roommate. The trial court denied the motion to pierce the rape shield, finding that the evidence was not relevant and that the defendant could not introduce the evidence due to Pennsylvania’s Rape Shield Law.

The jury found the defendant guilty of all three charges. The trial court conducted a hearing to determine whether the defendant should have to register for life as a Sexually Violent Predator and concluded that he should, thereby requiring lifetime Megan’s Law registration. The trial court also sentenced the defendant to 228 to 729 days’ incarceration. The defendant appealed, arguing that the trial court erred in denying his motion to pierce the rape shield.

What is the Rape Shield Law?

Pennsylvania, like most states, has a Rape Shield Law. In general, a Rape Shield Law prevents a defendant from introducing evidence of a sexual assault complainant’s sexual history in order to discredit that witness. The purpose of the law is to prevent a defendant from introducing a complainant’s sexual history in order to smear the complainant and show that the complainant is promiscuous. The Pennsylvania statue reads:

Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions . . . except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

The actual language of the statue appears to prohibit all evidence relating to a complainant’s sexual history that does not relate to a sexual history with the actual defendant charged with the crime. Courts have concluded, however, that the statute must be read in such a way that it will not violate a defendant’s rights under the Pennsylvania and United States Confrontation Clauses. Therefore, there are other exceptions to the Rape Shield Act beyond the exception explicitly mentioned in the statute.

What is the Confrontation Clause?

Both the Pennsylvania and United States Constitutions contain a Confrontation Clause. The Confrontation Clauses provide that in a criminal prosecution, the defendant must have the right to confront the witnesses against him or her. Confrontation has been interpreted by appellate courts as meaning cross-examination. Thus, courts, have held that rules that limit a defendant’s right to introduce relevant evidence through cross-examination of a complainant may violate the Confrontation Clause.

In order to harmonize the Rape Shield Act with the defendant’s right to confrontation, courts have found that a defendant may pierce the rape shield in certain cases when the evidence which the defendant seeks to introduce would show not that the complainant is promiscuous or sexually active but instead that the complainant has some motive to fabricate the allegations of sexual assault. Thus, the Rape Shield Law may not be used to exclude relevant evidence showing a witness’s bias or attacking a witness’s credibility.

In order to pierce the rape shield, the defendant must file a written motion in advance which contains the allegations that the defendant believes support introducing this type of evidence. If the defendant fails to file the motion in advance, the evidence may be excluded. After the defendant provides notice in the form of a written motion, the trial court must determine if the proffered reason for introduction of past sexual conduct evidence is merely speculation or conjecture. If it is, then the motion should be denied. If it is not, then the trial court must hold an in camera (non-public) hearing to evaluate the evidence.

In evaluating the evidence, the trial court must consider three factors:

Whether the evidence sought to be admitted is relevant to the accused’s defense,
Whether the evidence sought to be admitted is merely cumulative of evidence otherwise admissible at trial, and
Whether the evidence which the accused wishes to introduce at trial is more probative than prejudicial.

If the answer to each question is yes, then the trial court must permit the defendant to introduce the proffered evidence. Otherwise, the court would violate the defendant’s right to confront his accuser.

The Superior Court’s Ruling in Palmore

The Superior Court ruled that the evidence should have been admitted. The trial court held the hearing, so the court must have concluded that the evidence was not mere conjecture or speculation. The Superior Court also concluded that the evidence was relevant because it went directly to the complainant’s credibility. It gave her a reason to fabricate the allegations against the defendant. It was not cumulative because there was no other way for the defendant to establish that the complainant had fabricated the allegations or had a reason to fabricate the allegations.

However, the trial court had found that the evidence was more prejudicial than probative. The Superior Court rejected this analysis; it found that the defendant was not seeking to impugn the complainant’s character or label her as a promiscuous college student. Instead, he sought to introduce the evidence to get to the truth by challenging her credibility. Thus, the evidence would not have violated the Rape Shield Law by shifting the focus of the trial from whether the defendant committed the crime charged to a trial on the “virtue and chastity of the victim.” The evidence offered was key to the defendant’s defense, and he had no other real opportunity to challenge the complainant’s credibility. Therefore, it should have been admitted, and the trial court violated his Confrontation Clause rights by precluding it. The defendant will receive a new trial at which the evidence will be admissible.

Facing criminal charges? We can help.

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense attorneys have successfully defended thousands of clients. We have represented clients in serious cases involving allegations of rape, homicide, aggravated assault, robbery, and other major felonies. We are experienced and understanding criminal defense lawyers who will use our skill and expertise to fight for you. We offer a free 15-minute criminal defense strategy session to any potential client. If you are facing criminal charges or may be under investigation, call 267-225-2545 to start building your defense today.

Zak Goldstein 9/1/18 Zak Goldstein 9/1/18

PA Superior Court: Trial Attorney Probably Ineffective for Failing to Request Unmarked Police Car Jury Instruction in Fleeing Case

The Pennsylvania Superior Court has decided the case of Commonwealth v. King, holding that the trial court erred in dismissing the defendant’s Post-Conviction Relief Act Petition without an evidentiary hearing. In King, the defendant filed a PCRA challenging his conviction for felony Fleeing on the basis that his trial attorney failed to request a jury instruction related to the statutory defense that a person may not be guilty of fleeing if the pursuing police officer is driving an unmarked car and not in uniform. The Superior Court mostly agreed with the defense and remanded the case for an evidentiary hearing on whether the trial attorney had a reasonable, strategic basis for failing to request the instruction.

The Facts of King

In King, the defendant was charged in Allegheny County with Fleeing and Attempting to Elude Police. At trial, the Commonwealth introduced evidence showing that the defendant was pursued by plain-clothes officers in an unmarked car. The defense attorney never requested a jury instruction related to the statutory defense that fleeing from a plain-clothes officer in an unmarked car may not constitute the crime of Fleeing and Eluding. Accordingly, the defendant was found guilty and sentenced to a period of incarceration.

Following his conviction, the defendant filed a Post-Conviction Relief Act Petition arguing that his trial attorney was ineffective. The fleeing statute generally makes the following conduct a felony:

(a) Offense defined.--Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits an offense as graded in subsection (a.2).

However, the statute also provides a defense to the charges:

(1) It is a defense to a prosecution under this section that the pursuing police officer’s vehicle was not clearly identifiable by its markings or, if unmarked, was not occupied by a police officer who was in uniform and displaying a badge or other sign of authority.

When a statute provides a defense of this nature and there is evidence in the record to suggest that the defense may apply, defense counsel generally needs to request that the trial judge read a jury instruction to the jury at the close of the trial so that the jury can evaluate whether the defense applies. The failure to request the right jury instructions can be the ineffective assistance of counsel. Here, the defendant’s trial lawyer failed to request an instruction for this defense. Thus, the defendant’s PCRA Petition alleged that his trial lawyer was ineffective in failing to request the appropriate jury instruction for this defense.

What is ineffective assistance of counsel?

There are two primary ways to challenge a conviction in Pennsylvania state court. The first method of challenging a conviction is to file a direct appeal to the Superior Court. A direct appeal focuses on whether the trial judge committed legal error – meaning did the judge overrule objections that should have been sustained or permit the Commonwealth to introduce evidence that was seized in an unconstitutional manner. In order to raise an issue on direct appeal, the defense attorney must have made the appropriate objection or request so that the trial judge could rule on the issue. Otherwise, the issue will be waived on appeal. Here, the defense never requested the jury instruction, so this issue could not be litigated in a direct appeal. If the defense had requested the instruction and the judge had refused to give it, then the issue would have been addressed in a direct appeal.

The second method for challenging a conviction, which typically places after a direct appeal has been denied, is to file a Post-Conviction Relief Act Petition. A PCRA Petition allows a defendant to receive a new trial if the defendant can show that the trial attorney provided the ineffective assistance of counsel.

In order to win a PCRA Petition based on a claim of ineffective assistance of counsel, a defendant must plead and prove three things:

The underlying claim has arguable merit;
No reasonable basis existed for counsel’s action or failure to act;
The petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different.

The Superior Court’s Decision

Here, the defendant alleged that the defense attorney was ineffective at trial in failing to request the jury instruction. The trial court denied the petition, finding that the defense did not apply because the testimony showed that the police officers had lights and sirens on their car and had used the lights and sirens during the chase. The trial judge ruled that he would not have provided the jury instruction even if defense counsel had requested it because the cars were marked by the lights and sirens.

After the trial court denied the defendant’s Petition, the defendant appealed to the Superior Court. The Superior Court reversed the decision of the PCRA Court, finding that the defendant’s claim both had arguable merit and that the defendant had suffered prejudice. The court noted that the defense is available when a defendant can show two things: 1) that the police vehicle was “unmarked,” and 2) that it was not occupied by a police officer who was in uniform. The Superior Court further concluded that the lights and siren do not qualify as a marking for purposes of the statute. The statute itself does not define markings. However, the Pennsylvania Administrative Code contains a section governing the use of unmarked police vehicles. It defines a marked police vehicle and unmarked police vehicle as follows:

Marked police vehicle--A police vehicle that is equipped with at least one light-bar assembly anddisplays graphics, markings or decals identifying the agency or department on a minimum of three sides (front, rear, left or right).

Unmarked police vehicle--A police vehicle not equipped with a roof mounted light-bar assembly. The vehicle may display graphics, markings or decals, identifying the agency or department.

Given this definition, it is clear that a marked police vehicle must have both lights and decals that identify the agency or department on at least three sides. Therefore, the term markings as included in the statute’s defense requires more than just the lights and siren. Thus, defense counsel probably should have requested the jury instruction for the statutory defense because it would have applied.

Although the Superior Court agreed with the defendant, it did not immediately reverse his conviction. Instead, the court recognized that PCRA litigation also requires a consideration of whether defense counsel had some reasonably strategic basis for the decision made. The court remanded the case to the trial court for an evidentiary hearing on whether the defense attorney had some strategic reason for failing to request the instruction. If the defense attorney did not, then the trial court should vacate the conviction and order a new trial.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. We have obtained successful results in trials, appeals, and post-conviction relief act litigation in cases involving charges of homicide, rape, possession with the intent to deliver, and other serious crimes. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an award-winning criminal defense lawyer today.

Zak Goldstein 8/31/18 Zak Goldstein 8/31/18

PA Superior Court: If you travel from your house to sell drugs to a CI, the police can get a warrant for your house.

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Kemp, finding that the police properly obtained a search warrant for the defendant’s house where police had twice seen the defendant travel from his house directly to a location where he engaged in drug transactions with a confidential informant. The court further held that police had the authority necessary to frisk the defendant when they executed the search warrant because when they arrived, he was nervous, made quick movements, dropped a bag, and backed away from them.

The Facts of Kemp

Kemp centered around whether the police properly obtained a search warrant for the defendant’s home. In their investigation, the police spoke with a confidential informant who they had previously used. The CI told them that he had purchased marijuana from the defendant multiple times over the past couple of years. The CI provided the officers with the defendant’s cell phone number and told them that he usually sells vehicle from a Jeep Cherokee or white Cadillac DTS. The CI also told police that the defendant was a SEPTA bus driver and that he had purchased marijuana from him within the past six months.

After receiving this information, the police investigated the cell phone number that the CI had provided and determined that it was registered to the defendant. Police also knew the defendant’s address from prior contacts. They also knew that he was in fact a SEPTA driver because a police report had been made on a previous occasion when the defendant had been involved in a car accident while driving a bus.

In March 2015, the police met up with the CI to engage in controlled buys of marijuana. The officer had the CI call the defendant and place an order for marijuana. The defendant agreed to sell the CI marijuana and set a location for the sale. At the same time, other officers monitored the defendant’s home. Officers observed the defendant leave his home, enter a white Cadillac DTS, and drive directly to the proposed location without making any stops. They then watched him meet with the CI and sell marijuana to the CI. The CI then returned to the officers and provided them with the marijuana. The CI confirmed that he had just purchased the marijuana from the defendant. 48 hours later, the police used the same procedures to have the CI make a second marijuana purchase. Again, the defendant traveled directly from his house to the sale location without making any stops.

The officers then obtained a search warrant for the defendant’s house. When they arrived to execute the warrant, they saw the defendant exiting the house while carrying a black plastic bag. One of the officers exited his vehicle, identified himself as a police officer, and told the defendant that he had a search warrant for the house. The defendant put the bag on the ground and began to back away. The police then handcuffed him, frisked him, and recovered a gun. At the suppression hearing, the officer testified that he knew that the defendant owned multiple guns and had a license to carry a concealed firearm. Accordingly, the frisk was for his own safety. After finding the gun, police told the defendant that they were going to search the house. They asked where the defendant’s dogs were, and the defendant then accompanied them into the house. While they were approaching the house, the defendant again began to pull away. Officers then conducted a second search of the defendant and found marijuana in his socks.

The Motion to Suppress the Drugs

The defendant moved to suppress the gun and the marijuana recovered from his socks. He argued that there was no probable cause for the police to search his house and therefore the search warrant was defective. The defendant’s argument focused on the fact that the CI never told the police that he had seen marijuana in the defendant’s house and that the police never saw any drug transactions in or near the house. The defendant also challenged the frisk that police conducted when they arrived at the house to execute the warrant, arguing that they did not have the authority to search him outside of his house. The trial court denied the motion to suppress. The defendant was convicted of Possession with the Intent to Deliver and sentenced to a county jail sentence. Although the defendant had no prior record and the guidelines should have called for probation, the trial court used a sentencing guideline enhancement for selling drugs in a school zone and therefore imposed a jail sentence.

The Superior Court Appeal

The defendant appealed to the Superior Court. On appeal, the defendant challenged the denial of the motion to suppress as well as the sentencing guidelines used in sentencing him. The Superior Court affirmed the decision of the trial court to deny the motion to suppress. It found that the police had properly established probable cause for the search of the defendant’s home because the defendant had traveled directly from the home to the location of the drug sales on two occasions without stopping anywhere along the way. Therefore, the police had sufficient reason to believe that the defendant was storing the marijuana in his house. Had he stopped somewhere before making the sales, there may not have been probable cause for the house. But because he traveled directly to the controlled buys, the warrant was not lacking in probable cause.

The Superior Court also upheld the frisk of the defendant. It recognized that when police are executing a valid search warrant, they have the authority to detain people on the promises as well as those who have recently exited and are outside the premises. Police may also engage in a frisk when they have reasonable suspicion that a person is armed and dangerous. Here, the police were justified in detaining the defendant because they had a search warrant and he had just exited the home. They were also permitted to frisk him because he appeared uneasy, dropped a bag, and backed away from the officers. The officers also knew that the defendant owned multiple guns and had a concealed carry permit. Therefore, they had reasonable suspicion that the defendant could be armed. They were also justified in the second, more intrusive search of the defendant's socks because the defendant had in fact been armed and because they had watched him sell drugs to a CI twice. Accordingly, the Superior Court affirmed the defendant’s conviction.

At the same time, the court vacated the defendant’s sentence and remanded for a new sentencing hearing. Based on the defendant’s prior record score of zero and the low offense gravity score for selling marijuana in the quantity involved, the sentencing guidelines recommended a sentence of Restorative Sanctions (probation) to nine months plus or minus three months. However, the Commonwealth had argued for but failed to sufficiently prove that the sales took place within a school zone. Had the Commonwealth proven that the sales took place in a school zone, it would have made the defendant’s sentencing guidelines 12 – 30 months. But because the Commonwealth failed to present sufficient evidence, the defendant was sentenced under the wrong guidelines and was entitled to a new sentencing hearing.

Facing criminal charges? We can help.

If you are facing criminal charges or believe you may be under investigation by the police, we can help. Our experienced and understanding Philadelphia criminal defense attorneys have successfully defended thousands of clients. We are award-winning criminal lawyers who will fight for you in jurisdictions throughout Pennsylvania and New Jersey. We have won countless cases involving drug charges, gun charges, and other allegations of serious criminal wrongdoing. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense attorney today.

Zak Goldstein 8/29/18 Zak Goldstein 8/29/18

PA Superior Court: Commonwealth May Not Show Photos of Now-Adult Sexual Assault Complainant as Child

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Vucich, holding that the trial court erred when it permitted the Commonwealth to introduce photographs of the now-twenty-year-old complainant as a ten-year old child. In other words, the court found that there was no relevance to how the complainant would have appeared at the time of the alleged sexual assault.

The Facts of Vucich

In Vucich, the defendant was charged with rape of a child, involuntary deviate sexual intercourse, unlawful contact with a minor, corruption of minors, and indecent assault. The Commonwealth alleged that the defendant repeatedly molested his then ten-year-old step-son after he married the complainant’s mother and moved into the home. The complainant did not disclose the abuse until ten years later. He eventually told his therapist, and then subsequently told his mother. The defendant was found guilty of all charges except rape of a child and sentenced to 10-20 years of incarceration.

The Superior Court Appeal

Following his conviction, the defendant appealed to the Pennsylvania Superior Court. The defendant raised a number of issues. However, the most interesting issue that he raised was whether the trial court had improperly allowed the Commonwealth to introduce photos of what the complainant looked like when he was ten years old.

The defendant argued that the photographs were irrelevant and therefore inadmissible. Relevant evidence is evidence that logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact. The defendant argued on appeal that the photos were not relevant because the complainant’s appearance at the time of the alleged abuse did not establish any material fact. What he looked like was not the question. Instead, the only issue was whether the abuse had occurred, and therefore showing the jury what the complainant looked like as a child served only to prejudice the jury against the defendant.

The trial court, however, concluded that the photographs were admissible to help the jury picture the complainant as a child so that the jury could better evaluate his testimony. Likewise, the Commonwealth advanced this argument again in defending the appeal.

The Superior Court, however, rejected the argument. It noted that in homicide cases, photographs of the decedent which were taken while the decedent was still alive are typically inadmissible unless there is something about the decedent’s appearance which makes the photograph relevant. Without some specific connection between the allegations and a decedent’s appearance in a photograph, the introduction of such a photograph may be reversible error because the only purpose of such evidence is to engender sympathy in the jury and prejudice the jury against a homicide defendant. Thus, in most cases, simply showing photographs of a victim or decent is prohibited and could lead to reversal.

Here, the Superior Court recognized that this was a novel issue; no Pennsylvania court had previously addressed the issue of whether a now-adult complainant’s photos as a child could be introduced in a sexual assault case. The Superior Court ultimately concluded that the rule should be the same in these types of cases as it is in homicide cases. The evidence is admissible because it is simply not probative of whether a defendant committed the crimes charged. Therefore, the court agreed with the defendant that the trial court should have sustained the defense attorney’s objections.

What is harmless error?

Nonetheless, the Court did not reverse the defendant’s conviction because it found that the admission of the photographs amounted to harmless error. Harmless error is the idea that an erroneous ruling by a trial court on an evidentiary issue does not necessarily require the reversal of a conviction where 1) the error did not prejudice the defendant or the prejudice was de minimis; 2) the erroneously admitted evidence was merely cumulative of other unrelated evidence which was substantially similar to the erroneously admitted evidence, or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Here, the Court found that the prejudice was de minimis and that the error was harmless beyond a reasonable doubt. The Court concluded that the use of the photographs was brief and limited. Although they should not have been introduced, they did not contribute to the verdict. Therefore, the Court upheld the conviction.