Philadelphia Criminal Defense Blog

Zak Goldstein 4/12/23 Zak Goldstein 4/12/23

PA Superior Court: Trial Court May Grant New Trial in Criminal Case Sua Sponte

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Becher, recognizing that a trial court may grant a new trial to a defendant on its own even after a conviction. The Superior Court, however, reversed the grant of the new trial in this case because the error relied upon by the trial court in granting the new trial was not significant enough to justify such an extreme measure. This case is helpful for the defense in that it reaffirms the ability of the trial judge to grant a new trial when an egregious error has occurred, but it was not good for this defendant as this particular defendant had his grant of a new trial reversed.

The Facts of Commonwealth v. Becher

The defendant, three of his cousins, and a friend went to a strip club. There were members of a motorcycle club at the strip club who started an altercation with an intoxicated person and beat him up outside of the club. One of the defendant’s cousins taunted the club members for beating up an intoxicated person. The cousin and a club member started to fight but were quickly separated. Another cousin entered the club to grab the defendant. He was unaware of any altercations. At that time, the two remaining cousins reinitiated the fight. The defendant emerged from the club, observed the physical altercation, drew his gun, and struck one of the club members with it. The defendant then dropped the gun, and a melee ensued. During the struggle, the defendant was shot, recovered the gun himself, and shot two club members.

The Issue at Trial

At trial, three motorcycle club members testified that during the fight, the defendant’s cousin kept yelling that she was going to get her cousin and have him “smoke” them. After the Commonwealth had witnesses testify to this threat, the defendant's lawyer objected on hearsay grounds to the admission of the cousin’s threats. The trial court overruled the objection. The Commonwealth referred to the cousin's threats in closing arguments, and the trial court gave the jury a cautionary instruction. The trial court instructed the jury not to use the statements against the defendant as proof of his intent.

A jury found the defendant guilty of third-degree murder, finding he did not act in self-defense. The defendant’s lawyer filed a motion for a new trial alleging that the verdict was against the weight of the evidence. At sentencing, the trial court ruled that it would grant the defendant a new trial for a different reason. The trial court found that a new trial was necessary in the interests of justice because the testimony of the cousin’s threats was blatant and inadmissible hearsay. The trial court determined that it should have precluded the threats. Alternatively, if the statements were not hearsay, they were still unfairly prejudicial and should not have been admitted. Therefore, the trial court granted the defendant a new trial sua sponte.

The Appeal

The Commonwealth filed an appeal to the Pennsylvania Superior Court. On appeal, the Commonwealth argued that the trial court abused its discretion in sua sponte granting a new trial to the defendant because none of its reasons supported taking such an extreme measure.

The Superior Court agreed. The Court recognized that a trial court may grant a new trial sua sponte in the interests of justice. The ability to do so, however, is limited. Generally, a court may only do so when there has been some kind of egregious error in the proceedings. Additionally, the standard that must be met depends now whether a party to the proceedings has recognized and preserved the error. When a party recognizes an error but fails to preserve that error, there must be an exceedingly clear error of a constitutional or structural nature. The result must be a manifest injustice that amounts to severely depriving a party's liberty interest. Because the defendant’s attorney was aware of and objected to the threats at some point during the trial, the Superior Court reviewed the grant of a new trial under this higher standard. The lawyer had objected but not moved for a mistrial.

First, the Superior Court rejected the trial court’s conclusion that the threat was blatant, inadmissible hearsay. Instead, the threat had been admitted for a proper purpose. The threat was not used to prove the defendant’s state of mind but instead to tell the whole story of events. Further, a threat to do something is not necessarily a statement offered for the truth of the matter asserted. Instead, it is more of a present sense impression in that it is a statement about what someone intends to do. In this case, the witness intended to have the defendant commit the shooting.

The Superior Court also rejected the trial court’s conclusion that the statement was more prejudicial than probative. The Court found both that the statement was relevant, that it was not unfairly prejudicial, and that the trial court prevented any unfair prejudice by giving the jury a cautionary instruction that it should not hold the statement against the defendant. Therefore, the Court concluded that trial court erred in granting a new trial. The errors cited by the trial court were not actually errors, and even if they were, they were not big enough to justify a sua sponte grant of a new trial.

Therefore, the Superior Court concluded that the trial court abused its discretion in granting the defendant a new trial sua sponte. The Court reversed the trial court's order and remanded it to hear the motion for a new trial based on the weight of the evidence argument. The case obviously does not help this particular defendant, but it does reaffirm that where an error is egregious enough, a court retains the inherent authority to order a new trial in order to fix that error.

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Zak Goldstein 4/4/23 Zak Goldstein 4/4/23

Third Circuit: Pennsylvania State Court Rules on Use of Co-Defendant's Confession Against Defendant Violate Confrontation Clause

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The United States Court of Appeals for the Third Circuit has decided the case of Freeman v. Fayette, holding once again that Pennsylvania’s rules regarding the use of redacted statements by co-defendants against the defendant in a criminal case are unconstitutional. The Third Circuit’s decision is not technically binding on the state courts because the Third Circuit only addresses federal appeals. But because the Third Circuit eventually reviews many serious state decisions during federal habeas litigation, particularly in murder cases, the Third Circuit’s ruling could have a dramatic impact on Pennsylvania criminal procedure. In this case, the Third Circuit held once again that where a co-defendant gives a statement which implicates both the defendant and the co-defendant in the crime, redacting the co-defendant’s statement to remove the defendant’s name and replace it with “the other guy” or something similar doe snot adequately protect the defendant’s confrontation clause rights. In this case, the Court retired this point, but it did find that although the defendant’s rights had been violated, the violation amounted to harmless error because the evidence against the defendant was so strong.

The Facts of Freeman v. Fayette

The Commonwealth charged four men with robbery, kidnapping, and murder. One pleaded guilty before trial and agreed to testify against his co-conspirators. Three of the four co-defendants proceeded to trial. During the trial, the court heard testimony from various witnesses placing the four men together around the time of the crime. Finally, the Commonwealth used a statement by one of the remaining three co-defendants implicating the others. That defendant did not testify, and the statement was redacted but still referred to the other co-defendants as “the first guy" and "the second guy." The Commonwealth read the statement to the jury over the objections of the defense attorneys for those defendants. The judge instructed the jury that the statement was to be used only as evidence against the defendant who made the statement, not the co-defendants. The court also repeated this cautionary instruction at the end of the trial. A jury found all three men guilty of second-degree murder. The trial court sentenced them to the mandatory sentence of life without parole.

The Criminal Appeal

On appeal, the Pennsylvania Superior Court affirmed the defendant’s conviction, concluding that there was no Confrontation Clause or Bruton violation. After exhausting his appeals and post-conviction relief at the state level, the defendant filed a petition for a writ of habeas corpus in the federal district court. The district court concluded that the admission of the co-defendant's statement violated the defendant’s confrontation clause rights. The court also concluded that its admission was not harmless error, so the court granted the defendant’s writ of habeas corpus. The Commonwealth then appealed the decision to the Third Circuit Court of Appeals.

What is the Confrontation Clause, and what is a Bruton issue?

The Confrontation Clause, which is part of the Sixth Amendment, provides criminal defendants with the right to confront the witnesses against them. This means they have the right to cross-examine witnesses under oath at trial. In Bruton v. United States, prosecutors tried two defendants together for armed robbery. At trial, prosecutors used one of the defendant’s confessions against him, and the statement also implicated the co-defendant. The judge instructed the jury only to use the statement against the defendant, not the co-defendant. A jury convicted both men for the crimes charged. The Supreme Court ruled that the trial court violated the co-defendant’s right to confront and cross-examine despite the jury instruction because the trial court’s ruling essentially allowed the person who confessed to implicate the defendant without that person’s statement being subject to cross-examination.. Subsequent United States Supreme Court decisions have also held that redactions may not be sufficient unless they eliminate both the defendant's name and any reference to their existence. The state courts, however, have often allowed the Commonwealth to simply replace the defendant’s name with something generic like “the other guy.”

The Third Circuit’s Decision

Because the Commonwealth’s appeal challenged the district court’s ruling in habeas litigation, the Third Circuit was required to use a very deferential standard of review. Under the AEDPA, the mere fact that the state court was wrong is not enough to obtain relief. Instead, a court must first 1) determine whether there has been an error (in this case a Bruton violation), and then 2) determine whether the state court made a determination that was contrary to or an unreasonable application of clearly established federal law. A defendant must then also show prejudice. It is enough to show the trial judge was wrong; instead, the defendant must show that the trial judge was very, very wrong and that it likely affected the outcome of the proceedings.

Here, the Commonwealth argued that using "the first guy" and "the second guy" did not facially incriminate the defendant because these substitutes did not refer to him by name. The Commonwealth therefore argued that the statement did not facially incriminate the defendant and that any incrimination effect could come only inferentially. The Superior Court, however, has held that Bruton violates generally do not occur when a statement has been redacted and any incriminating effect arises inferentially.

The defendant argued that the redactions left it so obvious who the co-defendant was talking about that they offered insufficient protection, essentially making the statement directly accusatory. It named two perpetrators and left the two perpetrators unnamed, referring to them as "the first guy" and "the second guy." This made it so that the jury only needed to look up at the defense table and see the two co-defendants to identify who the statement implicated. Accordingly, the Third Circuit rejected the conclusions of the state courts that the statement did not violate Bruton. The Court had made similar rulings on numerous occasions, to the Court also found that the state courts clearly failed to apply federal law. Unfortunately, the Court also found that the evidence against the defendant was overwhelming and that he would have been convicted even without the statement, so the Court reversed the district court’s order granting the writ of habeas corpus. The defendant will therefore not receive a new trial despite the obvious violation.

Given the Third Circuit’s ruling, the case is not helpful for the individual defendant in this case. It is, however, very helpful for criminal defendants going forward as it once again sends a message to the state courts and Commonwealth that inadequate redactions do not render a co-defendant’s statement admissible against the defendant unless the defendant has a chance to cross-examine the co-defendant.

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Zak Goldstein 3/16/23 Zak Goldstein 3/16/23

PA Superior Court: Jail Time Required After Third Conviction for Driving on DUI Suspended License

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rollins, holding that a defendant must be sentenced to six months’ incarceration for a third conviction for driving on a DUI suspended license under 75 Pa.C.S. § 1543(b). The appellate courts had previously concluded that trial courts could not constitutionally sentence defendants to jail time for the first two convictions because the penalty sections of the statutes do not contain maximum possible sentences, making the statute unconstitutionally vague for the first two offenses. The third offense, however, is graded as a misdemeanor of the third degree, so a court may sentence a defendant to jail.

The Facts of Rollins

The defendant had his driver’s license suspended due to a DUI conviction. He was charged with driving on a DUI suspended license in violation of 75 Pa.C.S. § 1543(b) three times. He was convicted for the first two, but the case is not clear as to what sentence he received. In 2021, he was arrested and charged with the offense for a third time. He pleaded guilty, but he argued that he could not receive jail time because the statute was unconstitutionally vague. The trial court, however, sentenced him to six to twelve months’ incarceration. The statute provides:

(iii) A third or subsequent violation of this paragraph shall constitute a misdemeanor of the third degree and, upon conviction of this paragraph, a person shall be sentenced to pay a fine of $2,500 and to undergo imprisonment for not less than six months.

The statute itself does not specify the maximum penalty, so the defendant argued that he could not receive jail time. Two appellate cases arguably supported his position. Specifically, in Commonwealth v. Eid, the defendant was convicted of the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1.1)(i), which applied when an individual was found to be driving with a suspended or revoked license and refused a breath test. Section 1543(b)(1.1)(i) provided that an individual found in violation of this section “shall, upon first conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.” Eid was sentenced to a term of ninety days to six months’ imprisonment as well as a $1,000 fine.

On appeal, the Pennsylvania Supreme Court found that the statute was “unconstitutionally vague and inoperable” as the provision failed to provide a maximum term of incarceration. The Supreme Court affirmed Eid’s conviction and fine, but it vacated the imprisonment term as it declined to infer a maximum sentence, which would have forced the Court to “engage in sheer speculation as to which sentence the General Assembly intended.”

Shortly thereafter, in Commonwealth v. Jackson, the defendant pleaded guilty to the summary offense of DWS set forth at 75 Pa.C.S.A. § 1543(b)(1)(ii), which applied when an individual was found to have a second DWS violation. Section 1543(b)(1)(ii) provided “[a] second violation of this [crime] shall constitute a summary offense and, upon conviction [ ], a person shall be sentenced to pay a fine of $1,000[.00] and to undergo imprisonment for not less than 90 days.”

The Superior Court applied Eid and found that the section was unconstitutionally vague and inoperable because it contained identical language to that in Eid. The statute provided a mandatory minimum, but it provided no maximum, and the court could not guess as to what maximum the legislature intended. Therefore, the Jackson Court affirmed Jackson’s conviction and the imposition of the fine, but it vacated the house arrest portion of the sentence.

The Superior Court’s Decision

Here, the Superior Court affirmed the judgment of sentence and rejected the defendant’s argument. The Court found that the statute properly provides both a minimum and a maximum. It states that the minimum sentence shall be six months’ incarceration, and it also defines the statute as a third degree misdemeanor. The crime code provides that third degree misdemeanors may be punished by up to a year in jail, and so the absence of the specific maximum in the statute itself does not make the statute unconstitutionally vague because the offense is defined as a third degree misdemeanor. Therefore, the Court found that the section was not like the flawed sections in Eid and Jackson that apply to first and second offenses. Barring any successful additional appeals, the defendant will have to serve the six to twelve month jail sentence.

Facing criminal charges? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 3/10/23 Zak Goldstein 3/10/23

PA Superior Court: Bad Info From Third Party in Search Warrant Does Not Invalidate Warrant

The Pennsylvania Superior Court has decided the case of Commonwealth v. Adorno, holding that a search warrant is still valid even where the warrant contains incorrect information that has been provided by a third party. In this case, the Court found that the police relied on the information provided by a third party in good faith, so they had probable cause for the warrant. The fact that the information turned out to be wrong did not require suppression of the evidence that they later found.

Commonwealth v. Adorno

In this case, police officers discovered a Facebook Live video that showed a user named “Zay-Yaho” dancing while holding a gun and drugs. They identified the user as the defendant and determined that he had a criminal record which prohibited him from possessing a firearm. The officers learned that he lived at a certain address in Lackawanna County, Pennsylvania. They interviewed the landlord of the apartment building, and the landlord confirmed that the defendant lived there. The landlord also told them that the location in the video looked like the suspected address. The police then obtained a search warrant for that address. They executed the warrant, and they found three guns and prescription medication.

The Motion to Suppress

After finding the contraband, the police arrested the defendant. The defense filed a motion to suppress the evidence, and the trial court held a hearing on the motion to suppress. In the motion, the defense alleged that the police conducted a search without probable cause, that the search was based on incorrect information, and that the search exceeded the scope of the search warrant. Essentially, the defendant argued that the evidence should be suppressed because the video did not actually show the location that the police searched. At the hearing on the motion, the officers agreed that there were noticeable differences between the walls and layout of the home that they searched and the home in the Facebook video. Similarly, a friend of the defendant’s testified that the location in the video was her house, not the defendant’s apartment. She had not been aware of the video.

The trial court granted the motion to suppress, finding that police had searched the wrong location because the defendant’s apartment, which was the subject of the warrant, was not the location in the video. The Commonwealth appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the Commonwealth argued that the police properly relied on a validly issued search warrant and that the fact that the warrant turned out to contain incorrect information did not render it invalid. The Superior Court agreed. First, the Court found that there was a nexus between the crime and a home that would justify the search of a home because the video showed the gun in a home. Where a defendant commits a crime on the street, police may not have probable cause to search a come because the police cannot just assume a defendant will store evidence of the crime there. But where the crime is committed in a home, the case for searching a home is stronger.

Second, the Court found the warrant to be valid despite the factual error regarding the location depicted in the video. In order for a court to find a search warrant invalid due to a factual error, the defense must show that the police intentionally included false information or included false information with a reckless disregard for the truth. Here, the defense did not even allege that the police had acted in bad faith by either lying or including the information with a reckless disregard for the truth. Accordingly, the defense failed to meet its burden. This type of motion is often called a Franks motion. Here, the defense had argued only that the information was wrong, but showing that a warrant contains incorrect information is not enough to invalidate a warrant.

Therefore, the Superior Court reversed the order granting the motion to suppress. The defendant will have to face trial in the Court of Common Pleas.