Philadelphia Criminal Defense Blog

Zak Goldstein 12/5/23 Zak Goldstein 12/5/23

PA Supreme Court: Commonwealth's Suppression of Key Witness's Mental Health Records Requires New Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Conforti, affirming the PCRA court’s decision to vacate the defendant’s convictions for murder, rape, and related charges. The Court affirmed the reversal of the defendant’s death sentence because the defendant was able to show in PCRA proceedings that the Commonwealth hid psychological records for the witness which could have been used to impeach the witness at the time of trial.

The Facts of Conforti

In 1990, Kathleen Harbison and and her friend, Sue Fritz, were drinking at Cousins Restaurant and Bar in Wayne County, Pennsylvania. Harbison was seen in the company of the defendant, Michael Conforti, and James Bellman. Harbison left the bar to warm up her car in the early morning hours while Fritz said goodbye to friends. Fritz left the bar a few minutes later. She found Harbison’s car in the parking lot with the engine running, the driver door locked, the passenger door unlocked, the heater running, the radio on high volume, and Harbison’s purse on the back seat. Harbison was nowhere to be found. Before Fritz came outside, someone saw Bellman in his car, which was parked next to Harbison’s car.

A few days later, Harbison’s body was found in a secluded wooded area of Wayne County. Harbison had been stabbed twelve times, and four of the wounds were lethal. The cause of death was multiple stab wounds. There was evidence that Harbison had been bound by the wrists and ankles by handcuffs and that the acts were committed by more than one person.

The defendant and Bellman were arrested and charged with murder and other offenses related to Harbison’s death. Bellman gave a statement admitting to his involvement while the defendant offered no statement. The two were tried at the same time in the Wayne County Courthouse in two separate trials. Then-Wayne County District Attorney (and future judge) Wayne Hamill prosecuted Bellman, and then-Assistant District Attorney Mark Zimmer prosecuted the defendant. After testimony closed in Bellman’s trial but before closing arguments, Bellman, District Attorney Hamill, and Bellman’s lawyer had a meeting in a conference room in the back of the courtroom. After the meeting, Bellman informed District Attorney Hamill that he would testify for the Commonwealth in the defendant’s then ongoing trial.

Bellman testified that on the night of the murder, he and Harbison left the bar in Wayne County and went to the defendant’s house in Pike County. He claimed the defendant forced Harbison to engage in oral sex after telling Bellman to handcuff her. Harbison was then forced into Bellman’s car and driven to a secluded dirt road in Wayne County. Bellman claimed he and the defendant pulled her from the car and then the defendant repeatedly stabbed her with a knife the defendant brought from his trailer before they left.

Bellman continued, that after the killing, he and the defendant stopped at Ledgedale Bridge where the defendant threw the knife and handcuffs into the water. They then burned the blood-stained clothing and car mats from Bellman’s car in the defendant’s burn barrel and cleaned and vacuumed the defendant’s trailer and Bellman’s car. Bellman identified the recovered knife as the murder weapon.

Bellman claimed he decided to testify due to his sympathy for the victim’s family. He claimed that he did not have a plea agreement with the Commonwealth and would not receive anything for his testimony. The day after Bellman’s testimony, the prosecutor and defense attorney stipulated to the following:

The Commonwealth and Defense have stipulated that after Bellman had informed the District Attorney that he wished to testify at this trial -- that is to say the trial of [defendant] -- the District Attorney told him that if he did so and pled guilty to first degree murder in his own trial, the District Attorney would not seek the death penalty.
Mr. Hamill, the District Attorney, further told James Bellman that if he did not plead guilty, he would receive no consideration for his testimony against [defendant].
At the time Mr. Bellman testified in this trial here yesterday, he had not made up his mind which of these options he wished to take.
Since that time, he has pled guilty to first degree murder and he has been sentenced to life in prison.

The defendant took the stand in his own defense, contradicting Bellman’s testimony, and denying any involvement in the murder. The jury convicted the defendant of murder, and the court sentenced him to death. The trial court denied all post-sentence motions, and the Pennsylvania Supreme Court affirmed the defendant’s conviction and judgement of sentence on direct appeal.

The Defendant’s Post-Conviction Relief Act Petition

The defendant filed a timely pro se petition pursuant to the Post Conviction Relief Act (“PCRA”). The Office of the Attorney General represented the Commonwealth. Multiple hearings were held between October 2018 and November 2021.

Immediately before the PCRA hearing on November 5, 2021, the Commonwealth, represented by the Office of the Attorney General, provided the defendant’s counsel with two of Bellman’s mental health reports from 1980. The reports were created when Bellman was represented by Hamill while Hamill was in private practice. Hamill requested Bellman be evaluated by mental health experts. The reports, based on these evaluations, showed that Bellman was diagnosed as a sociopath by both evaluating doctors.

At the hearing on the petition, the parties entered a stipulation providing that the Office of the Attorney General was provided the file for Commonwealth v. Conforti which was maintained by the Wayne County District Attorney’s Office. The file had been in the possession of the Office of the Attorney General since that time. Counsel further stipulated that the mental health reports were contained in the Wayne County District Attorney’s file in a folder labeled “Misc. Police Reports,” and counsel for the Commonwealth from the Office of the Attorney General was unaware of its presence prior to its discovery and disclosure.

The PCRA judge granted the defendant’s petition, vacating his conviction and sentence on multiple grounds due to Constitutional violations for failing to disclose material exculpatory evidence that may have affected the outcome of the trial. The PCRA court based its decision in Brady v. Maryland, finding that the Commonwealth committed a Brady violation by failing to disclose the exculpatory mental health reports.

The PCRA Court Opinion

The PCRA court made a number of factual determinations in support of the grant of a new trial. First, it concluded that Bellman was negotiating with the Commonwealth for weeks prior to his testimony and that the negotiations were for Bellman to testify against the defendant in order to strengthen a weak, circumstantial case against the defendant. Accordingly, under Brady v. Maryland, this information should have been disclosed prior to trial because Brady requires that any material showing that a Commonwealth witness was looking for favorable treatment or otherwise was motivated to curry favor with the prosecution be disclosed.

Second, the PCRA court addressed the defendant’s claim that the failure to disclose the mental health records also constituted a Brady violation. The court determined that the Commonwealth had possession of Bellman’s mental health reports since 1980 and that the reports remained in the possession of the Commonwealth since that time. The court found that none of the evidence of Bellman’s mental health issues was disclosed to defense counsel prior to trial.

The court emphasized this determination by explaining, had this information been provided to defendant’s counsel prior to trial, defendant’s attorney could have called the authors to tell the jury what they determined to be Bellman’s mental health issues. The court highlighted excerpts of the report stating Bellman had no empathy for others, was selfish, narcissistic, and felt no guilt.

The PCRA court determined the information contained in the reports would have been devastating to Bellman’s credibility at trial. It highlighted the fact that Bellman was the Commonwealth’s key witness, the defendant maintained his innocence, and the rest of the evidence against the defendant was circumstantial.

The court relied heavily on the Third Circuit’s decision in Dennis v. Secretary, Pennsylvania Department of Corrections, which held that Brady material does not have to be evidence that would have resulted in an acquittal, but rather must only be evidence that would undermine confidence in the jury verdict.

The PCRA court further rejected the Commonwealth’s position claiming that counsel for the defendant could have obtained Bellman’s mental health information from sources other than the Commonwealth. The court found that Dennis held that a defendant is entitled to presume that prosecutors will disclose information they are required to disclose. The court ultimately found that Hamill knew about the reports and was obligated to turn them over to the defendant prior to trial. The court therefore granted the defendant a new trial. The Commonwealth appealed.

The Supreme Court’s Opinion

The Supreme Court affirmed. First, the Court addressed the mental health reports. It recognized that in Brady, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. The Supreme Court subsequently held that the duty to disclose such evidence is applicable even if there has been no request by the accused, and that the duty may encompass impeachment evidence as well as directly exculpatory evidence. Furthermore, the prosecution’s Brady obligation extends to exculpatory evidence in the files of police agencies of the same government bringing the prosecution.

A Brady violation occurs when:

1. The evidence is favorable to the accused, either because it is exculpatory or because it could be used for impeachment purposes;

2. the evidence was suppressed by the prosecution either willfully or inadvertently; and

3. prejudice ensued, meaning the disclosure of the evidence could have resulted in a different outcome.

First, the Court addressed the Commonwealth’s argument that the defendant waived any claim of a Brady violation by not raising the claim sooner. The Supreme Court agreed with the PCRA court, finding the defendant raised the Brady violation as soon as possible as the defendant did not have the psychiatric reports until they were disclosed in November of 2021. The defendant filed a PCRA petition within one year as required.

The Court continued its analysis by accepting the factual determination that the Commonwealth had the reports in its possession in 1980 and they were located in the case file, yet the Commonwealth failed to disclose them to defendant’s counsel.

The Commonwealth also argued that it did not have to disclose the reports because the reports were not material. The Commonwealth argued there was no reasonable probability that had the reports been disclosed, the result of the defendant’s trial would have been different. The Commonwealth claimed the reports would never have made it to the jury, and even if they had, they did not establish that the defendant did not participate in the murder.

The Commonwealth further argued the reports could not have been used to impeach Bellman’s credibility because only mental health disabilities that impair a witness’s ability to observe, recall, or report events are admissible to impeach credibility.

The defendant responded: “Bellman’s status as a sociopath, including his compulsion to blame others for his actions, his attempts to deceive evaluators, and his inability to feel guilt, made his testimony against defendant unreliable as it impacted his ‘ability to perceive events and to truthfully relate the facts to which he testified at trial.” The defendant further asserted the reports show Bellman to be a sophisticated actor capable of committing the crime on his own and that the reports would have been extremely damaging to Bellman’s testimony.

The Pennsylvania Supreme Court agreed with the defendant’s analysis, determining the reports could have been used to impeach Bellman due to his status as a sociopath. The Court explained his compulsion to blame others for his actions, attempts to deceive the evaluators, and his inability to feel guilt made his testimony unreliable. Ultimately the Court determined the reports qualified as impeachment evidence that was favorable to the defendant. They were therefore Brady material that the Commonwealth was required to turn over so defense counsel could present Bellman’s mental health issues to the jury and the jury could evaluate whether those issues impacted his credibility.

Finally, the Court addressed the prejudice component of the Brady violation. The Court agreed with the PCRA court’s determination that Bellman was the Commonwealth’s key witness. It noted that without Bellman’s testimony, the evidence against the defendant was purely circumstantial. Bellman’s testimony directly connected the defendant to the murder and even alleged that it was the defendant’s idea to murder the victim. The Court further pointed out that Bellman’s credibility was crucial to the case because the defendant testified in his own defense, directly contradicting Bellman. The reports regarding Bellman’s mental health status would have called his credibility into question. The Court determined that if those reports were properly disclosed, there is a reasonable probability the result of the trial would have been different.

The Takeaway

This case does not really change the law in Pennsylvania, but it shows that the courts often take Brady violations seriously. The prosecution has a duty to produce exculpatory evidence. If it does not, then the defendant may obtain a new trial, sometimes even decades later. The Philadelphia District Attorney’s Office currently has an open file policy for old homicide cases and will allow a defense attorney to review the prosecutor’s file as well as the detectives’ homicide file. In many cases, there may be exculpatory evidence which was never disclosed to the defense. If the evidence is compelling enough, it may be the basis for filing a new PCRA and getting back into court. This case is an example of that type of evidence.

Facing criminal charges or appealing a criminal case? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

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 won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 11/21/23 Zak Goldstein 11/21/23

PA Superior Court: Trial Court Cannot Make Probation Worse Without Violation or Threat to Public Safety

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Dell, vacating the new conditions of probation imposed on the defendant by the trial court and remanding for further proceedings. In Dell, the trial court made the defendant’s probation worse by adding more restrictive conditions despite the fact that the defendant had neither violated the probation nor done anything to show that he presented a threat to public safety.

The Facts of Dell

Dell was convicted of the sexual abuse of children (usually a child pornography related offense). He received a sentence of 5 - 10 years’ incarceration followed by state supervised probation. The trial court did not attach specific conditions to his probation. Once the probation began, the Parole Board therefore petitioned the trial court to add its standard conditions of probation, allow them to modify conditions going forward, and allow for the use of GPS monitoring when appropriate. The parole board did not allege any violation of the probation or that Dell posed a risk to public safety. The trial court granted the request anyway. The defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that court erred by entering an order modifying his probation to make it worse by including the three requested conditions without finding he violated a specific condition of his probation or presented a threat to public safety pursuant to 42 Pa.C.S. § 9771. The Superior Court agreed and vacated the order adding the new conditions.

After the thirty-day modification period provided by 42 Pa. C.S.A. § 5505 has passed, as there is no dispute it did here, a trial court may only modify a probationer’s terms of probation pursuant to Section 9771, which provides in relevant part:

(a) General Rule.-- The court has inherent power to at any time terminate continued supervision, lessen the conditions upon which an order of probation has been imposed or increase the conditions under which an order of probation has been imposed upon a finding that a person presents an identifiable threat to public safety.
(b) Revocation.-- The court may increase the conditions … of probation upon proof of the violation of specified conditions of the probation.

Thus, the judge may only make the probation worse within thirty days following sentencing as a Court may always reconsider during that period or if the defendant violates probation or poses a risk to public safety. The parole board did not allege that the defendant had done anything to violate his probation or that he posed some sort of new risk to public safety, so the Superior Court ruled that the trial court erred in making the probation more onerous. Accordingly, the court vacated the order adding new conditions.

The Takeaway

This is an important case - the statute clearly provides that trial judge’s cannot arbitrarily make the conditions of probation more difficult to meet, and here, the Superior Court enforced that rule. These types of issues come up a lot with probation because judges generally have so much discretion in how to handle probationers. But at the same time, probation is governed by a number of statutes, and errors made by probation or the trial court in adding conditions, selecting conditions, or proceeding on potential violations can provide a complete defense to an alleged violation of probation or the imposition of a probationary sentence at all. It is important to look carefully at the sentencing order when charged with a violation of probation and to object to any attempt by law enforcement to modify probation illegally to make it worse.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 11/17/23 Zak Goldstein 11/17/23

PA Superior Court: Commonwealth Must Provide Bill of Particulars and Give Alleged Mechanism of Death in Homicide Case

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McKnight, holding that the trial court did not abuse its discretion in granting the defendant’s motion for a bill of particulars identifying the mechanism by which the Commonwealth alleged the defendant killed the decedent in a homicide/poisoning case. This is an interesting case because requests for bills of particulars are fairly rare in modern litigation, and here, the trial court ordered the Commonwealth to essentially specify its theory of criminal liability for the defendant in advance of trial.

The Facts of McKnight

The Commonwealth filed a Bill of Information charging the defendant with first-degree murder and attempted murder. The Commonwealth alleged that the defendant caused the death of a three-month-old infant by poisoning the infant with fentanyl. The Commonwealth also alleged that the defendant attempted to murder a 16-month-old toddler with fentanyl. The Commonwealth also filed notice of its intent to seek the death penalty. The defense responded with a motion for a bill of particulars asking the Commonwealth to identify how the drugs in question were allegedly administered to the children. The defense argued that without knowing what the Commonwealth actually alleged the defendant did, they would be unable to effectively prepare for trial and to defend against the specific allegations.

The Commonwealth filed a response in which it refused to provide a bill of particulars. The Commonwealth argued that the request was an improper attempt to obtain the Commonwealth’s evidence and theory of the case in advance. The defense filed a motion asking the trial court to direct the Commonwealth to respond. The trial court granted the defense motion and ordered the Commonwealth to respond. It also ruled that should the Commonwealth fail to respond, the trial court could preclude the Commonwealth from seeking the death penalty at trial.

The Commonwealth filed a notice of appeal and certified that the order terminated or substantially handicapped its prosecution of the defendant pursuant to Rule 311(d) of the Pennsylvania Rules of Appellate Procedure. The Commonwealth argued on appeal that it should not have to provide the requested information to the defense in advance.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior court affirmed the trial court’s order. First, the Superior Court ruled that the appeal was properly filed even though it was an interlocutory appeal. In general, appeals may not be filed until a case is over. The Commonwealth, however, may file an interlocutory or pre-trial appeal where a trial court’s order would terminate or substantially handicap the prosecution. The Commonwealth must certify in good faith that the order would have that effect. Here, it was a little bit of a stretch that the order would really hurt the Commonwealth’s case, but the Superior Court allowed the appeal. It concluded that the trial court would potentially bar the Commonwealth from seeking the death penalty, and that remedy would have a substantial effect on the prosecution of the case.

Although the Superior Court allowed the appeal, it did rule that the trial court properly ordered the Commonwealth to respond. The Superior Court agreed with the trial court that the defendant’s request was an attempt to clarify the pleadings and prepare an adequate defense. It was therefore not an improper request, and the trial court did not abuse its discretion in ordering the Commonwealth to provide more information. The Court explained that the defense could differ significantly if the Commonwealth alleged a specific method of poisoning the children versus contending that she poisoned the children in a manner that could not be definitively determined. The Court also noted that the trial court had broad discretion to rule on a motion for a bill of particulars. The Court also ruled that the Commonwealth waived its challenge to the potential sanction of being barred from seeking the death penalty for failing to raise this claim in the trial court. Therefore, the Court accepted the appeal on the merits, but it affirmed the trial court’s ruling and directed the Commonwealth to provide more information as to how it believed that the defendant committed the homicide and attempted murder.

The Takeaway

The decision in Commonwealth v. McKnight shows the importance of pre-trial litigation and filing strategic pre-trial motions. The Commonwealth will now have to disclose how it believes the defendant committed the crimes charged, and it will not necessary be able to obtain a conviction if it ends up proving at trial that the crimes were committed in some other way. The defense will gain valuable information that will help it prepare for trial, and the defense is much less likely to be ambushed with some novel theory at the last minute. The prosecution often gets away with a lot of last minute changes and disclosures, and here, the ruling on this motion prevents them from doing that. It is critical in every case to think about how the filing of pre-trial motions may benefit the defendant at trial or help to even avoid a trial.

Facing criminal charges or appealing a criminal conviction?

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 11/3/23 Zak Goldstein 11/3/23

PA Superior Court: Sex with Unconscious Person Not Sufficient Evidence for Rape by Forcible Compulsion Conviction

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Banniger, holding that evidence that a defendant had intercourse with an unconscious person, without more, is insufficient to prove the “forcible compulsion” element in a rape or involuntary deviate sexual intercourse (“IDSI”) case where the prosecution has proceeded under the forcible compulsion subsection of either statute.

The Facts of Banniger

In Banniger, the complainant testified that when she was 15 years old, the adult defendant gave her marijuana, and she would smoke with the defendant while they were alone in the house. The defendant told her that he liked her and wanted to be with her. The victim told the defendant to stop. Shortly after that, the victim went to her room to lie down. She testified that on two occasions she was sexually assaulted by the defendant.

For the first incident, the complainant testified she awoke in her aunt’s room with her shorts pulled to the side, the defendant’s head between her legs, and with his tongue on and inside her vagina. She did not testify that she was frozen with fear, nor did she say how long the defendant continued or how the incident ended.

She testified that for the second incident, she woke up in her grandmother’s room. Her clothes were again pushed to the side and the defendant’s tongue was inside of her vagina. The defendant then pulled her pants off and inserted his penis into her vagina. The complainant, frozen in fear, just let it happen as she did not know what else to do. She then fought the defendant off because he was being forceful. The complainant ran into another room. She later told her older sister about the incident.

Following a non-jury trial, the judge found the defendant guilty of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, unlawful contact with a minor, statutory sexual assault, corruption of a minor, indecent assault of a person less than 13 years of age, involuntary deviate sexual intercourse of an unconscious person, and sexual assault. The trial court sentenced the defendant to an aggregate term of 14-34 years’ incarceration followed by three years’ reporting probation. The defendant filed a post-sentence motion. The court denied it, and the defendant appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the defendant challenged the sufficiency of the evidence supporting the rape and IDSI - forcible compulsion convictions, arguing that he did not use force because the complainant testified that she was asleep and woke up to the sexual assaults. Both statutes have different sections that apply to the sexual assault of an unconscious person, so the defendant argued that he should have been charged under those sections rather than with forcible compulsion.

The Superior Court agreed with the general idea that the rape of a person who is asleep does not amount to forcible compulsion but affirmed the convictions nonetheless. The court reasoned that in sexual cases, the object of the force is to compel a person to engage in sexual intercourse against that person’s will. They continued that “forcible compulsion” depends on a totality of circumstances, providing a non-exhaustive list of factors to consider including age of the victim and the defendant, mental and physical conditions of the complainant and the defendant, atmosphere and physical setting in which incident took place, and whether the complainant was under duress. Ultimately, the court recognized that each case turns on its own specific facts.

Force, however, does not necessarily require resistance from the complainant. Instead, the question is whether the defendant’s physical, intellectual, moral, emotional, or psychological force compelled the complainant to submit to intercourse against their will.

The court noted that while consent will negate finding forcible compulsion, forcible compulsion requires more than a mere lack of consent. Where lack of consent exists, but no showing of either physical force, a threat of physical force, or psychological coercion can be established, forcible compulsion does not exist.

Although an unconscious victim may not consent, not every person who has intercourse with an unconscious victim does so by forcible compulsion. Noting that while the factor involving a victim’s physical condition includes evaluating a lack of consciousness, that is only one circumstance to be considered under the totality test for forcible compulsion.

Accordingly, the court held that the mere act of intercourse with an unconscious person does not prove forcible compulsion. It may well violate other statutes, but it does not violate the specific statutes with which the defendant was charged.

The court, however, affirmed the conviction because it found that the complainant was not actually asleep for the entirety of both sexual assaults. With respect to the second incident, she testified that she woke up and was then frozen with fear as the abuse progressed. At first, she let it happen and did not resist because she was frozen with fear and did not know how to respond. She eventually fought the defendant off. Thus, under the totality of the circumstances, including the extended familial relationship, the use of marijuana, her initial unconsciousness, and her fear of the defendant’s response if she resisted, the Commonwealth proved forcible compulsion. The court therefore affirmed the conviction.

The Take away

Although things did not work out for this particular defendant, this is a pretty good opinion from the Superior Court in terms of analyzing the statute and reaching a logical conclusion. As the statute says, Rape or IDSI by forcible compulsion requires some level of actual force - psychological, physical, or otherwise, in order for the statute to apply. The elements are not met simply because penetration occurred without consent. Instead, that is essentially the definition of the somewhat less serious charge of sexual assault as a felony of the second degree. Therefore, sexual intercourse with someone who is totally unconscious or asleep is generally not going to be rape or IDSI by forcible compulsion. The problem for this defendant, however, is that the complainant testified that she was not totally asleep for the entirety of the incident and that she had other reasons for not resisting.

When fighting any case, it is important that the defense attorney be familiar with the elements of the statute. The attorney should never assume that the Commonwealth has charged the right statute or subsection of a statute. In many cases, the defense to criminal charges may be a legal one rather than a factual one, and a legal one that ends in an acquittal is just as good as a factual one that ends in an acquittal.