Philadelphia Criminal Defense Blog

Zak Goldstein 6/10/26 Zak Goldstein 6/10/26

PA Superior Court: No Discovery Violation Where Police Failed to Turn Over Videos to Prosecutors Until Days Before Trial

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

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lloyd, 2026 PA Super 115 (June 8, 2026), holding that the Commonwealth did not commit a discovery violation where the arresting officer failed to provide forty videos to the prosecution until days before trial and the prosecution promptly notified the defense once it received them. The Court also approved the trial court’s decision to respond to the late disclosure by granting a continuance rather than excluding the videos. The precedential opinion confirms that Rule 573 of the Pennsylvania Rules of Criminal Procedure reaches only evidence within the possession and control of the prosecution. Evidence sitting in a police file may not trigger the rule’s remedies, no matter how long the police have had it or how early the defense asked for it.

Commonwealth v. Lloyd

In November 2023, police charged the defendant with arson and related offenses for allegedly setting fire to the porch of her relatives’ home in Armstrong County. After the case was held over for trial at the preliminary hearing, the defendant filed a discovery request seeking, among other things, any videos in the possession of law enforcement.

The case moved slowly. In January 2024, the trial court granted a defense motion for a competency examination, and the court later ordered treatment to restore the defendant’s competency to stand trial. The court found her competent in October 2024, granted her request for a non-jury trial in November 2024, and scheduled trial for January 29, 2025.

On January 24, 2025, five days before trial, the parties filed dueling motions. The Commonwealth moved for a continuance, alleging that although it had previously requested discovery materials from the arresting officer, it did not receive a disc of videos from him until that same week. The prosecution first told defense counsel about the disc on January 22, 2025, and advised the next day that it contained forty videos, each running about half an hour. The defendant responded with a motion in limine under Rule 573 asking the court to exclude the videos. Her counsel filed the motion before even obtaining the disc and without any opportunity to review roughly twenty hours of footage or to consult with the defendant about it.

The defendant also opposed any continuance. She noted that the Commonwealth had listed the case for trial four times in 2024 without ever mentioning outstanding discovery, and she attributed the late production to the “bad conduct of the arresting officer.” She argued that a continuance was “not feasible” because she remained in custody and her competency might deteriorate while she waited still longer for trial. In her view, the Commonwealth had more than a year to obtain and review the videos, and its continuance request was a last-minute reaction to her motion to exclude them.

The trial court summarily denied the motion in limine, granted the continuance, and rescheduled the non-jury trial for April 1, 2025. At trial, the Commonwealth introduced the videos without further objection from the defense. The footage included gas station security video of the defendant pumping gasoline into a container and carrying it away on foot, along with residential videos showing her walking toward the fire scene with the container and later walking away and discarding the container in a dumpster. The trial court found the defendant guilty and later sentenced her to three to seven years of incarceration. After the court denied her post-sentence motion, she appealed, arguing that the videos should have been excluded and the continuance denied.

Rule 573 and the Remedies for Late Disclosure

Rule 573(B)(1)(f) requires the Commonwealth, on request, to disclose tangible objects, including documents and photographs, that are material to the case. The Commonwealth also has a continuing duty under Rule 573(D) to disclose additional evidence and to promptly notify the defendant when new material surfaces. If a court finds a discovery violation, Rule 573(E) gives it broad discretion to choose a remedy, which can include excluding the evidence.

The case law places an important limit on the rule, however. The Commonwealth need not turn over evidence that is not within its possession or control. As the Superior Court explained in Commonwealth v. Long, 753 A.2d 272, 278 (Pa. Super. 2000), “[o]ur cases uniformly hold that the prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery, as when the evidence is in police custody.”

Even when a violation occurs, exclusion is the exception. The Superior Court has suggested that in most cases, “[a] continuance is appropriate where the undisclosed statement or other evidence is admissible and the defendant’s only prejudice is surprise.” Commonwealth v. Smith, 955 A.2d 391, 395 (Pa. Super. 2008). Absent any violation, Rule 106(A) permits the trial court to grant a continuance “in the interests of justice.”

One caveat is worth noting. Rule 573 does not alter the Commonwealth’s obligations under Brady v. Maryland, 373 U.S. 83 (1963), which extend to favorable evidence in the possession of the police even when the prosecutor is unaware of it. Lloyd did not argue that Brady was at issue in her appeal.

The Superior Court’s Decision

The Superior Court affirmed. Reviewing the evidentiary ruling for an abuse of discretion, the Court concluded that Lloyd never established a discovery violation in the first place. The disclosure duty imposed by Rule 573 extends to evidence in the Commonwealth’s possession and control, not evidence that sits solely in police custody. Lloyd did not dispute that the videos remained with the police until the prosecution received them shortly before the scheduled trial date, or that the prosecution promptly notified her counsel once it had them. She also pointed to no facts suggesting the prosecution knew of or had access to the videos any earlier.

The Court acknowledged Lloyd’s frustration with the Commonwealth’s repeated trial listings that made no mention of outstanding discovery, but it held that this was not the type of delay Rule 573 was intended to address. The Court reiterated that “Rule 573 . . . does not, itself, impose a duty of due diligence on the part of the Commonwealth.” The rule requires prompt notification of additional evidence, and the prosecution provided it.

Because there was no violation, the remedies provision of Rule 573(E) never came into play, and the trial court properly denied the motion in limine. The Superior Court likewise found no abuse of discretion in the continuance, endorsing the trial court’s explanation:

The interests of justice required that both sides have a reasonable opportunity to review the new evidence, whether inculpatory, exculpatory, or neither. . . . [S]imply postponing the trial was the proper way to protect [Lloyd]’s right to a fair trial. Precluding evidence that had not been reviewed by either the Commonwealth or [Lloyd] was not the solution.

The panel added that even if the Commonwealth had violated Rule 573, the trial court still would not have abused its discretion by ordering a continuance as the remedy for the late disclosure.

The Takeaway

The decision draws a hard line between the police and the prosecution for discovery purposes, and that line seems inconsistent with the Commonwealth’s Brady obligations. A defendant can request videos at the outset of the case, the police can hold them for more than a year, and the defense still has no remedy under Rule 573 so long as the prosecutor discloses the evidence quickly once it finally arrives. For a defendant in custody, the consequences are real. The defendant waited in jail for an additional two months while the parties reviewed footage that, in her view, the Commonwealth should have obtained long before, and she did so while her competency remained a serious concern.

The opinion also shows where the fight has to happen in these cases. The outcome might be different if the defense can establish that the prosecution itself knew of or had access to the evidence earlier, so counsel should press for a record of when the district attorney’s office learned of the material rather than focusing only on when the police collected it. The defendant did not develop that record, and the Superior Court noted that she made no attempt to do so even at the post-sentence stage. Claims involving favorable evidence stand on different footing as well. Brady reaches favorable evidence in police hands regardless of what the prosecutor knows, so late-surfacing material that actually helps the defense presents a much stronger claim. The defendant may have also had a viable Rule 600 speedy trial motion due to the delays as the Commonwealth must exercise due diligence during the life of the case and may not juts seek continuances indefinitely.

Lloyd also confirms how difficult it may be to win exclusion of evidence as a discovery sanction in Pennsylvania. But the analysis also took place based on what the trial court did, and appellate courts are often deferential to the trial courts on review in these types of cases. Courts typically treat a continuance as the standard cure when the only prejudice is surprise, even on the eve of trial and even when the defendant is in custody. A defendant seeking exclusion generally needs to show something more, such as evidence that the prosecution withheld material it actually possessed or prejudice that additional time cannot fix in order to win an appeal. In practice, however, many trial courts may exclude the evidence or dismiss a case, or the continuance may trigger a speedy trial problem for the Commonwealth.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and 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 6/9/26 Zak Goldstein 6/9/26

PCRA Court Grants New Trial for Attorney Goldstein’s Client in Cumberland County Sexual Assault Case Due to Trial Counsel’s Failure to Call Character Witnesses

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, of Goldstein Mehta LLC recently won a new trial for a client in the case of Commonwealth v. J.R. In an opinion and order issued on June 9, 2026, the Cumberland County Court of Common Pleas granted J.R.’s Post-Conviction Relief Act petition, finding that trial counsel provided the ineffective assistance of counsel by failing to call character witnesses at J.R.’s trial on sexual assault charges. The court ordered a new trial and set unsecured bail, clearing the way for J.R.’s release after he had served nearly two years in state prison.

Commonwealth v. J.R.: The Allegations and the Trial

The case arose from a night out in March 2023. J.R. and three co-workers went out drinking after their shifts ended at the restaurant where they worked. At the end of the night, one co-worker drove the group home in his small two-door car. A second co-worker rode in the front passenger seat, while J.R. and the complainant sat in the back seat. The complainant became heavily intoxicated over the course of the evening and later alleged that J.R. forced the complainant to engage in sexual contact, including oral sex, during the drive. The front seat passenger testified that she heard the complainant say “help me” and turned to see J.R. holding the complainant’s hand against him. The driver testified that he did not observe any sexual contact. After J.R. was dropped off, the complainant disclosed the alleged assault to the two other co-workers, and they went to the police the following morning.

J.R. was arrested and proceeded to a jury trial in May 2024. He took the stand in his own defense and admitted that sexual contact occurred, but he testified that it was entirely consensual. The jury found him guilty of involuntary deviate sexual intercourse, sexual assault, and related offenses, and the trial court sentenced him to four and a half to nine years’ incarceration. The Superior Court affirmed the judgment of sentence on direct appeal in December 2025.

The PCRA Petition

J.R. retained Attorney Goldstein, who filed a timely Post-Conviction Relief Act petition on his behalf. The petition raised two claims of ineffective assistance of counsel: first, that trial counsel failed to impeach the driver, a Commonwealth witness, with his extensive history of crimen falsi convictions, and second, that trial counsel failed to call character witnesses on J.R.’s behalf even though several witnesses were available and willing to testify to his reputation for peacefulness and non-violence. The court held an evidentiary hearing in May 2026 at which trial counsel testified.

To win a new trial based on the ineffective assistance of counsel, a PCRA petitioner must prove that the underlying claim has arguable merit, that counsel had no reasonable strategic basis for the act or omission, and that counsel’s error prejudiced the petitioner, meaning there is a reasonable probability that the outcome of the trial would have been different. Under the Pennsylvania Supreme Court’s decision in Commonwealth v. Sneed, where the claim involves the failure to call a witness, the petitioner must also show that the witness existed, that the witness was available and willing to testify for the defense, and that counsel knew of or should have known of the witness.

The Court’s Ruling: Character Witnesses Were Critical in a He Said/She Said Case

At the hearing, it was uncontested that character witnesses existed, that they were available and willing to testify for the defense, and that trial counsel knew about them. Trial counsel testified that he chose not to call them because he did not want to distract the jury from his trial strategy, which was to argue that it would have been impossible for J.R. to sexually assault the complainant in the back seat of a small, moving car. He also acknowledged that he never consulted with J.R. about the decision.

The PCRA court rejected that explanation. As the court observed, the defense actually presented at trial was not impossibility. J.R. testified that the sexual contact was consensual, which made the trial a classic he said/she said credibility contest between J.R. and the complainant. Trial counsel himself recognized that the verdict would turn on the jury’s assessment of those two witnesses, yet he neither consulted his client about ways to bolster his credibility nor called any of the available character witnesses who could have done so. Calling character witnesses could not have undermined the defense theory because the defense theory hinged entirely on J.R.’s credibility.

Pennsylvania law treats character evidence as substantive evidence, not a mere formality. Evidence of a defendant’s good reputation may, by itself, create a reasonable doubt and require a verdict of not guilty. The principle carries particular weight in sexual assault cases. As the Pennsylvania Supreme Court explained in Commonwealth v. Weiss, in a case “where there are only two direct witnesses involved, credibility of the witnesses is of paramount importance, and character evidence is critical to the jury’s determination of credibility.” Relying on Weiss and the Superior Court’s recent decision in Commonwealth v. Alceus, the court concluded that trial counsel had no reasonable basis for failing to call character witnesses and that J.R. suffered prejudice as a result.

The court denied the separate claim concerning the impeachment of the driver. Although it agreed that the claim had arguable merit because trial counsel knew about the crimen falsi convictions and chose not to use them, the court found that counsel had a reasonable strategic basis for that decision and that no prejudice resulted. The driver did not witness the alleged assault, and his testimony was cumulative of the testimony of the other Commonwealth witnesses. The new trial was therefore granted on the character witness claim.

The Result

The court granted the PCRA petition and ordered a new trial. Because J.R. had previously posted $250,000 bail and had already served approximately twenty-two months of his fifty-four month minimum sentence, the court set bail at $250,000 unsecured pending the retrial, with the condition that he have no contact with the complainant. That ruling allows J.R. to be released from state prison while the case is pending.

This decision highlights the critical role that character evidence plays in Pennsylvania criminal trials. In a sexual assault case that comes down to the word of the complainant against the word of the defendant, evidence of the defendant’s reputation for peacefulness and non-violence may be the only corroboration the defense can offer, and the law recognizes that it may by itself create a reasonable doubt. Trial counsel must investigate potential character witnesses, consult with the client about whether to call them, and have a real strategic reason before leaving that evidence on the table. When counsel fails to do so, the PCRA may provide a path to a new trial.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Zak Goldstein 5/29/26 Zak Goldstein 5/29/26

Third Circuit: COVID-Era Courtroom Closure and Marshals Blocking the Defendants’ Mothers’ Entry Violated the Sixth Amendment, but Convictions Affirmed Anyway

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

The United States Court of Appeals for the Third Circuit has decided United States v. Girard and United States v. Harry, Nos. 24-2097 & 24-2148 (3d Cir. May 26, 2026), holding that the District Court violated the defendants’ Sixth Amendment right to a public trial twice during a federal racketeering trial in the U.S. Virgin Islands. On the first day of trial, the court required every spectator to watch from an overflow room rather than in the courtroom. On several later days, federal marshals stationed at the courtroom door kept the defendants’ mothers from coming in, even though there were seats available.

Despite finding two constitutional violations, the Court affirmed the convictions. The defendants had not thoroughly objected at the time (although their lawyers repeatedly expressed concerns), so the Court reviewed the issue for plain error. Under that more demanding standard, the Court concluded that a retrial was not warranted because the trial as a whole still had what it called the “publicity, neutrality, and professionalism” the Sixth Amendment is meant to protect.

The Facts

The defendant was the head of a violent drug-trafficking enterprise in the U.S. Virgin Islands. The co-defendant served as the enterprise’s armorer. A jury convicted the defendant of 22 counts of drug, firearm, racketeering, and other charges, and convicted the co-defendant of seven counts of racketeering and firearms charges.

The trial took place in March 2022, the day after the Chief Judge of the District Court of the Virgin Islands issued an order incrementally reinstating in-person proceedings that had been suspended during the COVID-19 pandemic. Because of ongoing concerns about the virus, the District Court restricted who could be inside the courtroom. The jury sat in the jury box, and the court set up an overflow room with an audiovisual feed for anyone who could not watch from inside the courtroom.

After the jury was selected, but before opening arguments, the defendant’s lawyer asked what arrangements had been made for the public, and asked that at least the defendant’s family be allowed in “to comply with the Constitution.” The trial judge initially refused, then agreed to allow some spectators in beginning the next day. For all of day one, however, every spectator, including the defendants’ mothers, was directed to the overflow room.

Things did not improve on the days that followed. The co-defendant’s lawyer reported the next morning that the co-defendant’s mother was still not in the courtroom. Several days later, defense counsel pointed to a newspaper article reporting that the overflow room had not opened until around 10:00 a.m. on one of the trial days. The judge called that an “inadvertent error.” A day after that, the co-defendant’s lawyer told the judge that federal marshals had again prevented the co-defendant’s mother from entering the courtroom that morning, and the judge said he would “deal with that.”

After the verdicts, both defendants moved for a new trial. The District Court held an evidentiary hearing and credited the testimony of the defendant’s mother, who said that for most of the trial, federal marshals had told her and the co-defendant’s mother to watch from the overflow room without ever explaining why. The District Court nevertheless denied the motions, finding that seats had been available in the courtroom on a first-come basis and that any technical problems with the audiovisual feed had been brief.

The Sixth Amendment Right to a Public Trial

The Sixth Amendment guarantees criminal defendants the right to a public trial. The Supreme Court has long recognized that this right is rooted in centuries of Anglo-American practice and that trials are presumptively “open to all who care to observe.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564 (1980) (plurality opinion). The right is not absolute, but courts can only close the courtroom in rare circumstances. Under Waller v. Georgia, 467 U.S. 39 (1984), a trial court has to identify an overriding interest that justifies closure, consider less restrictive alternatives, and make a record explaining its decision.

Excluding specific spectators, rather than closing the courtroom entirely, requires a less demanding showing, what the Third Circuit described as a “substantial reason.” But the trial court still has to consider alternatives and put its reasoning on the record. That requirement traces back to two older Third Circuit cases, U.S. ex rel. Laws v. Yeager, 448 F.2d 74 (3d Cir. 1971), and United States v. Kobli, 172 F.2d 919 (3d Cir. 1949).

The Court Finds Two Sixth Amendment Violations

Applying that framework, the Third Circuit identified two violations.

The first was the day-one closure of the courtroom. By directing every interested spectator to the overflow room, the District Court had effectively closed the courtroom, and it never explained why a less restrictive option, such as letting in a smaller, socially distanced audience, would not work. The Government argued that the closure was “trivial” because spectators could still watch through the audiovisual feed. The Third Circuit disagreed. One of the purposes of the public trial right is to keep judges, jurors, and lawyers conscious of the seriousness of what they are doing, and the physical presence of spectators serves that purpose more meaningfully than remote viewing. The closure also covered opening arguments and the start of evidence, which the Court considered substantial.

The Court did agree that protecting trial participants from COVID-19 can qualify as an overriding interest that justifies some courtroom restrictions, joining the Second, Ninth, and Tenth Circuits on that point. But because the trial court allowed in-person spectators with social distancing on every later day, the record gave no reason why day one had to be different.

The second violation came after the District Court reopened the courtroom. The Third Circuit found that, despite the formal reopening, federal marshals continued to turn away the defendants’ mothers for several days, even when seats were available. The Court rejected the District Court’s finding that seats had been available on a first-come basis as inconsistent with its own credibility determination favoring the defendant’s mother. And it held that the trial judge’s lack of personal awareness of the marshals’ exclusions did not cure the problem. Joining the First, Second, and Seventh Circuits, the Third Circuit held that exclusions by courtroom staff can violate the public trial right even when the judge does not know about them.

Why the Convictions Were Affirmed

The convictions still stood. Neither defendant had made a clear, contemporaneous objection to the closures, which meant the Court could only reverse on plain error. Under United States v. Olano, 507 U.S. 725, 732 (1993), a defendant who fails to object must show that there was an error, that the error was plain, that it affected substantial rights, and that it seriously affected the fairness, integrity, or public reputation of the proceedings.

The Court held that the first three requirements were either satisfied or could be assumed, but it declined to find that the errors affected the integrity of the proceedings. Drawing on its 2020 decision in United States v. Williams, 974 F.3d 320 (3d Cir. 2020), the Court explained that the trial as a whole retained the “publicity, neutrality, and professionalism” the public trial right protects. The public could observe the trial at all times, either inside the courtroom or through the audiovisual feed. The day-one closure was a good faith COVID measure rather than an attempt at secrecy. The trial judge fixed the marshals’ misconduct as soon as he learned about it. And the trial itself had run for three weeks, involved nearly 50 witnesses, and concluded more than four years before the appeal was decided. A retrial under those circumstances, the Court said, would be a “windfall inimical to the interests of justice.”

The Court also rejected the co-defendant’s separate due process and compulsory process claims. There was no evidence in the record of any off-the-record meeting between the trial judge and Harry’s codefendant witnesses, who had invoked the Fifth Amendment through their own counsel. The Court declined to require question-by-question invocation of the privilege where Harry had never disputed the witnesses’ entitlement to invoke it.

The Takeaway

Although the convictions were affirmed, Girard is an important decision on the public trial right. It confirms that even in the middle of a public health emergency, a federal trial court cannot simply close the courtroom without first considering less drastic ways to protect everyone. A blanket order sending every spectator to an overflow room, with no explanation of why a socially distanced audience would not work, is not enough.

It also makes clear that the Sixth Amendment reaches into how courtrooms are actually staffed. When a marshal or other court officer turns a family member away at the door, that exclusion counts, even if the trial judge has no idea it is happening. The Third Circuit has now joined the majority of circuits that treat those exclusions as part of the public trial inquiry.

At the same time, Girard is another illustration of how difficult it is to win on appeal when an objection was not made at trial. Even where the Court of Appeals agrees that a constitutional violation occurred, plain error review allows it to leave the conviction in place if the trial as a whole appears fair. That is one of the reasons that having an experienced criminal trial lawyer in the courtroom matters so much. Issues that are not raised at the right moment can be very hard to fix later.

Facing Criminal Charges? We Can Help.

If you or a loved one are facing criminal charges, serving a state or federal sentence, or considering a direct appeal, post-conviction petition, or federal habeas petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and 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 5/23/26 Zak Goldstein 5/23/26

PA Supreme Court: ShotSpotter Alert Plus Furtive Movements and Walking Away Provides Reasonable Suspicion

The Pennsylvania Supreme Court has decided Commonwealth v. Foster, No. 12 WAP 2024 (Pa. May 19, 2026), holding that the totality of the circumstances supported reasonable suspicion to detain the defendant after a ShotSpotter alert reported gunfire on a residential block at 2:00 a.m. The Court declined to address whether ShotSpotter alerts, standing alone, are reliable enough to support a Terry stop, treating the alert here as one factor among several.

There is also a meaningful win for the defense bar tucked inside the opinion. The Court refused to credit the Commonwealth’s “high-crime area” argument because the officer’s testimony was too vague and was not tied to the time of the stop. That portion of the decision reinforces last year’s ruling in Commonwealth v. Lewis, 343 A.3d 1016 (Pa. 2025), and gives defense counsel a usable tool at suppression hearings.

The Facts

At around 2:00 a.m. on September 17, 2019, a Pittsburgh police officer received a ShotSpotter alert reporting a single gunshot near 1439 Hoffman Street. A second alert reported four more shots at the same location while the officer was en route. He reached the intersection of Hoffman and Chateau Streets about ten to fifteen seconds after the second alert and saw a parked car with its headlights on. The defendant was in the driver’s seat. A woman was in the passenger seat. They were the only people on the street.

As the officer turned onto Hoffman Street and activated his overhead lights, the defendant got out of the car and walked toward a nearby residence. The officer testified that the female appeared to be “moving around in the car trying to grab things,” including her purse. The officer exited his cruiser and ordered the defendant to return to the street. When he did not comply, officers drew their weapons and forcibly handcuffed him.

After the seizure, officers recovered shell casings near the car and a firearm in the woman’s purse. The woman later admitted she had accidentally discharged the weapon inside the vehicle. The defendant meanwhile, smelled of alcohol and his eyes were glassy. He failed field sobriety testing, and his BAC came back at .200. He was charged with DUI and with driving while his operating privilege was suspended.

The defendant filed a motion to suppress, arguing that the seizure was not supported by reasonable suspicion. The trial court denied the motion, the defendant was convicted at a bench trial, and the Superior Court affirmed in an unpublished memorandum. The Supreme Court granted allocatur to address whether the lower courts placed too much weight on the defendant’s spatial and temporal proximity to the ShotSpotter alerts.

The Legal Framework

Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment both prohibit unreasonable seizures. An investigative detention (a Terry stop) must be supported by reasonable suspicion of criminal activity. Reasonable suspicion is less demanding than probable cause but still requires “specific and articulable facts” supplying a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” The stop must be “justified at its inception,” and facts that develop only after the seizure cannot retroactively support it.

The parties agreed that the seizure occurred when the officer exited his cruiser and ordered the defendant back to the street. The question was whether the totality of the circumstances at that moment supplied reasonable suspicion.

The Supreme Court’s Holding

The Court held that the totality of the circumstances supported reasonable suspicion. It identified four factors: (1) two ShotSpotter alerts indicating gunfire in a residential neighborhood in the middle of the night; (2) the officer’s rapid response, which left limited opportunity for a shooter to flee the immediate area; (3) the fact that the defendant and the woman were the only people present at the precise location of the alerts; and (4) what the Court characterized as the pair’s “furtive and evasive behaviors” when the officer arrived — the woman moving around inside the car as the cruiser approached with overhead lights activated, and the defendant getting out of the car and walking toward a private residence as the officer pulled up.

The Court declined to treat ShotSpotter alerts as the equivalent of anonymous tips. The defendant and amici — the ACLU, the Pennsylvania Innocence Project and PACDL, and the Allegheny County Public Defender’s Office — had urged the Court to adopt that framework and require independent corroboration of the alert before it could be used to justify a stop. The Court called the proposed framework one that would “unnecessarily complicate[ ] the straightforward legal issue presented,” and resolved the case on a totality-of-the-circumstances basis instead. Importantly, the Court did not actually decide whether ShotSpotter is reliable. It described the technology’s reliability as not properly preserved and ultimately immaterial on the record before it.

The High-Crime Area Argument Fails

The most useful part of the opinion for defense practitioners is the Court’s rejection of the Commonwealth’s “high-crime area” argument. The entirety of the proof was an officer’s answer to a leading question: asked whether the area was “known as a high-crime area,” he replied, “Manchester has its hot spots, yes,” and confirmed that the location “has been” a hot spot “in the past.”

Citing Lewis, the Court reiterated that “merely intoning buzzwords is never sufficient to prove an area is high in crime,” and that conclusory testimony characterizing an area “in broad generalities” does not establish the factor. The Commonwealth must also tie the testimony to the time of the stop, not to some unspecified moment “in the past.” The Court accordingly removed the high-crime area factor from the analysis.

Although the use of ShotSpotter as a factor is bad for the defense, the high crime analysis is helpful. The high crime area label has been doing a lot of heavy lifting in Terry stop cases for years, often supported by nothing more than an officer reciting the magic words on direct. After Lewis and now Foster, that testimony has to come with specifics: what kind of crime, how the officer knows, and a nexus to the time and place of the stop, or it does not count at all.

The Takeaway

Foster expands the set of circumstances in which a ShotSpotter alert can be used to justify an investigative detention in Pennsylvania. The Court did not hold that a ShotSpotter alert alone supports reasonable suspicion, and it expressly declined to decide whether ShotSpotter alerts are reliable enough to be treated like other evidence of crime. But it did hold that an alert, combined with the defendant’s presence at the reported location moments after the alert, the absence of any other people on the scene, and what the Court characterized as furtive and evasive behavior, is enough.

At the same time, the decision continues the Court’s push, begun in Lewis, to require more than buzzwords before an area can be treated as a high-crime area in the reasonable-suspicion analysis. A one-line answer from an officer that the location has been a “hot spot” in the past is no longer sufficient on its own.

Facing Criminal Charges? We Can Help.

If you or a loved one are facing criminal charges, serving a state sentence in Pennsylvania, or exploring a direct appeal or PCRA petition, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey, and we have won criminal appeals and PCRAs in state and federal court — including the successful direct appeal of a first-degree murder conviction and 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.