Philadelphia Criminal Defense Blog

Zak Goldstein 1/23/24 Zak Goldstein 1/23/24

Can prosecution witnesses testify by video? Sometimes.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In most cases, witnesses in criminal cases may not testify by video. This is particularly true for the prosecution as the defendant has a confrontation clause right to confront their accusers, and the appellate courts have held that that right includes the right to cross-examine witnesses face-to-face in the courtroom. The legislature, however, has provided that under certain circumstances, child witnesses may testify by video from somewhere else in the courthouse in a different room from the defendant. In the recent case of Commonwealth v. Lamont, the Superior Court upheld the defendant’s convictions for sexual assault charges and held that the trial court properly allowed the child complainant to testify contemporaneously via video.

The Facts of Lamont

In 2019, the complainant told her grandmother that the defendant, her grandmother’s boyfriend, had molested her. The complainant lived near the grandmother’s house, and the defendant would sometimes babysit the complainant while the complainant’s mother was at work. The grandmother confronted the defendant. He admitted to touching the complainant but claimed it was an accident. He promised to apologize. (This is a good example of why it is best to just remain silent when confronted with criminal allegations. Claiming that touching someone inappropriately was an accident is generally not going to help your case.)

After the defendant apologized to the complainant, the complainant told the grandmother the defendant had in fact molested her several times rather than just once. Again, the grandmother confronted the defendant. This time the defendant just stood there. The grandmother left for work, and the defendant left the home with all his belongings. The grandmother then contacted the police.

The defendant called the grandmother and begged her not to press charges. He apologized, threatened to commit suicide, and claimed he did not know why he molested the victim. (Again, this is incredibly damaging for a criminal case.) The grandmother put the call on speakerphone, and the complainant’s mother and her best friend overheard the conversation.

Prosecutors inevitably filed serious sexual assault charges against the defendant. Despite confessing to everyone, he proceeded by way of jury trial. Prior to the jury trial, the Commonwealth file a motion under 42 Pa.C.S. § 5985 notifying the defendant of its intention to have the complainant testify via video. The trial court held a hearing granting the Commonwealth’s motion and granted it. The complainant testified at trial via video. The jury convicted the defendant of serious Megan’s law offenses, and the defendant appealed.

Did the trial court properly let the complainant testify by video?

The defendant raised a number of issues on appeal, but the most interesting was his challenge to the trial court’s decision to allow the child complainant to testify via video. Pennsylvania law sometimes allows for child complainants to testify in a room other than the courtroom and have that testimony transmitted contemporaneously via video.

Prior to allowing a child victim to testify via video, however, the court must hold a hearing in open court or in camera and allow the parties to present evidence. Based on the evidence, the court must make a decision as to whether testifying either in an open forum in the presence of the fact finder or in the presence of the defendant will result in the child complainant suffering serious emotional distress that would substantially impair the child victim’s ability to reasonably communicate. In making this determination the court may observe the child complainant inside or outside the courtroom and/or hear testimony from a parent or custodian. Serious emotional distress does not just mean that the child will be upset. It does have a specific definition which deals with whether it will impair the child’s ability to communicate.

In this case, the defendant objected to the video testimony and argued that the complainant’s fear was not testifying in front of the defendant. Instead, the defense argued that the complainant’s real fear was that no one would believe her. The defendant claimed the complainant’s hesitance to testify in front of him came from speaking about a traumatic event, not from having to testify in open court, and therefore that the Commonwealth did not show the complainant would be unable to reasonably communicate in his presence.

The Superior Court’s Decision

The Superior Court approved of the trial court’s decision to allow the contemporaneous video testimony. The Superior Court relied on the record from the pre-trial hearing in the courtroom at which the mother and complainant testified. The Court noted the mother’s testimony regarding the changes in her daughter’s behavior after disclosing the incidents. Specifically, the mother testified that her daughter, the complainant, used to be involved in numerous sports and that she no longer participated in any of them. She said the complainant’s temperament changed from “very quiet” to “attacking” and explained the complainant had been nervous about testifying in front of the defendant. She stated the complainant had a “sigh of relief” when the mother told her she could testify by video.

Further, the Superior Court noted the victim’s testimony explaining that it was important when she gave a statement previously that the defendant was not there because it made it easier for her to focus on her testimony and not on the defendant.

In making its decision, the Superior Court noted that the trial court had the opportunity to observe the changes in the complainant’s demeanor and body language when she thought of testifying in front of the defendant. It believed the trial court had the best opportunity to assess the complainant’s state of mind in the context of the entire circumstances surrounding the proceeding before making its decision. The Court found the trial court’s on-the-record observations supported its finding that the defendant’s presence would have caused serious emotional distress and impaired the victim’s ability to communicate in the courtroom. Further, the Court found that the defendant suffered no prejudice because the trial court instructed the jury that video testimony is not out of the ordinary. Therefore, the Court affirmed the defendant’s conviction.

It is important to note that the video testimony must be contemporaneous and subject to cross-examination. Pre-recorded testimony is almost never allowed, and the defense must still have the opportunity to cross-examine a complainant. The video must also work - if there are issues with the connection, the quality of the audio or video, or the ability for the jury to hear and see the complainant, then that could be the basis for a challenge to this type of testimony, as well. Ultimately, this rule undermines a defendant’s right to confrontation. The whole purpose of subjecting witnesses to cross-examination live in the courtroom is to see if they will stick to their story when they have to face the accused. Indeed, that is the very definition of confrontation, and allowing witnesses to testify to a camera rather than the jury makes it easier for them to lie. Nonetheless, for now, the courts have approved of this type of video testimony for at least some juvenile alleged victims.

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

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

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 1/2/24 Zak Goldstein 1/2/24

PA Superior Court: Trial Judge May Ask Each Potential Juror if They Would Be Able to Convict Based on Complainant’s Testimony Alone

The Pennsylvania Superior Court has decided the case of Commonwealth v. Walker. The Court held that a trial court may allow prospective jurors to be asked, during the voir dire process in a sexual assault case, if they could follow the legal principle that the testimony of an alleged victim standing alone, if believed, is sufficient proof to find the defendant guilty beyond a reasonable doubt. Jurors often receive an instruction similar to the question prior to deliberations, and many judges routinely ask this question prior to trial. However, this is the first time an appellate court in Pennsylvania has specifically held that it is appropriate for the trial judge to question each juror on whether they’d be able to follow that instruction, which reminds them that no evidence other than someone’s statement is required to convict, as part of jury selection.

The Facts of Walker

The complainant, who was eighteen-years old at the time of the trial, testified that in 2013, her mother was dating the defendant. The defendant would babysit the complainant and her infant sister while their mom was at work. She testified that the defendant would come into her room and sexually assault her. The defendant did this every other day. The victim told her mother and grandmothers. She also told her doctor. Her doctor tested her for STDs, and the test was positive. The complainant’s mother did not believe her and became angry with her. The complainant also disclosed to one of her teachers when she was sixteen years old.

The complainant testified that she remembered participating in a forensic interview, and she claimed at trial she had told the interviewer about the abuse. The defense played the video of the interview, however, and it showed that she had actually denied that the abuse occurred. After being confronted with that inconsistency, she insisted that she did not disclose the abuse at the time because she was afraid.

The complainant’s grandmother and her high school teacher also testified that the complainant disclosed the abuse to them.

Prosecutors charged the defendant with various sex crimes in 2019. He proceeded by way of jury trial and was found guilty. The trial court sentenced him to 30.5 - 61 years’ incarceration. He appealed.

The Superior Court Appeal

On appeal, the defendant challenged the jury selection process. Specifically, the court asked each juror the following:

Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?

The defendant argued that this question was improper. It conditioned the jurors to find him guilty without any other evidence other than the complainant’s testimony that he committed a sexual offense.

The Superior Court’s Decision

The Superior Court rejected this claim on appeal. It ruled the question was proper and trial courts have broad discretion when conducting voir dire. The Court disagreed with the defendant as to the purpose of the question. The Court found the question was aimed at identifying potential jurors who held fixed beliefs that would not be compatible with Pennsylvania law if they were unable to set aside those beliefs. The Court also found the question to be phrased properly as it identified the beyond a reasonable doubt standard as well as language from the statutory provision codifying the principle of law that oral testimony is almost always enough to convict if a crime so long as the testimony is believed by the jurors beyond a reasonable doubt. Further, the Court found that any issue with the voir dire question was cured by the trial court’s instructions explaining that the Commonwealth had the burden of proving each and every element of the crimes charged beyond a reasonable doubt.

Therefore, the Superior Court denied the appeal. It also ruled that the trial court properly sentenced the defendant, did not consider any improper factors during sentencing, and did not impose an excessive sentence.

This jury instruction is tough for the defense. Jurors do not have to convict in the absence of any corroborating evidence, but Pennsylvania law is very clear that they may convict based on testimony alone so long as they believe the testimony beyond a reasonable doubt. Many potential jurors are surprised to learn this and express that surprise when asked this question even if they believe they would be able to follow the instruction. The prosecution is then easily able to strike those potential jurors from the panel, making it more difficult for the defense to get jurors who would want to see some corroborating evidence before convicting based on oral testimony. It is important for the defense to follow up during jury selection or arguments and stress that jurors never have to convict based solely on testimony. They are free to disbelieve the testimony, and if they’re on the fence, they are free to insist on more evidence. The Superior Court, however, has now approved of asking each juror this question during jury selection.

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

Criminal Defense Attorney Zak Goldstein — Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 12/22/23 Zak Goldstein 12/22/23

PA Superior Court: “Come Here” Not a Stop

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Jamal Rice, holding that the police did not stop the defendant by saying “come here” after allegedly seeing a gun. The trial court found the defendant was stopped without reasonable suspicion or probable cause when the police ordered the defendant to come here, so it had suppressed a firearm. The Superior Court, however, reversed the grant of the motion to suppress and remanded for a new trial.

The Facts of Commonwealth v. Jamal Rice

In Rice, the police were on patrol in Philadelphia. They were in uniform and in a marked patrol car. They were in an area which had heightened gun violence, homicides, and drugs ales. At around 7:25 pm, they saw the defendant exit a corner store and begin walking eastbound. They saw a gun shaped bulge in his waistband and naturally assumed its as a gun. They drove towards him. He quickly turned around and began walking in the other direction. He then turned onto another street.

The officers followed him and pulled up next to him in their patrol car. The defendant kept walking while looking in their direction. One of the officers said, “come here.” At the same time, the defendant began running. The police chased him. As he ran, the defendant tossed a gun underneath a parked car. The police arrested him and recovered the gun.

Philadelphia prosecutors charged the defendant with various violations of the uniform firearms act (VUFA offenses). Those included carrying a firearm as a prohibited person, carrying a firearm with an obliterated serial number, carrying a concealed firearm without a license, and carrying a firearm on the public streets of Philadelphia.

The Motion to Suppress

The defendant filed a motion to suppress. The officers testified to the above facts at the hearing on the motion. The trial court granted the motion to suppress, finding that police had no reason to believe the defendant could not legally possess a firearm prior to ordering him to come here. Further, the police needed reasonable suspicion that he was engaged in criminal activity to order the defendant to come here because a reasonable person would consider themselves to no longer be free to leave. As the police did not know if the defendant possessed the gun lawfully, the trial court reasoned that they did not have reasonable suspicion to issue commands. The prosecution appealed.

The Superior Court Appeal

On appeal, the Commonwealth argued that the defendant was not actually stopped before he fled because the one statement of “come here” did not raise a mere encounter to an investigative detention requiring reasonable suspicion or probable cause. In the prosecution’s view, the defendant would have been free to ignore the command. The prosecution emphasized that police did not activate lights/sirens, exit their cars, brandish their weapons, grab the defendant, tell him he could not leave, block his movement, or make any show of force. Instead, they simply said come here, and the defendant then took off and discarded the gun.

The Superior Court agreed with the prosecution and reversed the suppression of the firearm. The Court reasoned that saying come here alone does not turn a mere encounter into an investigative detention without something more. The defendant obviously still felt free to leave as he took off running and threw the gun, and the police did not do anything to detain him prior to his flight. Saying “come here” alone was just a request which the defendant could have disregarded (as he did in this case). Therefore, he was not illegally seized prior to discarding the gun.

The Takeaway

This is a tough one for the defense, and hopefully the defendant files additional appeals. The test for whether police have escalated a mere encounter into an investigatory detention requiring reasonable suspicion is whether a reasonable person would feel free to leave. It’s an objective standard, and it’s not based on what the individual defendant actually believed or did. There is no reasonable person on the planet who would feel free to leave when uniformed police officers pull up in a marked car and order the person to come here. Any reasonable person would feel compelled to follow that command and stop. Indeed, the court noted that the defendant did not stop, but it failed to note that the police also did not let him go - instead, they chased him in both a car and on foot. He wasn’t actually free to leave. Accordingly, the court ignored the reality that he was in fact seized and that any reasonable person would have believed themselves to be seized.

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

Goldstein Mehta LLLC Criminal Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 12/20/23 Zak Goldstein 12/20/23

PA Superior Court: Lawyer Ineffective in Failing to Move for Severance of Unrelated Cases

The Pennsylvania Superior Court has decided the case of Commonwealth v. Hamilton, finding the defendant’s trial attorney provided the ineffective assistance of counsel in failing to object to the Commonwealth’s motion to join the defendant’s two unrelated cases into one trial. The defense attorney should have moved to sever the charges. Had he done so, severance would have been granted, and the defendant would have been more likely to win. Therefore, the Superior Court vacated the conviction and remanded for a new trial.

The Facts of Hamilton

Three men named Cutshall, Barger, and Heasley conspired to rob the defendant for a debt he owed to Heasley. They lured the defendant into a car under the guise of giving him a ride to purchase marijuana in another town. The defendant sat as the rear-passenger on the driver’s side. Cutshall sat next to him while Barger drove the car with Heasley in the front passenger seat. The driver pulled the car over so he and the front passenger could go to the bathroom.

The driver and front seat passenger returned to the car. Cutshall then pulled out a BB gun and robbed the defendant. The incident took place at night, so the BB gun looked to be a real gun to the defendant. The defendant complied and handed over his cellphone, wallet, and a small drawstring bag which contained a small amount of marijuana. Cutshall, the backseat passenger, ordered the defendant to get out of the vehicle.

Unbeknownst to the three robbers, the defendant had a real handgun in his waistband. Coincidentally, the defendant had stolen the handgun from an unlocked pickup truck the day before. When he got out of the car, the defendant asked the driver if he knew about the robbery plan and the driver acknowledged he did. The defendant then held open the rear door and fired five shots into Cutshall, the man who robbed him, fatally wounding him in the neck. The defendant then went to the rear of the car and fired more rounds into the car striking Healy, the front seat passenger, once in the shoulder.

The defendant then fled into the woods but later met up with the two remaining men after the driver moved the car to a parking lot of a chiropractic center. By the time the four of them met up, Cutshall, the rear passenger, had died. The defendant stayed in the area even though he knew Heasley had called 911. The Pennsylvania State Police found the four of them in the parking lot.

The Criminal Charges

The Commonwealth charged the defendant under two separate dockets for crimes related to the shooting and for the theft of the handgun from the pickup truck. The Friday before the defendant’s shooting trial, during jury selection, the Commonwealth filed a motion to join the shooting docket and the gun theft docket into one trial, arguing the joinder would not prejudice the defendant, it would promote judicial economy, and it would eliminate the need for separate trials. The defendant’s lawyer did not object.

The trial court therefore granted the motion without objection. The trial lasted for four days. The prosecution called 16 witnesses during the trial, and only two of them testified about the theft. The Commonwealth, however, emphasized the theft heavily in its opening statement. Specifically, the prosecutor repeatedly referred to the defendant as a thief and used the term “stole” or “stolen” 15 times before calling any witnesses. The Commonwealth did not dispute that the defendant was the victim of the robbery plot by Cutshall and the others.

The jury found the defendant not guilty of murder and possession with intent to deliver. The jury found him guilty of two counts each of aggravated assault with a deadly weapon, theft by receiving stolen property, and criminal conspiracy. It also convicted on one count each of aggravated assault, criminal attempt, firearms not to be carried without a license, theft from a motor vehicle, criminal conspiracy, theft by unlawful taking, possession of a small amount of marijuana, possession of drug paraphernalia.

The trial judge sentenced the defendant to an aggregate sentence of 15 to 30 years’ incarceration followed by 37 months of reporting probation. The defendant appealed to the Superior Court, challenging the jury instructions and the discretionary aspects of his sentence. The Superior Court affirmed his conviction on direct appeal. The Pennsylvania Supreme Court denied review, so the defendant filed a Post-Conviction Relief Act Petition.

The PCRA Petition

In the PCRA petition, the defendant argued that he should receive a new trial because his trial attorney provided the ineffective assistance of counsel. Specifically, he argued that his trial counsel was ineffective for (1) not contesting the Commonwealth’s joinder motion; (2) not objecting to instances of alleged prosecutorial misconduct in the trial prosecutor’s opening remarks; (3) not objecting to the jury verdict sheet; (4) not objecting to the charging of multiple counts of theft by receiving stolen property; and (5) not objecting to the charging of multiple counts of conspiracy in the gun theft case. The PCRA court held an evidentiary hearing at which the defendant’s trial counsel testified.

Trial counsel testified that he did not object to the Commonwealth’s joinder motion because he believed evidence for the theft case would come in anyway and that the motion would pass the judicial test for joinder. He further testified that he believed if he objected the Commonwealth would delay the homicide trial and try the theft case first. He claimed that joinder was prudent because the jury would hear justification as a defense for theft, which they would not if the theft case were tried alone. Finally, regarding the joinder motion, defendant’s trial counsel testified that he believed the judge would let evidence for the theft come in under the res gestae exception in that it would be relevant in telling the full story of the homicide.

The PCRA court granted the petition with respect to the failure to object to the multiple counts of conspiracy because the multiple conspiracy counts were duplicative, but it denied the rest of the petition. The defendant filed a timely notice of appeal to the Superior Court and again raised the joinder issue.

The Superior Court’s Ruling

The Superior Court ultimately ruled in the defendant’s favor. It noted that in order to prevail under the PCRA, a defendant must show three things. First, a petitioner must show that the claim is of arguable merit. Second, the petitioner must show that no reasonably strategic basis existed to support the attorney’s action or omission. Third, the petitioner must show that the attorney’s error caused prejudice, meaning there is a reasonable probability that the result of the proceeding would have been different had the attorney handled things properly.

The defendant argued that trial counsel’s failure to object to joinder had merit because the theft of the revolver was wholly immaterial for the jury’s consideration of whether he shot Cutshall with criminal intent or whether he concealed the firearm illegally. Therefore, it would have been inadmissible as a prior bad act. He further argued that trial counsel’s above reasons for not objecting were unreasonable - the motion would not have been granted had he objected, and the introduction of the evidence caused him a great deal of prejudice. Finally, he argued that he was prejudiced when the cases were tried together because it enabled the Commonwealth to vilify him in the eyes of the jury as a thieving criminal. This made the jury less likely to view him as the victim of a serious crime.

The Pennsylvania Superior Court agreed. It ruled that the evidence that the gun was stolen had nothing to do with the facts of the shooting. The only issue was whether the defendant acted in self-defense, and whether or not the gun was stolen really had no bearing on that. It also found that the defendant suffered prejudice from the failure to object. The prosecution was able to paint him as a thief rather than as a victim, thereby making it more likely that he would get convicted. Finally, the trial attorney had no reasonably strategic basis for failing to object. The lawyer was incorrect about the evidence of the stolen gun being admissible at the homicide trial, and the other reasons were not supported by the law. Specifically, the justification defense would not have applied to the gun charge either way. Therefore, trial counsel provided the ineffective assistance of counsel, and the defendant will receive a new trial.

This is a good opinion for the defense from the Superior Court. Prosecutors are often eager to consolidate cases that should not be consolidated - it allows the Commonwealth to paint the defendant as a bad person who committed more than one crime, which makes it more likely that the defendant will get convicted by a judge or jury. It also makes it harder to defend the case, and it saves the prosecution the resources of having to try two cases. Judges do not always apply as much scrutiny to these motions as they should given the amount of prejudice that inherently comes from having two separate cases tried together. Therefore, this case should provide some limits on the ability on the Commonwealth to smear a defendant with totally unrelated criminal conduct, particularly in a murder prosecution.

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

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire