Philadelphia Criminal Defense Blog

Zak Goldstein 5/24/21 Zak Goldstein 5/24/21

PA Superior Court: Defense Counsel Ineffective for Failing to Call Impeachment Witness in Rape Case

Criminal Defense Lawyer Zak Goldstein - Philadelphia, PA

The Pennsylvania Superior Court has decided the case of Commonwealth v. Orner, holding that trial counsel was ineffective for failing to call a witness in a rape case. The defense witness would have testified that the complainant admitted to the witness that she fabricated the claims against the defendant and that the sexual acts between them were consensual. This case really is not surprising given the crucial nature of this type of testimony, but it is a reminder that defense attorneys need to be diligent in investigating their cases and presenting witnesses that are helpful to their defense at trial.

Commonwealth v. Orner

The complainant was celebrating New Years with her boyfriend and their neighbor, the defendant. All three were drinking heavily at the complainant’s house. At approximately 9:00 PM, the complainant reported going to bed while the defendant and her boyfriend left the complainant’s residence to continue drinking at the VFW. The defendant was unable to enter the VFW and parted ways with the boyfriend.

The defendant then returned to the complainant’s residence. The defendant was subsequently questioned by the police where he denied any sexual contact had occurred between him and the complainant. He did eventually concede that he touched the complainant’s vagina when he was confronted with a search warrant for a DNA test. The defendant denied raping the complainant and would later testify that he and the complainant had been engaged in a flirtatious affair and had been “messing around” for about a year. Upon reaching the residence, the defendant claimed that he performed oral sex on the complainant for two minutes, but stopped when she asked him to and left. The defendant asserted that all sexual contact between him and the complainant was consensual.

At trial, the complainant denied that she and the defendant were engaged in a romantic affair. She testified that she had been awoken to the defendant performing oral sex on her. She also testified that the defendant penetrated her with his penis and that the defendant fled the scene after she woke up. After the defendant left, the complainant called her boyfriend, and then she called 911. Officers responded about ten minutes later, and her boyfriend was still present at the house. The boyfriend testified that he was in an insane rage after hearing the allegations, but he did concede that he had previously sent a text message claiming that the defendant and the complainant had been engaged in affair two years prior to the allegations.

The defendant was eventually arrested and charged with numerous crimes including rape, involuntary deviate sexual intercourse, sexual assault, and indecent assault. His first two trials ended in mistrials. During the third trial, defense counsel announced that he had failed to serve subpoenas on a married couple who would have been able to corroborate the defendant’s claims about his relationship with the complainant. A deputy sheriff was able to locate the husband, but the deputy could not locate the wife. The husband testified at trial and stated that the complainant had publicly expressed a desire to have sex with the defendant and had told his wife about her relationship with the defendant on the same day as he had supposedly raped the complainant. At the end of the trial, the defendant was found guilty of the aforementioned charges. The trial court sentenced the defendant to six to fourteen years’ incarceration. The defendant then filed a timely appeal. However, he withdrew his appeal.

The defendant filed a Post-Conviction Relief Act (“PCRA”) petition alleging that the trial counsel was ineffective for failing to call the wife to testify at his trial. The Court held an evidentiary hearing where both the trial attorney and the wife were called to testify. At this hearing, the wife testified that the defendant and the complainant had intended to rendezvous at the complainant’s residence while her boyfriend was drinking at the VFW. According to the wife, the defendant and the complainant were engaged in consensual sex, but they were interrupted when the boyfriend returned home. The defendant then fled the scene when the boyfriend arrived. The wife also testified that the complainant had given the defendant a key to her home and that she had confessed to her that she lied about the defendant raping her. Finally, the wife testified that had she been subpoenaed by the trial attorney she would have testified at the defendant’s trial.

The PCRA court granted the defendant’s petition and awarded him a new trial on the basis that trial counsel was ineffective for failing to call the wife at trial. Specifically, the PCRA court concluded that the wife’s testimony was “crucial because it would have greatly supported [the defendant’s] defense” that the complainant consented to the sexual acts in question that night and had a motive to fabricate the rape charges. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the PCRA court’s decision. The Superior Court noted that the Commonwealth’s case against the defendant depended entirely upon the credibility of the complainant. If the wife had testified at trial, her testimony would have directly undermined the complainant’s credibility. The Superior Court ruled that the wife’s testimony was “unquestionably beneficial” to the defendant’s trial defense. Consequently, trial counsel’s failure to subpoena the wife deprived the defendant of crucial support for his proffered defense. Therefore, the defendant’s conviction is vacated, and he will get a new trial.

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Zak Goldstein 5/8/21 Zak Goldstein 5/8/21

PA Superior Court: Nervousness and Fidgeting by Driver Do Not Justify Search of Car

Criminal Defense Lawyer.jpg — Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Mattis, holding that police cannot search a car during a routine traffic stop solely because the driver exhibited “extraordinary” nervousness and fidgeting. This case continues a recent trend of Pennsylvania appellate courts upholding the privacy rights of the Commonwealth’s citizens and seeking to rein in pretextual searches of people and automobiles, especially in marijuana cases.

The Facts of the Case

The defendant was charged with possession of marijuana, possession of drug paraphernalia, and speeding in Fayette County, Pennsylvania. He moved to suppress the evidence, alleging that police had stopped him illegally and searched his car without probable cause or reasonable suspicion. The trial court held a hearing on the motion to suppress. In order to defend the legality of the search, the Commonwealth relied on the affidavit of probable cause for the defendant’s arrest and called the arresting State Trooper to testify.

The affidavit of probable cause indicated that a Pennsylvania State Police Trooper pulled the defendant over for driving 76 mph in a 55 mph zone. The defendant pulled over on command, and the trooper approached the vehicle. He obtained the defendant’s license and paperwork, but he noticed that the defendant was “extraordinarily nervous and fidgeting constantly.” He asked the defendant to get out of the vehicle. The defendant did so, and the Trooper asked for permission to search the car. The defendant gave him permission to search the car. Another Trooper was on scene and assisted with the stop. Police found marijuana, a pipe, and a grinder in the car. Fayette County apparently still prosecutes people for marijuana offenses.

The Motion to Suppress

The defendant filed a motion to suppress. He argued that the Trooper did not have the reasonable suspicion necessary to prolong the stop beyond the initial purpose of investigating the speeding offense and that some nervousness and fidgeting did not justify any further investigation.

The Superior Court agreed. The Court recognized that police may stop a vehicle for a traffic infraction as the Trooper did here. However, once the purpose of the initial, valid, traffic stop has ended and a reasonable person would have believed he was free to leave, a second round of questioning with some official restriction on a person’s freedom of movement requires reasonable suspicion of some other crime for it to be justified. As a general rule, police may order the occupants of a vehicle to exit that vehicle for safety reasons during a legitimate traffic stop. But police may not extend the stop longer than necessary, and nervousness alone does not justify reasonable suspicion for an investigative detention or prolonging a stop.

Here, the Trooper testified that he made contact with the defendant and the defendant was nervous and fidgeting around in the vehicle. He confirmed that the defendant did not have any warrants and that he had valid paperwork for the car.

But without any additional reason, he then ordered the defendant to exit the vehicle. Most importantly, the Trooper retained possession of the defendant’s paperwork. The defendant was not free to leave because he obviously could not leave without his driver’s license. The Trooper, while still in possession of the documents, asked the defendant if he could search the car. The defendant granted permission.

The Court suppressed the resulting evidence because it found that the Trooper had improperly extended the stop. Although the Trooper had the right to ask the defendant to exit the vehicle as a general rule, he did so because of the defendant’s nervousness and not because of anything related to the speeding investigation. Because he held onto the paperwork, the defendant was not free to leave. Therefore, the Trooper did not have reasonable suspicion to extend the stop, and the Court ruled that the evidence should be suppressed because the consent given was not constitutionally valid.

The Superior Court vacated the conviction and remanded for a new trial without the illeglaly seized evidence. The Commonwealth will likely have to withdraw the charges.

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Zak Goldstein 5/6/21 Zak Goldstein 5/6/21

PA Superior Court: DUI With Child In Car Not Automatically Endangering Welfare of Child

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Vela-Garrett, holding that evidence that a defendant drove a vehicle with a child in the car while under the influence of alcohol or a controlled substance is insufficient to support a conviction for endangering the welfare of a child without some evidence of actual reckless driving. The mere act of driving under the influence will no longer support a conviction for this charge. Instead, the Commonwealth must show that the defendant was unable to safely drive. Typically, the Commonwealth would try to show this by introducing evidence that the defendant actually operated the car in an unsafe manner.

Commonwealth v. Vela-Garrett

A Pennsylvania State Police (“PSP”) Trooper was patrolling in a marked police cruiser when he observed a white BMW that did not have an inspection sticker on its windshield. The Trooper began following the vehicle and activated his lights. The vehicle pulled over and upon approaching the vehicle, the Trooper smelled a strong odor of marijuana. The defendant was driving the vehicle. The defendant’s girlfriend and their three-month-old baby were also in the vehicle. The Trooper proceeded to search the vehicle. He discovered a digital scale and an “empty twisted corner of a baggie” which, according to the Trooper, often contains some sort of controlled substance. A bag of marijuana was found in the girlfriend’s pants, and the defendant admitted it belonged to him.

The Trooper also performed field sobriety tests on the defendant. According to the Trooper, the field sobriety tests that were performed on the defendant could detect whether someone was under the influence of marijuana. The defendant later admitted to smoking marijuana. The defendant was then arrested. He also consented to a blood draw which showed that he had forty nanograms of the inactive metabolite of marijuana in his system. The defendant was subsequently charged with DUI (a)(1), DUI (d)(2), and EWOC.

The defendant elected to proceed by jury trial. He was acquitted of DUI (a)(1), but was convicted on the other two charges and then sentenced to 42 to 96 months’ incarceration. The defendant then filed a timely post-sentence motion which was denied. He filed a timely appeal. On appeal, the defendant raised two issues. Only the issue of whether the evidence was sufficient to sustain a conviction for the crime of EWOC will be addressed in this blog.

What is EWOC?

18 Pa.C.S. § 4304 (a)(1) governs the crime of EWOC as it relates to parents. It states:

“[a] parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” It is a specific intent offense which was enacted in broad terms to safeguard the welfare and security of children. To be convicted for EWOC, the Commonwealth must prove that a defendant’s actions amounted to a “knowing violation of a duty of care.”

The Superior Court has adopted a three-prong standard to determine whether the Commonwealth has met its burden to convict a defendant of EWOC. First, the Commonwealth must prove that the defendant is aware of his/her duty to protect the child. Next, the Commonwealth must show that the child is in circumstances that could threaten the child’s physical or psychological welfare. Finally, the Commonwealth must show that the defendant failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child’s welfare.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the defendant’s EWOC conviction. The Superior Court held that just because the defendant was impaired, he did not knowingly place his child in danger by driving with the child in the vehicle. The Superior Court highlighted the fact that the record omitted any allegations of unsafe driving by the defendant. Therefore, the evidence was not sufficient to support the EWOC conviction. Consequently, the defendant’s conviction for EWOC will be vacated and he will get a new sentencing hearing.

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Zak Goldstein 4/27/21 Zak Goldstein 4/27/21

Third Circuit Court of Appeals: Brady Violation Does Not Bar Re-Trial in Federal Court

The Third Circuit Court of Appeals has decided the case of United States v. Brown, holding that the Double Jeopardy Clause of the United States Constitution does not bar a subsequent prosecution when a prosecutor engages in prosecutorial misconduct by failing to provide exculpatory evidence prior to the first trial.

United States v. Brown

In 1995, firefighters responded to a fire at the defendant’s residence. At the time, the defendant was 17 years old, and he lived there with his mother and several family members. After arriving on scene, six firefighters entered the basement where the fire had originated. Several of the firefighters became trapped and died when a staircase collapsed. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) opened an investigation. Chemical samples from the basement confirmed the presence of gasoline and investigators located a gas can close to what an expert testified was the fire’s origin. ATF concluded that the fire was intentionally set and offered a $15,000 reward for information leading to arrest and conviction. The police suspected the defendant started the fire at his mother’s direction to collect on a renter’s insurance policy.

The defendant was subsequently charged with three counts of second-degree murder, two counts of arson, and one count of insurance fraud in state court. Local, state, and federal authorities formed a joint prosecution team which consisted of an Assistant District Attorney for Allegheny County and an Assistant U.S. Attorney. At trial, the defendant argued that he could not have set the fire because he had been shopping with his mother when the fire started. However, the prosecutors called witnesses who came forward with testimony undermining the defendant’s alibi. During the trial, the witnesses denied receiving payment and that they were promised payment in exchange for their testimony. The jury found the defendant guilty of the aforementioned charges and he was sentenced to three consecutive terms of life imprisonment for each murder conviction and a consecutive term of 7.5 to 15 years’ imprisonment for the arson conviction.

A few months after the trial, the defendant filed post-sentence motions arguing that he was entitled to an evidentiary hearing because the ATF agents had offered money to potential witnesses. The trial court denied this request. The defendant also filed various appeals with the Pennsylvania Superior Court. He was able to get one of his murder convictions vacated, but he was unsuccessful in obtaining relief for his other convictions. The defendant then filed a habeas petition claiming that the prosecution failed to disclose that it had paid witnesses to testify against him. At the hearing, the Commonwealth’s attorney said that he had reviewed ATF records and contacted the prosecutors and had not seen any record of witness payment. The habeas court denied the defendant’s petition and request for an evidentiary hearing.

Nearly a decade later, the defendant filed a petition in state court under the Post-Conviction Relief Act (“PCRA”) alleging that newly discovered evidence based on an expert opinion about the cause of the fire. Additionally, a non-profit organization filed a Freedom of Information Act (“FOIA”) request with the ATF seeking all recordings relating to the payment of reward money in the defendant’s case. The ATF provided two canceled checks showing that it had made payments of $5,000 and $10,000 relating to the fire. The non-profit then contacted one of the witnesses who said he had received $5,000 from an ATF agent after the defendant’s trial.

Armed with this information, the defendant filed a new PCRA petition alleging newly discovered facts in the form of a Brady violation. The PCRA court found that the defendant’s claim about the prosecution’s nondisclosure of the witnesses’ rewards satisfied the exceptions to the PCRA’s time-bar and granted the defendant a new trial. The Pennsylvania Superior Court affirmed this decision. Upon remand to the state trial court, the defendant moved to dismiss the charges on double-jeopardy grounds. While that motion was pending, a federal grand jury indicted the defendant, charging him with destruction of property by fire resulting in death. The Commonwealth then filed a motion to nolle pros the state charges. The state court granted the motion to dismiss the state charges.

The defendant then moved to dismiss the federal indictment on Double Jeopardy grounds. Specifically, the defendant argued that his state prosecution was “a tool of the federal authorities.” The Government argued that the dual-sovereignty principle applied. That rule allows the federal and state governments to charge a defendant for the same crime. After hearing arguments, the federal District Court denied the defendant’s motion to dismiss, holding that the dual-sovereignty principle allowed the defendant’s case to go forward in federal court. The defendant then filed a timely appeal.

The Third Circuit’s Decision

The Third Circuit denied the defendant’s appeal. The Double Jeopardy Clause says that no personal shall “be subject for the same offense to be twice put in jeopardy of life or limb.” However, the Double Jeopardy Clause’s prohibition against a second prosecution for the same offense is not absolute. There are exceptions to this rule. One, obviously, is the dual-sovereignty principle. Another exception is that a prosecutor can retry a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack. This is referred to as the “trial-error rule.” In the instant case, the Third Circuit said the dual-sovereignty principle was not applicable to the defendant’s case, but rather the trial-error rule.

The trial-error rule allows the prosecution to retry a defendant where the conviction is reversed due to trial error such as incorrect receipt or rejection of evidence or incorrect jury instructions. Paradoxically, the Third Circuit also categorizes prosecutorial misconduct as a “trial-error.” In other words, according to the Third Circuit, a prosecutor can commit some type of misconduct (i.e. withhold exculpatory evidence) and that will not necessarily bar them from retrying a defendant. However, there is an exception to this rule that if the prosecutor attempted to goad a defendant into asking for a mistrial because they feared an acquittal and the mistrial was granted, then Double Jeopardy could apply. According to the Third Circuit, “the Fifth Amendment does not permit such gamesmanship.”

The Third Circuit found that this exception did not apply in this case. Although the prosecution had failed to provide the defense with discovery, the prosecution had not done so with the intent to prove a mistrial. Therefore, the mistrial exception did not apply in this case. The government will therefore be able to try the defendant in federal court.