Philadelphia Criminal Defense Blog
PA Superior Court: Defendant Not Entitled to New Trial Where Jurors Made Racist Comments During Deliberations
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Rosenthal, holding that the defendant was not entitled to a new trial solely because members of the jury that convicted him made racist comments during deliberations. This decision is troubling given that jurors in criminal trials should be completely impartial.
Commonwealth v. Rosenthal
The defendant was arrested for allegedly misappropriating money from various nonprofit organizations with which he was involved. Prosecutors charged him with theft by unlawful taking, receiving stolen property, theft by deception, forgery, and misapplication of entrusted property and property of government or financial institutions. A jury found him guilty of all charges.
The trial court sentenced him to 21 years’ probation and ordered that he pay a substantial amount of restitution. The defendant later filed a timely post-sentence motion claiming that he should have received a hearing to determine whether he was entitled to a new trial based on a letter that he received from one of the jurors who expressed concerns about jury deliberations. In this letter, the juror stated that he voted to convict the defendant because he was “worn down” from the other members of the jury. Additionally, the juror stated that he heard ethnic “jokes” from his fellow jurors and that some of the jurors uttered stereotypes about Italian and Irish men.
The trial court denied the defendant’s post-sentence motion. He then filed a timely appeal. In his appeal, the defendant argued that he was entitled to a hearing on whether he should have been granted a new trial because some of the jurors made statements that showed racial and national origin animus. Because of this allegation of racial animus, he argued that the court should find an exception to the “No Impeachment Rule” of jurors and that the trial court erred in not having a hearing on the matter.
What is the No Impeachment Rule?
The “No Impeachment Rule” is found in Rule 606 of the Pennsylvania Rules of Evidence. The rule states that “during an inquiry into the validity of a verdict, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s vote or another juror’s vote; or any juror’s mental processes concerning the verdict.”
The purpose of the “No Impeachment Rule” is to prevent juror testimony regarding what transpired in the jury room because it “would destroy the security of all verdicts and go far toward weakening the efficacy of trial by jury.” However, there are exceptions to this prohibition. A juror is allowed to testify about prejudicial information that was improperly brought to the jury’s attention and whether there was an outside influence that was brought to bear on any juror.
The United States Supreme Court has also weighed in on the “No Impeachment Rule,” too. The Supreme Court has held that if there is evidence of racial animus that motivates a jury’s finding of guilt, the “No Impeachment Rule” may not be applicable. However, there are limitations to this exception, too. According to the Supreme Court, not every “offhand” comment qualifies. In order to overcome the “No Impeachment Rule” on the basis of racial animus, a defendant must show that one or more jurors made statements exhibiting overt racial bias. Further, there must also be a showing that the racial animus was a significant motivating factor in the juror’s vote to convict.
The Superior Court’s Decision
The Superior Court affirmed the defendant’s conviction. The Court highlighted several reasons as to why it agreed with the trial court’s decision not to have a hearing on whether the comments made by the jurors warranted a new trial for the defendant. First, the Superior Court highlighted the fact that there was no evidence that these “jokes” were directed at the defendant. Additionally, the Superior Court emphasized that the record did not indicate that the defendant, his attorney or any of the defendant’s witnesses were either Italian or Irish. As such, according to the Superior Court, there was no evidence to show that racial animus was a significant motivating factor in the juror’s vote to convict. Consequently, the defendant will not receive a new trial, and he will be forced to serve his sentence.
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, Rape, and 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 Superior Court: Trial Judge Improperly Usurped Role of Jury By Deciding Gradation of Witness Intimidation Charge
Philadelphia Criminal Lawyer Zak Goldstein
The Superior Court has decided the case of Commonwealth v. Raymond, holding that the trier of fact must make a specific finding of how the defendant “intimidated” a witness before the trial court can impose an enhanced felony gradation for the charge at sentencing. The Superior Court rejected the Commonwealth’s argument that the court could decide the gradation itself in the absence of a specific ruling from the jury.
Commonwealth v. Raymond
Philadelphia police charged the defendant with intimidation of a witness, retaliation against a witness, and possession of an instrument of a crime (“PIC”) based on his interactions with the complainant. Prior to the initiation of this case, the complainant had cooperated with law enforcement officials who charged the defendant’s friend with first degree murder. At the preliminary hearing for the murder case, the complainant testified that the defendant’s friend murdered the victim in that case.
The defendant and the complainant knew each other because they had lived in the same neighborhood for years. As the complainant had agreed to testify against the defendant’s friend at his murder trial, the complainant was placed in a witness protection program and relocated to another neighborhood approximately ten to fifteen minutes away. The complainant testified that he was concerned for his safety in his former neighborhood and no longer kept in contact with friends there because he had been labeled a snitch.
Shortly before the murder trial, the complainant was outside with his wife and his daughter at his residence when the defendant approached in his vehicle. After the defendant exited the vehicle and greeted the complainant’s family, the complainant’s wife and daughter went inside the residence. While the two men were alone, the defendant told the complainant that “I know where you was at. I would have done reach out and touched you, but I wanted to give you an opportunity to make shit right.” The complainant interpreted the defendant’s statement as an effort to convince him not to testify at the murder trial. The complainant then subsequently asked the defendant to leave. The defendant then said that “I’ve been up to the prison to see [defendant’s friend]. I know everything. And you got to make this shit right.”
The complainant then went inside his residence. He watched from his window as the defendant went back to his car, grabbed a black firearm, and tucked it under his shirt. The defendant then said “what are you gonna do?” while he placed his hand on his gun. After the complainant shut his door, he heard the defendant say “I know where you’re at.” The defendant then drove away.
After the defendant drove away, he called the complainant’s cell phone and stated “I shouldn’t have came. I don’t want you to feel threatened.” The defendant then stated that he did not want to be involved as the matter was between the complainant and his friend. As a result of this incident, the complainant relocated his family again to an unspecified address, which required his daughter to change schools. The complainant testified against the defendant’s friend, and that person was convicted of murder.
After the murder trial, the complainant testified about two incidents that occurred that made him feel he was being retaliated against for his testifying against defendant’s friend. First, he saw two men in a van parked outside of his home. One of the men was the defendant’s friend from his old neighborhood. Additionally, the complainant also found a dead bird on his doorstep. This was symbolic because the defendant’s nickname was tweet. The defendant, however, was in custody during both of these incidents.
The defendant went to trial with a jury. The above testimony was presented and he was convicted of all charges with the exception of PIC. It should be noted that there was not a specific finding by the jury as to how the defendant “intimidated” the complainant. This is important because intimidation has various subsections which trigger different gradations - it can range from a misdemeanor carrying only a few years in prison to a felony for which someone can get twenty years.
After his conviction, he filed a motion for extraordinary relief arguing that there was insufficient evidence to support either of his convictions. Regarding the witness intimidation charge, the defendant was originally charged under §4952(a)(1) which, as shown below, does not fit the facts that the Commonwealth alleged. The defendant also argued that there was no evidence to show that he made a specific threat or used violence to retaliate against the complainant for testifying at his friend’s preliminary hearing and thus there was insufficient evidence to convict him of that charge. The trial court agreed that there was insufficient evidence to convict him for the retaliation against a witness charge, however it denied the defendant’s motions on the intimidation of a witness charge. At his sentencing, the defendant was sentenced to six to twelve years’ incarceration. The defendant then filed a timely post-sentence motion which was denied. He then filed a timely appeal to the Pennsylvania Superior Court.
What is an Intimidation of a Witness Charge in Pennsylvania?
The charge of intimidation of a witness is governed by 18 Pa C.S.A. § 4952. The statute provides that a person can be guilty of intimidating a witness:
if with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent, or interfere with the administration of justice he intimidates or attempts to intimidate any witness or victim to” do any of the following:
Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime.
Give any false or misleading information or testimony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge.
Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge.
Give any false or misleading information or testimony or refrain from giving any testimony, information, document or thing, relating to the commission of a crime, to an attorney representing a criminal defendant.
Elude, evade or ignore any request to appear or legal process summoning him to appear to testify or supply evidence.
Absent himself from any proceeding or investigation to which he has been legally summoned.
The penalty for being found guilty of intimidating a witness can be very severe. 18 Pa C.S.A. § 4952 (b)(1) lists how the charge of witness intimidation may be graded:
The offense is a felony of the degree indicated in paragraphs (2) through (4) if:
The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person.
The actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.
The actor's conduct is in furtherance of a conspiracy to intimidate a witness or victim.
The actor accepts, agrees or solicits another to accept any pecuniary or other benefit to intimidate a witness or victim.
The actor has suffered any prior conviction for any violation of this section or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this section if committed in this State.
The offense is a felony of the first degree if a felony of the first degree or murder in the first or second degree was charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the second degree if a felony of the second degree is the most serious offense charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the third degree in any other case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
Otherwise the offense is a misdemeanor of the second degree.
The statute requires the Commonwealth to prove specific things in order to obtain an enhanced sentence. If the Commonwealth wants the witness intimidation charge to be graded as a felony of the first degree, it is not sufficient to show that the underlying case was also listed as felony of the first degree or a murder, but they must also show that the defendant “intimidated” the witness in one of the enumerated ways listed in 18 Pa C.S.A. § 4952 (b)(1)(i)-(iv). In the instant case, the defendant argued that because the jury did not specifically find which way the defendant “intimidated” the witness, he was entitled to the least severe grading which is a misdemeanor of the second degree.
The Superior Court’s Decision
The Superior Court agreed with the defendant that his conviction should have been graded as a misdemeanor of the second degree. The reason is because the jury did not make a specific finding as to how the defendant “intimidated” the complainant. Per 18 Pa C.S.A. § 4952 (b)(1), a criminal defendant can only receive an enhanced grading if the trier of fact finds that the defendant “intimidated” a witness through one of those enumerated points. Because the jury did not make a specific finding of how the defendant “intimidated” the complainant, his conviction could not be upgraded to the higher grading. Therefore, the trial court should have found that it was a misdemeanor and sentenced him to a maximum of two years’ incarceration.
Facing Criminal Charges? We Can Help.
Goldstein Mehta LLC Criminal Lawyers in Philadelphia
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, Rape, and 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 Superior Court: Acquittal on New Charges Voids Prior Probation Violation for Same Alleged Conduct
Philadelphia Criminal Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Giliam, holding that where a defendant has been found in violation of probation for a new arrest and is subsequently acquitted in that case, the violation of probation must be vacated as a result of the acquittal. This is a great case as it limits the ability of courts to find defendants in violation of probation for alleged criminal conduct of which they are ultimately acquitted.
The Facts of Gilliam
In Gilliam, the defendant pleaded guilty to terroristic threats and received a sentence of three years’ probation along with other conditions. Shortly after his sentencing, he was arrested and charged with aggravated assault, simple assault, and resisting arrest. The court lodged a probation detainer pending the outcome of the new case. A probation detainer holds a defendant in custody until the new charges are resolved unless the defense files a motion to lift the detainer and the court agrees to do so.
Before the new case could be resolved, the Commonwealth filed a motion to proceed with a probation violation hearing prior to trial. This procedure is called a “Daisy Kates” hearing as those were the names of the defendants in two appellate cases where the courts held that prosecutors could essentially conduct mini trials on the new charges at a probation hearing in order to convince the judge that a violation had occurred and the defendant should be sentenced for new criminal conduct.
Prosecutors like this procedure because violation of probation hearings are less formal, defendants have fewer protections than in a real trial, and the prosecutor must only convince a judge by a preponderance of the evidence instead of a jury beyond a reasonable doubt. These proceedings also may take place before the preliminary hearing, the exchange of discovery, and before the defense has had time to fully investigate the case. Accordingly, the odds are stacked against the defendant at a Daisy Kates hearing. Because Pennsylvania law allows judges almost unlimited discretion in imposing long sentences of incarceration following a probation violation, prosecutors can seek even longer sentences than they often would in the new case.
The Daisy Kates Hearing
The trial court agreed to hold the Daisy Kates hearing. At the hearing, one of the arresting officers and the defendant testified as to what happened. The court found the officer credible and that the defendant had lied. The court then found the defendant in violation of his probation and sentenced him to 2.5 – 5 years’ incarceration. This all took place despite the fact that the defendant was still presumed innocent on the new charges.
The Criminal Appeal to the Pennsylvania Superior Court
The defendant appealed the probation violation sentence to the Pennsylvania Superior Court. Appeals often move slowly, and while the appeal was pending, the defendant was found not guilty at his actual trial on the new charges. The defendant then argued to the Superior Court that the violation of probation sentence could not stand because he had been acquitted of the conduct for which the court found him in violation.
The Superior Court’s Ruling
The Superior Court agreed. The court noted that a defendant’s probation can be revoked in two circumstances: 1) the defendant violated a specific condition of his or probation (a technical violation), or 2) the defendant committed a new crime. A violation of probation does not occur simply when the probation court believes that probation is not working or that the defendant has engaged in antisocial conduct. Instead, there must actually be a new crime or a violation of a specific condition of probation.
Once a court finds a violation of probation, the court may only sentence a defendant to incarceration if: 1) the defendant has been convicted of a new crime, 2) the defendant’s conduct makes it likely that he or she will commit a new crime if not incarcerated, or 3) incarceration is essential to vindicate the authority of the court.
Here, the trial court found the defendant in violation of his probation solely because he had been arrested and charged with new crimes. He did not violate any other condition of his probation. Given that the new charges were the entire basis of the probation violation and that the defendant was subsequently acquitted of those charges, the probation violation could not stand. The court therefore found that the probation revocation sentence was void. The court further suggested that trial courts wait until after disputed criminal charges have been resolved before proceeding with probation violation hearings in order to avoid this perverse outcome of a defendant serving time for a probation violation which never actually happened.
Recent decisions such as this one have made it extremely difficult for the Commonwealth to proceed with probation violation hearings under the Daisy Kates doctrine. In a recent Pennsylvania Supreme Court case, the Court held that illegally seized evidence could no longer be used at such a hearing. Now, the courts have clarified that an acquittal will undo a prior violation of probation finding. Therefore, if you are facing a violation of probation due to an arrest on new charges, you should speak with one of our award-winning criminal lawyers about your options today.
Do you need a criminal lawyer in Philadelphia, PA? We can help.
Philadelphia Criminal Lawyers - Goldstein Mehta LLC
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, Rape, and 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 Superior Court: ARD Does Not Count as Prior Offense for DUI Sentencing
Philadelphia Criminal Lawyer Zak Goldstein
The Superior Court has decided the case of Commonwealth v. Chichkin, holding that a defendant’s prior acceptance of an accelerated rehabilitative disposition (“ARD”) does not qualify as a prior conviction for purposes of the DUI sentencing statute. This decision is a huge win for DUI defendants because many people will no longer be exposed to longer mandatory minimum sentences for a second DUI arrest if the prior arrest was resolved with the ARD program. It also fully recognizes that ARD does not count as a conviction or admission of guilt for any purposes.
Commonwealth v. Chichkin
The defendant was arrested and charged with Driving Under the Influence for an incident that occurred on December 8, 2017. His case proceeded to trial in the Philadelphia Municipal Court on May 18, 2018, at which time the court found him guilty of two counts of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1). The Municipal Court sentenced him to a term of 30 days to six months’ imprisonment, with two months’ concurrent probation. The 30-day mandatory minimum was imposed under 75 Pa.C.S. § 3804(b)(2)(i) because the defendant had accepted ARD for a prior DUI offense in 2013. If he had not had a prior ARD acceptance, then the mandatory minimum for his DUI sentence would have instead been 48 hours’ incarceration.
The defendant filed a timely motion for reconsideration seeking to “bar consideration of [his] prior ARD acceptance for sentencing purposes because the statutory framework violates several provisions of the United States and Pennsylvania Constitutions.” The court granted reconsideration and vacated the defendant’s sentence. However, following a hearing on the post-sentence motion, the Municipal Court denied reconsideration and reinstated the original sentence. The defendant filed a timely petition for writ of certiorari in the Court of Common Pleas. The trial court denied the writ but stayed the defendant’s sentence pending appeal. The defendant then filed a timely appeal to the Pennsylvania Superior Court.
Why Does it Matter if I Have a Prior Conviction for DUI?
The reason it matters is because if you have a prior DUI, then you will be subjected to an enhanced mandatory minimum if you are convicted of a subsequent DUI. 75 Pa.C.S. § 3804 lists the criminal penalties for a defendant after a conviction for DUI. These penalties can be quite harsh, especially considering that these are mandatory sentences and therefore the judge has no discretion in the imposition of the sentence.
For example, let’s assume a defendant is convicted of DUI while under the influence of controlled substances and this is his first DWI conviction. Because it is the defendant’s first conviction, the mandatory minimum for a first offense involving a controlled substance is three days’ incarceration. However, let’s assume that this defendant actually had a prior conviction for drunk driving and then is found guilty of DWI while under the influence of controlled substances. The mandatory minimum for this offense is now 90 days’ incarceration. This means that the defendant’s prior record can have a dramatic effect on his or her sentence.
Why Would ARD Count as a Prior Conviction?
Under the language of the statute, entry into the ARD program should count as a prior conviction. 75 Pa.C.S. § 3806 defines what constitutes a prior conviction for the DUI statute. According to 75 Pa.C.S. § 3804, if you previously accepted an ARD offer, the ARD counts as a prior conviction and thus you would be subjected to the enhanced penalties for second time offenders. In the instant case, the defendant was appealing this issue based on his argument that the statute was unconstitutional.
The Superior Court’s Decision
The Superior Court found that it was unconstitutional to count the defendant’s prior ARD as a prior conviction. In reaching its decision, the Pennsylvania Superior Court looked at previous appellate decisions. In its research, the Superior Court found that it was not unconstitutional to give a defendant an enhanced or mandatory sentence based on a prior conviction. However, the Superior Court found that it is unconstitutional to give a defendant an enhanced or mandatory sentence based on a fact that a defendant was not found guilty of beyond a reasonable doubt by a trier of fact (i.e. a jury or a judge).
This scenario used to be common in drug possession cases (for example, selling drugs within a certain distance of a school or based on the weight of a drug). Not too long ago, a defendant could receive an enhanced mandatory minimum sentence because the Commonwealth presented evidence that the defendant had a certain amount of drugs or was within a certain amount of feet near a school. However, Pennsylvania courts found that this was unconstitutional. They held that in order for a defendant to receive this enhanced or mandatory sentence, the trier of fact must specifically find that the defendant committed the conduct which increased the penalty in question beyond a reasonable doubt. It was not sufficient for the Commonwealth to merely present this fact during its case-in-chief or to the judge at sentencing. Instead, the trier of fact had specifically find that the defendant committed this fact beyond a reasonable doubt before a defendant could receive the enhanced sentence.
This resulted in many Pennsylvania mandatory minimum statutes being struck down because they allowed the judge to make findings on mandatory minimum issues at sentencing by a preponderance of the evidence standard instead of requiring that these things be found by a jury beyond a reasonable doubt.
Accordingly, the Superior Court analogized these prior decisions which struck down mandatory minimum sentences in Pennsylvania to the ARD statute, which allowed for a defendant to receive an increased sentence despite no finding of guilt by a jury beyond a reasonable doubt. Therefore, the question was whether a prior ARD qualified as a “fact” or a prior conviction.
After reviewing these prior decisions, the court found that admission into an ARD program could not be considered a prior conviction for any offense other than DUI’s. Further, when the Superior Court analyzed the procedure of accepting an ARD offer, it found that because a defendant does not have to admit his guilt and the Commonwealth is not required to prove the defendant’s culpability beyond a reasonable doubt, a defendant’s prior acceptance of ARD does not qualify as a “prior conviction.” As such, the Superior Court found that 75 Pa.C.S. § 3806 and § 3804 are unconstitutional. The defendant will be re-sentenced as a first-time offender.
Need a criminal lawyer in Philadelphia, PA? We can help.
Philadelphia Criminal Lawyers - Goldstein Mehta LLC
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, Rape, and 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.