Philadelphia Criminal Defense Blog

Zak Goldstein 8/2/20 Zak Goldstein 8/2/20

PA Superior Court: Commonwealth Cannot Introduce DUI Blood Test Results Without Witness Who Actually Drew Blood

Philadelphia Criminal Defense Lawyer Zak goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hajdarevic, holding that the Commonwealth may not introduce blood test results in a DUI case without calling as a witness the person who actually drew the defendant’s blood. In this case, the Commonwealth had tried to rely solely on an expert witness who had analyzed the results of the blood draw without ever presenting testimony to establish the chain of custody for the testing. The Superior Court rejected the Commonwealth’s position, finding that the evidence had been improperly admitted in violation of the defendant’s confrontation clause rights. This is an important case because it properly prevents the Commonwealth from taking short cuts to try to railroad defendants in DUI cases.

Commonwealth v. Hajdarevic

A Pennsylvania State Police (“PSP”) trooper was on duty in 2017. While driving his marked police car in Shippensburg, PA, the trooper noticed a passing vehicle fail to deactivate its high beams. The trooper subsequently initiated a traffic stop at approximately 12:23 AM. The defendant was the sole occupant of the vehicle. The defendant told the trooper that he was coming from a friend’s house where he had consumed several beers. While speaking to the defendant, the trooper noticed a “moderate odor of alcoholic beverage” and stated that the defendant had bloodshot and glossy eyes.

Shortly after this conversation, the trooper asked the defendant to exit the vehicle. The defendant was then asked to perform some field sobriety tests, but because the defendant had back problems, he only performed the Horizontal Gaze Nystagmus test. Presumably, the defendant failed this test, and he was subsequently placed under arrest. The defendant was then taken to Chambersburg Hospital for a blood draw. A technician drew the defendant’s blood at the hospital. They generated a report that showed that they took the defendant’s blood at 12:58 AM. The report showed that the defendant’s BAC was above the legal limit.

Prosecutors charged the defendant with DUI, and he elected to proceed by way of bench trial. The Commonwealth presented the above facts at trial. However, it should be noted that the actual technician who drew his blood did not testify at the defendant’s DUI trial. Further, the technician who testified at this trial did not actually witness the blood draw of the defendant. At the conclusion of the trial, the defendant was found guilty of DUI. The defendant was sentenced to 6 months’ intermediate punishment, which included incarceration for 48 hours and 30 days of electronic and alcoholic monitoring. The defendant then filed timely post-sentence motions, which the trial court also denied. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. For purposes of this blog, only the issue of whether his confrontation rights were violated when the Commonwealth did not call a witness who observed his blood being drawn will be addressed.

What is the Confrontation Clause?

The Sixth Amendment to the United States provides a criminal defendant with the right “to be confronted with the witnesses against him.” Specifically, the Supreme Court of the United States has held that the Confrontation Clause protects a criminal defendant’s right to confront witnesses bearing testimony against him or her. Article 1, Section 9 of the Pennsylvania Constitution also provides this right to criminal defendants.

The issue that has been heavily litigated throughout the years is what constitutes “testimony.” The United States Supreme Court has also ruled on this issue. And although there is not a clear definition of what testimonial means for purposes of the clause, courts have found that words can be “testimonial” if they are going to be used in a prosecution against a defendant. For example, if a complainant gives a statement to a detective about an alleged assault, that would be considered testimonial. However, if statements are introduced that were made during the course of an emergency, then they may not be testimonial. For example, 911 calls that deal with an ongoing emergency are often not considered testimonial and therefore may be admissible even without the live testimony of the person who made the call. For example, if someone were to call 9-1-1 to state that an individual was running down a street shooting at people, that statement could potentially be introduced at trial without the witness who uttered it because it had to do with an active emergency and therefore was not testimonial.

It should also be noted that the United States Supreme Court has specifically held that forensic analyses are usually testimonial, and thus a defendant has a right to cross-examine those who performed these analyses. In other words, it is not sufficient for a prosecutor to merely introduce a technician’s report or an expert report into evidence. Further, the United States Supreme Court has also held that prosecutors cannot call surrogate witnesses to testify at trial. In order to comply with a defendant’s right to confrontation, the prosecutor must call the actual technician who performed the test.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court held that the defendant’s confrontation rights were violated when the Commonwealth failed to call any witnesses who actually observed the defendant’s blood draw. The Superior Court first had to determine whether the time of the defendant’s blood draw was a “testimonial factual statement.” The Superior Court held that it was because “[t]he plain language of the [DUI statute] here reveals that the time of the blood draw is an element that must be proven by the Commonwealth beyond a reasonable doubt. In the instant case, the time of the defendant’s blood draw was only introduced into evidence by the technician who testified at his trial. As such, because the Commonwealth failed to call the technician who actually drew the defendant’s blood (or anyone else who witnessed it), his right to confrontation was violated. Therefore, because of this violation, the defendant’s conviction was vacated, and he will receive a new trial.

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Zak Goldstein 7/21/20 Zak Goldstein 7/21/20

PA Supreme Court: Preliminary Hearing Requires More Than Just Hearsay

The Pennsylvania Supreme Court has finally decided the case of Commonwealth v. McClelland, reversing the decisions of the Superior Court in Commonwealth v. Ricker and McClelland. The Court held that although some hearsay may be admissible at a preliminary hearing, the Commonwealth may not meet its burden of proving a prima facie case through hearsay alone. Prior to this decision, most Philadelphia judges required at least some real evidence at a preliminary hearing, but many magistrates throughout the rest of the state did not. This case restores the importance of the preliminary hearing, requires the Commonwealth to produce real evidence at the hearing, and protects the rights of the accused to confront the witnesses against them early in the criminal justice process rather than being forced to wait months or even years for trial.

Commonwealth v. McClelland

In this case, the defendant was charged with committing indecent assault, indecent exposure, and corruption of minors against an eight-year-old child. Specifically, the complaint alleged that on August 3, 2015, the child’s parents reported to the Pennsylvania State Police (“PSP”) that the child told them the defendant touched her face with his penis several months earlier. The child then later provided additional details about the incident during an interview with a Children’s Advocacy Center specialist, which led to the criminal charges against the defendant.

At the preliminary hearing, the Commonwealth did not call any actual witnesses with personal knowledge of anything. Instead, the prosecution called a Pennsylvania State Police trooper to testify. The trooper had not witnessed the assault and had only witnessed the interview of the complainant. The trooper summarized the contents of the complainant’s interview for the magistrate, and the magistrate held the case for court, meaning the defendant would have had to stand trial without any real evidence being presented at a preliminary hearing.

After the preliminary hearing, the defendant filed a petition seeking a writ of habeas corpus. The defendant argued that allowing the case to proceed to trial based solely on hearsay evidence violated his rights to confrontation and due process under the Pennsylvania and United States Constitutions. The trial court denied the motion, and the defendant filed an interlocutory appeal to the Superior Court. The Superior Court affirmed the lower court’s decision denying the defendant’s writ of habeas corpus. In Commonwealth v. Ricker, a panel of the Superior Court had held that the right to confrontation does not apply at a preliminary hearing and a defendant could be held for court based solely on hearsay. In this case, the Superior Court held that due process does not require the Commonwealth to produce any non-hearsay testimony at a preliminary hearing.

Undeterred, the defendant then filed a petition for writ of allowance to the Pennsylvania Supreme Court. The defendant argued that allowing the Commonwealth to only present hearsay evidence at a preliminary hearing violated his due process rights. Specifically, the defendant argued that the Pennsylvania Supreme Court’s decision in a much older case called Commonwealth v. Verbonitz governed this issue, that the Superior Court could not overrule a decision of the Supreme Court, and that the Commonwealth could not meet its burden at a preliminary hearing on hearsay evidence alone without violating due process rights.

The Commonwealth’s Response

On appeal, the Commonwealth argued that the Pennsylvania Supreme Court should adopt the holding of Commonwealth v. Ricker which allowed the Commonwealth to meet its burden at the preliminary hearing on hearsay only. The logic of Ricker is that Rule 542(E) of the Pennsylvania Rules of Criminal Procedure, which was amended in 2013, permitted the Commonwealth to meet its burden on hearsay evidence only because it states “[h]earsay evidence shall be sufficient to establish any element of an offense, including, not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.”

Additionally, it was the Commonwealth’s position that proceeding by hearsay alone does not violate a defendant’s due process rights because preliminary hearings are not constitutionally required. Finally, although the Pennsylvania Supreme Court addressed this issue in Commonwealth v. Verbonitz, it was the Commonwealth’s position that the decision was a plurality decision in which no majority of judges actually found that hearsay could not be used at a preliminary hearing. As a plurality decision, Verbonitz was arguably not a binding decision, and therefore the Commonwealth argued that the Pennsylvania Supreme Court could depart from it.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court rejected the Commonwealth’s arguments and held that the Commonwealth cannot meet its burden at a preliminary hearing using hearsay evidence alone. As a preliminary matter, the Pennsylvania Supreme Court dismissed the argument that Rule 542(E) permits the Commonwealth to use hearsay to satisfy all the elements of the alleged crimes at a preliminary hearing. The Court specifically held that although Rule 542 is “not the model of clarity,” it does not permit the Commonwealth to establish its entire case at a defendant’s preliminary hearing. Additionally, the Pennsylvania Supreme Court reviewed Verbanowitz and recognized: “[w]e have little difficult in stating with certainty that five justices [a majority]…agreed a prima facie case cannot be established by hearsay alone.”

Further, the Court found that the primary purpose of a preliminary hearing is to protect an individual’s right against unlawful arrest and detention. The preliminary hearing is a “critical hearing” and not a mere formality. As such, due process requires that the Commonwealth present more than just hearsay evidence at the preliminary hearing. Therefore, the case against the defendant was dismissed as the Commonwealth had presented nothing more than hearsay. The Court also disapproved of Ricker, meaning that defendants will likely have substantially increased rights to confront witnesses and challenge the evidence against them at preliminary hearings throughout Pennsylvania.

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Zak Goldstein 7/14/20 Zak Goldstein 7/14/20

PA Superior Court: Acquittal on Underlying Reckless Endangerment Charge Does Not Prevent Conviction for Drug Delivery Resulting in Death

Philadelphia Criminal Defense Attorney Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Burton, holding that a defendant may be convicted of Drug Delivery Resulting in Death (“DRDD”) despite being acquitted on the charge of Recklessly Endangering Another Person (“REAP”) in the same trial. This decision is not surprising given that it has long been the rule that with few exceptions, inconsistent verdicts do not usually warrant a new trial. As many criminal defense attorneys can tell you, inexplicable verdicts are not uncommon in jury trials. Because the judge cannot question the jury regarding its motivation, the reasons for these verdicts are usually unknown. Sometimes they are reached out of leniency, while it is also possible that the jury just may not understand the law. Here, the defendant’s acquittal on the REAP charge did not require an acquittal on the related drug delivery resulting in death charge.

Commonwealth v. Burton

On January 29, 2016, police officers responded to a call for an unresponsive person in Pottstown, Pennsylvania. Unfortunately, the officers were too late. When they arrived, the unresponsive person unfortunately had died. The officers found a syringe on the floor near her body. They also found three blue wax bags from the scene which contained fentanyl. The officers also recovered the decedent’s cell phone and prescription pill bottles.

Between 7:00 p.m. and midnight on January 28, 2016, the decedent exchanged text messages with an individual named “Rachel” in her phone. It was later determined that “Rachel” was the defendant. According to a detective who reviewed the text messages and testified at the defendant’s trial, the conversation between the defendant and the decedent was indicative of arranging a drug transaction. The police also recovered surveillance footage that showed the defendant walking near the decedent’s building while talking on his phone. The video footage also showed the defendant entering and leaving the decedent’s house.

On June 22, 2016, the defendant was arrested and charged with DRDD, REAP, criminal use of a communication facility, and possession with the intent to deliver a controlled substance (“PWID”). The defendant filed a motion to suppress the subscriber information relating to his cell phone which was denied by the trial court. Following a two-day trial, a jury found the defendant guilty of DDRD, criminal use of a criminal facility, and PWID. Notably, the jury acquitted the defendant on the REAP charge. On October 31, 2018, the trial court sentenced the defendant to an aggregate term of 13 to 35 years in a state correctional institution. The defendant then filed a timely appeal. On appeal, the defendant argued that he could not have been convicted of DDRD because he was acquitted on the charge of REAP.

What is Drug Delivery Resulting in Death in PA?

The crime of DDRD is governed by 18 Pa. C.S.A. § 2506. The statute provides:

A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64),1known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

The crime of DRDD is unique because unlike most crimes, it has two separate mental states that the Commonwealth must prove beyond a reasonable doubt to convict the defendant. First, the defendant must have intentionally sold the contraband. Next, the death of the decedent must be the reckless result of the actions of the defendant. Further, the penalty for DRDD can be quite severe. If a defendant is convicted of DDRD, they can face a maximum sentence of forty years. Although DRDD is not usually charged in Philadelphia state court, it is a very common charge in the surrounding counties (i.e. Bucks County) and is particularly serious when charged in federal court. Therefore, if you are charged with DDRD it is imperative that you have a highly skilled attorney representing you.

The Superior Court’s Decision

The Superior Court rejected the defendant’s argument that he could not be convicted of DRDD because he was acquitted on the charge of REAP. Unfortunately, these confusing and inconsistent jury verdicts are fairly common, and appellate courts are extremely reluctant to apply an acquittal on one charge to prevent a conviction on another except under extremely limited circumstances. Here, the Superior Court expressly rejected the argument that REAP is a lesser included offense of DDRD. The Superior Court found that the recklessness mental state is satisfied by the delivery of a drug whose dangers are widely known. Fentanyl is widely known to be extremely dangerous and frequently results in overdoses. Therefore, the defendant’s conviction for DRDD will stand, and he will be forced to serve his sentence.

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Zak Goldstein 6/30/20 Zak Goldstein 6/30/20

PA Supreme Court Finds Use of Medical Marijuana Not a Probation Violation

The Pennsylvania Supreme Court has decided the case of Gas v. 52nd Judicial District, Lebanon County, holding that judges and probation officers in Pennsylvania cannot issue blanket orders prohibiting probationers from using lawfully obtained medical marijuana. This is decision is a huge win for probationers because more and more people are being prescribed medical marijuana to treat their underlying physical and mental health conditions. There is a wide body of research that shows that medical marijuana can be very therapeutic. However, many conservative counties had moved to prohibit probationers from using marijuana even when the treatment has been provided by a doctor. This decision will allow probationers to receive the treatment that they need without fear from retribution by their probation officers or back judges.

Gass v. 52nd Judicial District, Lebanon County

In 2016, the Pennsylvania General Assembly enacted the Medical Marijuana Act. In a declaration of policy, it recognized that scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance their quality of life. The Medical Marijuana Act specifically stated that possession of medical marijuana is legal in Pennsylvania. It also stated that a person cannot be subjected to arrest, prosecution, or penalty in any manner on the basis of medical marijuana.

Three years after the passage of the Medical Marijuana Act, the 52nd Judicial District (Lebanon County) announced its “Medical Marijuana Policy” which prohibits the active use of medical marijuana while a defendant is under supervision by the Lebanon County Probation Services Department. In the instant case, the defendant was a probationer who was being supervised by Lebanon County’s probation department. She claimed that she suffered from a serious and debilitating medical condition. The defendant attempted other therapies, but they were not successful in treating her underlying condition. She then secured lawful authorization to use medical marijuana. However, because of Lebanon County’s Policy, she was not allowed to use it. The defendant subsequently filed a petition in the Commonwealth Court to challenge the validity of Lebanon County’s Policy.

The Commonwealth Court found that it lacked jurisdiction to hear the case, so it transferred jurisdiction to the Pennsylvania Supreme Court. In response to the defendant’s petition, the 52nd Judicial District argued that the General Assembly did not intend for the Marijuana Medical Act to override the court’s ability to supervise probationers and parolees. Further, the 52nd Judicial District argued that its probation services office has experienced disruptions and persistent difficulties when supervising probationers and parolees using medical marijuana. Finally, the 52nd Judicial District argued that it should prevail because its probationers must comply with all state and federal criminal laws and that probationers must refrain from using alcohol or “any legal or illegal mind/mood altering chemical/substance.”

Can you use medical marijuana while on probation in PA?

The Pennsylvania Supreme Court found that Lebanon County’s Policy violated the Medical Marijuana Act and held that Lebanon County probationers are allowed to use medical marijuana so long as it was lawfully obtained. In making its decision, the Pennsylvania Supreme Court reviewed the language of the Act. The Court found that although people with criminal records may be prohibited from delivering medical marijuana to patients, they can still qualify as patients under the Medical Marijuana Act. Further, the Legislature specifically prohibits individuals who are in custody at a correctional institution to be permitted to use medical marijuana.

This is significant because the Medical Marijuana Act omits any reference to individuals on supervision (i.e. probation). Therefore, the Legislature could have specifically prohibited probationers from using medical marijuana, but it chose not to. Additionally, the fact that they specifically addressed individuals in custody shows that the Legislature considered individuals involved in the criminal justice system and chose not to exclude probationers from using medical marijuana. Therefore, the policy violates the act, as did a revised policy which put the burden on the probationer to prove in a court hearing that the marijuana was medically necessary despite a doctor having already so determined. Because its policy violates the Medical Marijuana Act, Lebanon County can no longer enforce its policy and the defendant will be permitted to use medical marijuana while on supervision.

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