Philadelphia Criminal Defense Blog

Zak Goldstein 8/13/20 Zak Goldstein 8/13/20

PA Supreme Court: Commonwealth Bears Burden of Disproving Claim of Self-Defense in Gun Case

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Lineman, reaffirming its decision in Commonwealth v. Torres. The Supreme Court again held that if a criminal defendant properly raises the issue of self-defense, the Commonwealth has the burden of disproving that claim beyond a reasonable doubt. Further, it is not adequate for the fact-finder to merely disbelieve the defendant’s evidence of self-defense. The Commonwealth must produce actual evidence to counter a defendant’s self-defense claim. The Lineman decision is significant because it applies the logic of Torres to a possessory offense rather than just a crime of violence.

Commonwealth v. Lineman

A Philadelphia Police officer was on routine patrol when he received a radio call indicating that a male was screaming for assistance. The officer arrived on scene and observed the defendant and another male struggling on the ground. The defendant was lying on the ground with the other male on top of him. The officer ordered the male to get off the defendant. As the defendant began to stand he heard the sound of metal scraping the ground. The officer then looked at the defendant’s hand and saw that he was holding an Uzi. According to the officer, the defendant appeared to be under the influence of a controlled substance and was bleeding. The defendant was subsequently arrested for Violation of the Uniform Firearm Act § 6105 (“VUFA 6105”), Persons Prohibited from Possessing a Firearm.

The defendant elected to proceed by way of bench trial. At his trial, he testified in his own defense. Specifically, he testified that he and the other male had been drinking. Eventually, the other male became violent towards him and hit him in the face with the gun, which broke the defendant’s nose. The two then began to wrestle for the gun. The officer arrived while they were wrestling and this is what caused the fight to end. During closing arguments, defense counsel argued that the defendant was entitled to an acquittal because he raised the issue of self-defense and the Commonwealth did not present any evidence to rebut this claim as required by the case of Commonwealth v. Torres.

The trial court disagreed. The trial court stated that because this was a possessory offense, he could not raise a self-defense argument. The trial court did state that the defendant could raise a duress defense, but because he did not believe the defendant’s story it was not applicable to him. As such, he found the defendant guilty and sentenced him to three to seven years’ incarceration. The defendant then filed a timely appeal.

The Superior Court affirmed the trial court’s decision. In its decision, the Superior Court found that because the defendant was still in possession of the firearm after the police officer broke up the fight, this was sufficient to convict him of the charge of VUFA 6105. Undeterred, the defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the case.

Which side has to prove self-defense in Pennsylvania?

Commonwealth v. Torres is a Pennsylvania Supreme Court decision that was decided in 2001. The basic facts of the case were that the police arrived at a house in Philadelphia, PA after they received a radio call. When the police arrived on scene, they met with the complainant who said that the defendant had hit him in the head with a wrench. The defendant was about a half block away from the scene when the police arrived. While investigating the scene, the police were unable to locate a wrench. The defendant was then subsequently arrested and charged with simple assault.

The complainant never appeared to court. Nonetheless, the Commonwealth still elected to prosecute the case against the defendant by calling the police officers who arrived on scene. The officers testified that the complainant said the defendant hit him with a wrench. In response, the defendant testified on his own behalf and stated that he was acting in self-defense. At the conclusion of the trial, the trial court stated he disbelieved the defendant and found him guilty. The defendant then filed an appeal to the Pennsylvania Superior Court which affirmed his conviction. He then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which agreed to hear the case.

The Pennsylvania Supreme Court reversed the lower courts’ decisions and vacated the defendant’s conviction. The Court stated that when a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove that claim beyond a reasonable doubt. According to the Court, the Commonwealth must produce some evidence to dispute this claim. Further, the Court specifically stated that it is not sufficient for the trial court to not believe the defendant. Therefore, because there was no evidence on the record to contradict the defendant’s claim that he was acting in self-defense, the defendant’s conviction could not stand and thus was vacated. It is important to note that the defendant in Torres was not charged with a possessory offense (i.e. possessing a gun).

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court issued a slip opinion decision vacating the defendant’s conviction. In its opinion, the Pennsylvania Supreme Court specifically cited Commonwealth v. Torres as the reason why it was reversing the lower courts’ decisions. The Court did not provide any additional justification for its decision. Nonetheless, it is undisputed that the Court has now expanded Torres to include possessory offenses as well. As a matter of common sense, this decision makes sense. If someone is in danger and uses a weapon to protect themselves in self-defense, they should also be able to avoid a conviction for the possession of said weapon. Regardless of the logic of the decision, this decision is obviously favorable to the defendant because his conviction is now vacated, and he will be released from prison.

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Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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.

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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