Philadelphia Criminal Defense Blog

Zak Goldstein 6/17/21 Zak Goldstein 6/17/21

Third Circuit Court of Appeals: Partially Defective Jury Instructions Still Require Showing of Prejudice

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Baxter v. Superintendent Coal Township, holding that the failure of trial counsel to object to a partially defective jury instruction relating to reasonable doubt does not automatically require a new trial in cases where the evidence was overwhelming. The Third Circuit Court of Appeals found that although the instruction in question was at least partially defective, the defendant was still required to show prejudice, meaning that the result of the trial might have been different had the instruction been completely accurate. In this case, the Court concluded that the evidence was overwhelming, so the defendant will not receive a new trial due to the ineffective assistance of trial counsel.

The Facts of Baxter

In Baxter, the defendant was convicted of first degree murder, criminal conspiracy, and related charges. Numerous witnesses who personally knew the defendant testified against him at trial. All of his state court appeals and PCRA petitions were rejected, and he eventually filed a federal habeas petition. In the petition, he alleged that trial counsel was ineffective in failing to object to an example that the trial judge gave of the meaning of reasonable doubt.

Specifically, the judge gave the following example:

If you were advised by your loved one’s physician that that loved one had a life- threatening illness and that the only protocol was a surgery, very likely you would ask for a second opinion. You’d probably get a third opinion. You’d probably start researching the illness, what is the protocol, is surgery really the only answer. You’d probably, if you’re like me, call everybody you know in medicine: What do you know about this illness? What do you know about this surgery? Who does this surgery across the country? What is my option.
At some moment, however, you’re going to be called upon to make a decision: Do you allow your loved one to go forward? If you go forward, it’s because you have moved beyond all reasonable doubt.

Baxter’s attorney did not object to this instruction at the time, and the rest of the reasonable doubt instruction was correct. Courts have repeatedly held that this example is defective and does not accurately convey the meaning of reasonable doubt. People facing a life-threatening illness are in fact very likely to move forward with even a risky procedure that could save them from the illness.

Baxter was convicted, and he eventually challenged the instruction pursuant to 28 U.S.C. § 2254. § 2254 allows a defendant to challenge a state court conviction in federal court under certain circumstances. In this case, Baxter likely alleged that his original Post-Conviction Relief Act counsel was ineffective in raising the claim that trial counsel should have objected to this hypothetical. Where PCRA counsel has failed to raise a claim, federal courts have the ability to review the claim de novo under Martinez v. Ryan.

The Third Circuit’s Opinion

The Third Circuit accepted that trial counsel was ineffective in failing to object to the instruction. The hypothetical does not provide an accurate example of reasonable doubt, and so counsel should have objected and challenged the issue in the state courts. The Third Circuit, however, found that Baxter was not entitled to a new trial because in addition to showing that trial counsel should have done something differently, a petitioner who is seeking relief under the PCRA or in a federal habeas petition must also show that had counsel done something differently, it could have produced a different result. This is known as prejudice. In other words, the petitioner must show that the ineffective performance tainted the outcome of the trial.

Baxter argued that improper jury instructions create a structural error that requires no showing of prejudice. Under his argument, he would therefore automatically receive a new trial regardless of how strong the Commonwealth’s case was. Structural errors do require a new trial, and some examples include violating the right to a public trial, a complete deprivation of the right to counsel, lack of an impartial judge, an unlawful exclusion of grand jurors of the defendant’s race, and the denial of the right to proceed pro se.

The Third Circuit rejected this argument. It found that Baxter still had to show prejudice. Further, it concluded that because there were so many eyewitnesses who knew Baxter and claimed that he did the shooting, the strength of the case was overwhelming. The Court also reasoned that the rest of the instruction was correct and adequately conveyed the idea of reasonable doubt to the jury. Therefore, because the example likely did not impact the jury’s decision, Baxter could not show prejudice. He will therefore not receive a new trial.

Facing criminal charges? We can help.

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 6/16/21 Zak Goldstein 6/16/21

United States Supreme Court Limits Reach of Computer Fraud and Abuse Act

The United States Supreme Court has decided the case of Van Buren v. United States, holding that a person does not violate the Computer Fraud and Abuse Act (“CFAA”) by accessing information on a computer or network to which the person has lawful access even if they access the information for improper reasons. This is a huge win for everyday individuals because had this case been decided differently, potentially millions of people could have been subjected to criminal liability for violating their employers’ policies. As such, this decision acts as a check on the government from prosecuting behavior that is not inherently criminal.

Van Buren v. United States

The defendant, a former police sergeant, worked for a Georgia police department. The defendant and his fellow officers were warned about a certain individual in town. This individual was known to police as “very volatile” and officers were told to be careful when around him. Despite these warnings, the defendant formed a personal relationship with him. Eventually, the defendant asked the individual for a personal loan. Unbeknownst to the defendant, this individual recorded his conversation with him and then took it to the local sheriff’s office where he complained that the defendant tried to “shake him down for money.” Eventually, the FBI obtained this taped conversation.

The FBI then decided to run a sting operation on the defendant. They concocted a scheme where the defendant would run a license plate for the individual in exchange for $5,000. The defendant then used the state law enforcement computer database to search for this license plate. This would have violated his police department’s policy. After obtaining the FBI-created license-plate entry, the defendant then reached out to the individual. After he made this contact, the defendant was subsequently arrested and charged with a felony violation of the CFAA which subjects an individual to criminal liability to anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” The defendant proceeded by jury trial where he was found guilty of the aforementioned charge and sentenced to 18 months in prison. The defendant then filed a timely appeal with the Eleventh Circuit.

The Eleventh Circuit’s Decision

On appeal, he argued that the CFAA’s clause that states “exceeds authorized access” applies only to those who obtain information to which their computer access does not extend, not to those who misuse access that they already have. The Eleventh Circuit disagreed with the defendant’s argument. The Eleventh Circuit held that the defendant violated the CFAA by accessing the law enforcement database for an “inappropriate reason.” Undeterred, the defendant filed a petition for certiorari with the United States Supreme Court. The Supreme Court agreed to hear his case.

What is the CFAA?

The CFAA subjects individuals to criminal liability to anyone who “intentionally accesses a computer without authorization or exceeds authorized access” and then subsequently obtains information based on this improper access. The statute defines the term “exceeds authorized access” to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.” The CFAA applies to all information from all computers that connect to the Internet. In addition to criminal penalties, the statute also allows persons who suffered damages to sue the perpetrators for monetary relief.

The U.S. Supreme Court’s Decision

The United States Supreme Court held that the defendant did not violate the CFAA. In making its decision, the Supreme Court first reviewed the plain language of the statute. The Court focused on the clause “exceeds authorized access” because that was the most relevant text in the defendant’s case. The Supreme Court held that an individual “exceeds authorized access” when he accesses a computer with authorization, but then obtains information located in a particular area of a computer that is off-limits to him. In other words, an individual only violates the CFAA when he accesses information that he was not entitled to obtain. An individual does not violate the CFAA if he accesses information, that he is otherwise entitled to access, but does so in violation of a company policy. The Government had argued for a much more expansive view of the statue. However, the Court rejected this interpretation because it would have allowed the government to prosecute individuals when they violated workplace policies. Consequently, the defendant’s conviction is reversed and his sentence is vacated.

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

PA Superior Court: Probationer Must Be Advised of Rules of Probation at Time of Sentencing

Criminal Defense Lawyer.jpg — Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Koger, holding that a defendant must be advised of the rules and conditions of probation at the time of sentencing or else the defendant cannot be charged with a technical violation of probation for violating those rules.

The Superior Court specifically held that the sentencing court must actually specify the probation rules and include them in the sentencing order. It is not sufficient for a probation officer to simply explain the rules and conditions to the probationer at some point after the sentencing.

This opinion protects defendants from being found in technical violation for violations of conditions for about which they have not been informed. It further prevents probation officers from creating their own arbitrary conditions. It also gives defense counsel a better opportunity to challenge any rules or conditions of probation which may not be appropriate for the specific client.

In many counties, probation offices often attempt to impose restrictions which may be more punitive than necessary, and so now defense counsel may challenge those restrictions at the time of sentencing. Defense counsel may also challenge a potential violation of probation if the Commonwealth has no evidence that the defendant was advised of the rules at time time of the sentencing.

The Facts of Koger

The defendant was on probation in Washington County, PA for possession of child pornography. In 2019, he was charged with a second violation of his probation. The Commonwealth alleged that he violated Condition 7 (related to refraining from any assaultive, threatening, or harassing behavior), Condition 1 (failing to permit a probation officer to visit him at his residence and submit to a warrantless search of his belongings), and Condition 2 (relating to violations of criminal laws and ordinances).

The trial court held a revocation hearing and heard from the defendant’s probation officer. The probation officer testified that he searched the defendant’s phone and found that he had been communicating with a minor and receiving potentially pornographic images from that person via text messages. The officer testified that the defendant had received a copy of the rules of probation, and those rules prohibited that conduct. The officer testified that after he searched the phone, the defendant became agitated and was placed in custody. The defendant threatened another officer once at the jail. There was also a prior incident where the defendant was removed from a community service office for poor behavior. Based on this testimony, the trial court revoked the defendant’s probation and sentenced him to a lengthy period of incarceration.

The defendant appealed. On appeal, he argued that he had never actually been sentenced to follow any specific rules and conditions of probation. The evidence seemed to support this argument as the trial court informed the Superior Court that “it did not advise the defendant of the general conditions of his probation or parole at the time of sentencing.” Instead, pursuant to the court’s local procedures, the probation and parole conditions were explained to the defendant after sentencing by a probation officer.

The Superior Court’s Ruling

The Superior Court reversed the conviction. It found that there was no evidence that the defendant committed a technical violation of his probation because the court had never informed him of the requirements of probation at the time of sentencing. It is not sufficient for a defendant to be informed of the rules of probation by a probation officer after sentencing. Instead, a court must actually inform the defendant of the rules that he or she is required to follow while on probation at the time of sentencing, and those rules must be part of the sentencing order. This protects defendants by ensuring that they know exactly what they will have to do while on probation and cannot be found in violation arbitrarily, and it also gives the defense attorney an opportunity to challenge any unnecessary rules or conditions. As the court did not actually sentence the defendant to follow any specific rules, the defendant could not be found in violation for violating them. Accordingly, the Court reversed the judgment of sentence.

Facing Criminal Charges in Philadelphia? We can help.

Criminal Defense Attorneys.jpg — Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

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. We have also successfully handled many violation of probation hearings. 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 5/26/21 Zak Goldstein 5/26/21

PA Supreme Court: Rape Shield Law Bars Evidence of Complainant's Prostitution Conviction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rogers, holding that a defendant may not introduce evidence of a complainant’s prior conviction for prostitution to corroborate his testimony that he did not sexually assault the complainant, but rather merely engaged in paid sexual encounter. This decision addresses Pennsylvania’s Rape Shield Law, which is a powerful law that restricts a defendant’s ability to cross-examine complainants and introduce evidence to show that the challenged sex act may have been consensual. The law shields otherwise relevant evidence from the juries and often makes it difficult to defend against rape allegations even from those who have made false allegations before.

Commonwealth v. Rogers

The defendant physically and sexually assaulted five women over the course of a ten-month period in Philadelphia. The defendant was charged with dozens of crimes, including rape, robbery, and involuntary deviate sexual intercourse. The charges were consolidated for trial. In a pretrial motion in limine, the defendant sought permission to introduce evidence that two of his victims had a history of convictions for prostitution in the general area where the incidents occurred. The defendant wanted to use these convictions to show that his encounters, with these particular women, were consensual acts of prostitution.

In his filings, the defendant acknowledged that the existence of the Rape Shield Law (which generally prohibits the introduction of a complainant’s past sexual history), but argued that the Rape Shield Law did not prohibit the introduction of this evidence. The trial court denied the defendant’s motion because “none of the convictions related to encounters with [the defendant].” The defendant then elected to proceed with a waiver trial. The complainants testified in detail about their assaults and how he also stole personal property from them. The defendant also testified. He testified that he had sexual relations with all the victims, but that all of them were consensual. For two of the victims, he stated that these were sex-for-money transactions. At the conclusion of the trial, the trial court found him guilty of the aforementioned charges.

A sexually-violent predator hearing was subsequently held and the trial court determined that he qualified as such. At his sentencing hearing, the defendant was sentenced to a term of 55-170 years’ incarceration. The defendant then filed a post-sentence motion which was denied. The defendant then filed an appeal. On appeal, the defendant challenged his sentence, the weight of the evidence, and the denial of his motion in limine.

The Superior Court’s Decision

A three-judge panel of the Superior Court affirmed the defendant’s sentence. The Superior Court also denied the defendant’s appeal regarding his Rape Shield Law motion. Undeterred, the defendant filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s appeal. For purposes of this blog, only the issue concerning the defendant’s motion in limine will be addressed.

What is the Rape Shield Law?

The Rape Shield Law prohibits the introduction of an alleged victims “past sexual conduct, past sexual victimization, allegations of past sexual victimization, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct.” The purpose of the Rape Shield Law is to prevent a trial from shifting its focus from whether the defendant committed the crimes he is accused of “to the virtue and chastity of the victim.” Nonetheless, it cannot be applied in a manner that violates the defendant’s constitutional right to a fair trial, including his right to present evidence and cross-examine witnesses.

As such, courts have sought to balance the defendant’s right to a fair trial, including his right to confront his accuser, against the state’s interests embodied in the Rape Shield Law. Consequently, courts have found the Rape Shield Law unconstitutional as applied in circumstances where the defendant seeks to introduce evidence for reasons unrelated to impugning the complainant’s character and when the probative value of that evidence outweighs the danger of unfair prejudice. Each case is very fact specific and courts across the country have decided analogous issues differently. For example, an appellate court in Massachusetts has held that a defendant can introduce evidence of a complainant’s prior prostitution convictions in some cases. However, the last Pennsylvania case to address this issue held that the Rape Shield Law barred the introduction of this type of evidence.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court denied the defendant’s appeal. In its decision, the Supreme Court held that the Rape Shield Law typically only allows the introduction of a complainant’s prior sexual encounters to “demonstrate factual premises other than consent” i.e. that someone else committed the crime, the complainant was biased towards the defendant, or that the complainant had a motive to fabricate the charges. Consequently, the Pennsylvania Supreme Court found that “there is little doubt that the proofs offered by [the defendant] were statutorily precluded.” The Pennsylvania Supreme Court held that the evidence the defendant sought to introduce was the very type of evidence that the Rape Shield Law is designed to preclude. Finally, the Pennsylvania Supreme Court said that the lower court’s ruling did nothing to prohibit the defendant from establishing a consent defense. As such, the defendant will not get relief on this claim. However, he was successful on his other claim and his case was remanded back to the Superior Court to see if he is entitled to relief there.

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