Philadelphia Criminal Defense Blog

Zak Goldstein 1/30/21 Zak Goldstein 1/30/21

PA Supreme Court Finds Trial Counsel Ineffective for Failing to Object to Improper Reasonable Doubt Instruction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Montalvo, holding that defense counsel was ineffective for failing to object to improper jury instructions on the definition of reasonable doubt. This decision is significant because it shows how important jury instructions are in a trial. Judges are required to properly instruct jurors on the relevant legal principles, and therefore, if they misstate the law, it can have disastrous consequences for the defendant. Thankfully, the Pennsylvania Supreme Court recognized this in Montalvo. As a general rule, the giving of improper jury instructions is one of the issues which is most likely to successfully lead to a new trial on appeal or in post-conviction litigation.

Commonwealth v. Montalvo

The defendant’s brother and his wife moved to York County from Puerto Rico. The couple frequently fought, and eventually, the brother moved out of the couple’s apartment. A few weeks later, the wife was seen at a local bar with a friend. At some point during the evening, the wife and her friend left the bar and walked to the wife’s apartment. Later that evening, the wife’s neighbor was awakened by the sound of breaking glass. The neighbor heard the defendant’s brother yell “open the door” after which he heard additional noises coming from the apartment. The following day, the neighbor looked through the wife’s window and saw a man lying on the floor. After seeing this, he called the police.

When the police arrived at the scene, they observed the one pane of a four-pane window in the door to the apartment was broken. Upon entering the apartment, the officers discovered the friend’s body in the kitchen and the wife’s body in the bedroom. The friend had defensive wounds on his hands and he had lipstick inserted in his mouth. The wife had a broken nose, stab wounds to her eyes, and her head was nearly severed from her body. During their investigation, the police were able to identify traces of human blood that did not belong to either victim. After analysis, the police were able to determine that the blood belonged to the defendant’s brother. The defendant’s brother was subsequently arrested and charged with the murders of his wife and her friend. He was convicted of two counts of first-degree murder and was sentenced to death.

Two months before the defendant’s brother was arrested, the police sought and obtained an arrest warrant for the defendant as a possible accomplice or participant in the murders. The defendant remained a fugitive for several years until he was arrested in Hudson, New Jersey living under an assumed name. The defendant was then extradited to York County to face trial. At his trial, most of the evidence that was presented at his brother’s trial was also presented. The only evidence presented by the Commonwealth to connect the defendant to the murders was the testimony of a grocery store owner. She testified that the defendant’s brother had used their phone to call his wife. An argument ensued after which the brother hung up the phone. The grocery store owner would testify that after he hung up the phone, he told the defendant that he wanted to kill his wife. In response to this, the defendant said “leave it to him” and that he would kill his wife himself. She also testified that after the murders, the defendant and his brother came to their house. She said she heard the brothers tell her husband in great detail how they killed the wife and her friend.

After the prosecution and the defense rested, the judge charged the jury. During her reading of the jury instructions, the trial court made two significant misstatements. First, while explaining reasonable doubt, she stated “so if the Commonwealth has not sustained its burden to that level, the burden of proving the defendant guilty beyond a reasonable doubt, then your verdict must be guilty.” The defendant’s attorney did not object to this and would later testify during a PCRA hearing that “he did not recognize the mistake.” Then, a short time later, the judge stated “if you find that the defendant was not involved in this, you should find him guilty of all those charges.” This time, the defendant’s attorney corrected the trial court by saying “Not guilty, judge.” In response to this, the judge said “not guilty. Now that was a Freudian slip.”

After the trial, the defendant was convicted of first degree and second-degree murder. The jury came back with a recommendation of death and the trial court imposed the death sentence for him. The defendant then filed a timely appeal. His appeal was denied and then he filed a PCRA petition arguing that his attorney was ineffective in his representation of him. The defendant’s PCRA hearings lasted three days. At the conclusion of the hearing, the PCRA court granted the defendant a new trial based on trial counsel’s ineffectiveness for failing to object to the trial court’s error in instructing the jury on the issue of guilt. The Commonwealth then filed a timely appeal.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court affirmed the PCRA court’s decision. In its brief, the Commonwealth did not dispute that the jury instruction was incorrect. However, it argued that it was “one isolated misstatement that occurred during the course of otherwise error-free instructions to the jury.” The Commonwealth further argued that basically everyone is familiar with the requirement that a prosecutor prove their case beyond a reasonable doubt.

The Pennsylvania Supreme Court was not persuaded by the Commonwealth’s arguments. The Court stated that it is the trial court’s sole responsibility to instruct the jury on the law as it pertains to the case before them. Additionally, the Court took issue with the Commonwealth’s characterization of trial court’s performance delivering the jury instructions. The Court highlighted that shortly after this initial mistake, the trial court misstated the law again. To make matters worse, the trial court injected its opinion on the case by saying that it “was a Freudian slip” when she misstated the law. The Court found that the trial court had “conveyed to the jury her belief that [the defendant] was guilty.” This was unacceptable to the Court and held that the defendant had been prejudiced. Consequently, the defendant’s convictions are vacated and he will get a new trial.

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Zak Goldstein 1/25/21 Zak Goldstein 1/25/21

Third Circuit Court of Appeals Rejects Entrapment Defense in United States v. Davis

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Third Circuit Court of Appeals has decided the case of United States v. Davis, holding that a defendant failed to prove that he had been entrapped when he willingly engaged with an agent, posing as a child, to meet and engage in sexual activity. Further, the Third Circuit held that an agent can be tenacious in their conversations with a defendant without entrapping them. Although this defendant did not win on appeal, the case does explain the basics of the entrapment defense in federal court. It also highlights the fact that entrapment can be a very difficult defense to prove in cases involving sex crimes.

United States v. Davis

The defendant answered an ad in the “w4m” section of Craiglist.com. This section is for women who are supposedly looking for casual sex with men. The ad was titled “Wild child” which was run, unbeknownst to the defendant, by an agent with the Pennsylvania Attorney General’s Office. The ad stated that the poster was an eighteen-year-old woman and requested that interested men respond “if you are looking for fun.” The defendant responded to the post. The agent identified himself as “Marissa” and stated that she was actually fourteen years old, to which the defendant stated “that’s ok, I know how to be respectful, do you wanna meet today?”

The defendant and “Marissa” eventually began text messaging one another. During the eight days that they texted, the defendant told “Marissa” that he was gay and lied about his age. Additionally, he avoided engaging in lewd conversation and expressed a fear of getting caught. He must have sensed that “Marissa” might not have genuine intentions because he asked if she was “affiliated with any type of law enforcement.” However, despite this concern, the defendant still engaged in grooming behavior with “Marissa.” He specifically asked her about her virginity, asked when she as not being supervised, and repeatedly offered to buy her gifts, including an iPad.

Eventually, the defendant and “Marissa” agreed that she would skip school and meet him at a McDonalds near her house in Pennsylvania. Once they came up with a plan to meet, their conversation became sexual. “Marissa” explained that she was concerned about getting pregnant to which the defendant assured her that he would “bring protection.” On the day they were supposed to meet, the defendant traveled from New York to the McDonalds where they were supposed to meet. He was subsequently arrested by the agent posing as “Marissa.”

During questioning, the defendant admitted that he knew “Marissa” was fourteen and that he had brought condoms for his visit with her. The defendant further admitted that he became attracted to young girls after visiting a water park and that he specifically liked 14-year-old girls because he believed prostitutes were unclean. The defendant would later testify at trial that he never made those statements to the agent.

The defendant was subsequently arrested and charged in federal court with one count of use of an interstate facility to attempt to knowingly persuade, induce, entice, and coerce a minor to engage in sexual activity and one count of travel in interstate commerce with intent to engage in illicit sexual conduct with a minor. The defendant elected to proceed by jury trial. At trial, he argued that he was entrapped to commit the crime and that he did not knowingly entice a minor because he believed “Marissa” was an adult who was role-playing as a fourteen-year-old. The jury was not swayed and convicted the defendant of the aforementioned charges. The defendant was subsequently sentenced to 127 months imprisonment and five years of supervised released. He was also required to register as a sex offender. The defendant then filed a timely appeal. For purposes of this blog, only the issue of entrapment will be discussed.

What is Entrapment?

Entrapment is an affirmative defense to a crime. It occurs when a defendant, who was not predisposed to commit a crime, does so as a result of the government’s inducement. To be successful in raising an entrapment defense, a defendant must establish two things: that there was government inducement of the crime and a lack of predisposition on the part of the defendant to engage in the criminal conduct. If a defendant makes this prima facie showing of these two elements, the burden then shifts to the government to disprove the entire defense by disproving one of the elements beyond a reasonable doubt.

Usually, the government will try to show that the defendant had a predisposition to commit the crime. The government can prove predisposition by showing one of the following: an existing course of criminal conduct similar to the crime for which the defendant is charged, an already formed design on the part of the accused to commit the crime for which he is charged, or a willingness to commit the crime for which he is charged as evidenced by the accused’s ready response to the inducement.

The Third Circuit’s Opinion

The Third Circuit affirmed the defendant’s conviction and sentence The defendant argued that he had been entrapped to commit these crimes because he lacked a predisposition to commit them. Specifically, he argued that that because he attempted to avoid sexual conversation with “Marissa,” his lack of criminal history, and the agent’s tenacity in the sting operation, the government induced him to break the law. The Third Circuit saw things differently. In its opinion, the Third Circuit found that the defendant did in fact have a willingness to commit these crimes. Specifically, the Third Circuit found compelling the defendant’s statements that he was attracted to young girls despite his denial of them at trial. Further, the Third Circuit also found that the defendant immediately asked “Marissa” to meet after she told him she was fourteen was significant to show that that he intended to commit these crimes. The Third Circuit rejected all of his other arguments on appeal. His convictions will stand, and he will not get a new trial.

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Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Zak Goldstein 1/12/21 Zak Goldstein 1/12/21

PA Superior Court: Police May Destroy Evidence So Long As They Do Not Do It In Bad Faith

The Pennsylvania Superior Court has decided the case of Commonwealth v. Donoughe. This decision reaffirms established law that states a defendant must make a showing that the police acted in bad faith when they destroy “potentially useful” evidence. This decision is obviously frustrating given that we, as a society, should expect that the Commonwealth should keep and maintain all evidence that is gathered during a case. Unfortunately, as Donoughe shows, that is not the case and thus defendants have an additional hurdle to overcome when they allege violations of this kind.

Commonwealth v. Donoughe

Pennsylvania State Troopers were driving on Pennsylvania Route 30 in Westmoreland County when they noticed the defendant’s blue Jeep Cherokee traveling at a high rate of speed. The troopers initiated pursuit of the vehicle and at one point had to travel at 94 miles per hour (“mph”) to maintain contact with the defendant. The speed limit on that part of the road was 55 mph. After an unknown amount of time spent following the defendant, the troopers activated their overhead lights and conducted a traffic stop of the defendant’s jeep in an adjacent store parking lot. At this time, the dashcam located on the troopers’ car initiated a mobile video recording (“MVR”) of the stop.

According to the troopers, upon reaching the driver’s side window, they were able to detect a strong odor of alcohol emanating from both the jeep and the defendant’s breath. While speaking with the defendant and requesting his documents, the troopers also noticed that the defendant’s eyes were bloodshot and glassy and his movements were very slow. Additionally, the troopers saw a case of unopened beer on the backseat. When the defendant was asked how much he had been drinking that evening, the defendant answered that he had two beers prior to driving.

The troopers then ordered the defendant to exit his jeep to undergo a field sobriety test. However, the troopers decided that because the defendant was short and obese it would be unfair to administer the full set of physical performance tests and so they only had the defendant perform the horizontal gaze nystagmus test and a portable breath test. Based on the results of those tests, the defendant was placed under arrested for DUI. He was then taken to the Greensburg Barracks where he performed a “legal breath test” which registered a .107% BAC which is above the legal limit.

The defendant was subsequently charged with DUI, careless driving, and speeding. The defendant then applied for and was accepted into Westmoreland County’s Accelerated Rehabilitative Disposition (“ARD”) program and his charges were held in abeyance upon successful completion of the program. Unfortunately, the defendant was removed from the ARD program after he failed to complete the terms of his ARD sentence. Criminal charges were subsequently refiled against him and he was listed for a non-jury trial.

The defendant filed an omnibus pre-trial motion to dismiss the two DUI counts on grounds that the MVR was not provided to the defense and thus was “potentially exculpatory” and “represented critical evidence necessary to preparing a proper defense.” The trial court denied the defendant’s motion. The court’s reasoning was that the defendant only gets relief when “potentially useful” evidence is destroyed in bad faith. Westmoreland County has a policy to destroy MVR recordings 90 days after a defendant’s acceptance into the ARD program and thus there. In this case, more than a year had passed since the defendant was arrested and when his charges were refiled against him and thus the video was destroyed as a result of county policy and not because of any animus towards the defendant.

The defendant subsequently went to trial and was found guilty of the aforementioned charges with the exception of careless driving. The defendant then filed timely post-sentence motions which were denied. He then filed an appeal. On appeal, he raised two issues. For purposes of this blog, only the issue of whether the trial court’s denial of his omnibus motion violated his due process rights will be addressed because the Superior Court found that the defendant waived his other issue.

When Does a Brady Violation Occur?

Pennsylvania courts created a three-part test to determine whether a Brady violation has occurred. First, there must be evidence that is suppressed by the prosecutor. Second, it must be shown that the evidence is favorable to the defendant. This means that the evidence could be used to impeach a Commonwealth witness or it could be exculpatory for the defendant. Finally, there must be a showing that the defendant was prejudiced by the withholding and/or destruction of this evidence. In other words, there must be a showing that the outcome of his case could be affected if this evidence was presented at trial.

In the instant case, the MVR evidence was not Brady issue because it was unknown whether the MVR would have been helpful to the defendant. The defendant therefore could not meet the third prong of the test. This is why this MVR video was described as “potentially useful.” Therefore, in order to prevail on a claim of “potentially useful” evidence, the Pennsylvania courts have required that a defendant show that the evidence was destroyed in bad faith on the part of the police. This is different from whether a Brady violation has occurred because the law allows for a defendant to get relief for a Brady violation even if the evidence was inadvertently lost or destroyed.

The Superior Court’s Decision

The Superior Court affirmed the defendant’s convictions. The Superior Court followed the established law and found that the defendant must make a showing that there was bad faith involved when the police destroy “potentially useful” evidence. This case was not a good test case to try and create new law. Specifically, in this case, the defendant conceded that the police did not act in bad faith because the MVR was destroyed in accordance with Westmoreland County policy. Further, the defendant did not even submit any reason as to why the MVR footage would have been exculpatory. Therefore, it was unlikely that the Superior Court was going to overturn an established precedent based on this set of facts. Consequently, the defendant will not get a new a trial and he will be forced to serve his sentence.

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Zak Goldstein 12/29/20 Zak Goldstein 12/29/20

PA Superior Court: Commonwealth Must Create Record of Preliminary Hearing to Survive Motion to Quash

The Pennsylvania Superior Court has decided the case of Commonwealth v. Lambert, holding that the Commonwealth bears the burden of ensuring that a recording or transcript is created at the preliminary hearing. If the Commonwealth fails to do so, then an entire case could be dismissed pursuant to a defendant’s motion to quash (also called a petition for writ of habeas corpus in most suburban counties).

This case should affect the manner in which magisterial district courts conduct preliminary hearings. Currently, many of them, including courts in Montgomery County and Delaware County, do not provide court reporters or make recordings of the proceedings. Instead, they require the defense to bring a court reporter to the hearing at the defendant’s expense. With the Superior Court’s decision in this case, however, it is now clear that the Commonwealth has an obligation to make a recording of the proceedings so that a defendant may challenge whether the prosecution successfully established a prima facie case in the Court of Common Pleas.

The Facts of Lambert

In Lambert, the defendant was charged in Butler County with Aggravated Assault, Harassment, and Recklessly Endangering Another Person. Middlesex Township Police had responded to a report of a domestic disturbance at the defendant’s residence. When they arrived, her son was waiting outside of the house. He told the responding officers that he and the defendant had engaged in a verbal argument. She then picked up a gun, pointed it at him, and threatened to shoot him. The son told the officer this versions of events both verbally and in a written statement, leading to the criminal charges.

The son, however, did not appear for the preliminary hearing. Instead, relying on the now-overruled cases of Commonwealth v. McCllelland and Commonwealth v. Ricker, the magistrate permitted the police officer to testify about what the complainant told him. This is classic hearsay, and it is now clear that a preliminary hearing may not be based entirely on hearsay. Neither party brought a court reporter to the preliminary hearing, so the court did not make any record of the proceedings. Nonetheless, the magistrate held the entire case for court, and the case went to the Court of Common Pleas.

The Motion to Quash

The defendant then filed a motion to quash (petition for writ of habeas corpus) in the Court of Common Pleas, arguing that the Commonwealth had failed to prove its case because it had only presented hearsay at the preliminary hearing. The Commonwealth summarized the proceedings from the preliminary hearing for the trial judge, but the Commonwealth had no transcript to give to the court because it had not recorded the proceedings in the district court and the district court did not provide a court reporter. Accordingly, the trial judge granted the writ of habeas corpus and dismissed the charges. The Commonwealth appealed.

The Superior Court’s Decision

On appeal, the Commonwealth argued that it had no obligation to make a record of the proceedings at a preliminary hearing. It argued that it had presented sufficient evidence, the defendant had the obligation to record the proceedings because the motion was made by the defendant, and the magisterial district justice’s decision was evidence that a prima facie case had been established.

The Superior Court rejected this argument and affirmed the decision of the trial judge. The Superior Court reasoned that the Commonwealth bears the burden at a hearing on a motion to quash of proving that it in fact established a prima facie case at the preliminary hearing that the defendant committed the crimes charged. Because the Commonwealth could not provide any record of the preliminary hearing and did not present any new evidence at the evidentiary hearing in the Court of Common Pleas, the Commonwealth failed to meet its burden. Therefore, the Superior Court agreed that the trial court properly dismissed the charges.

This is an important case, and it continues the recent trend by Pennsylvania appellate courts of re-establishing that preliminary hearings are important and that many of the rules of procedure and evidence apply during a preliminary hearing. The preliminary hearing is a key safeguard in making sure that innocent people do not remain in jail for months or years waiting for trial and in establishing that a defendant should have to go to trial in the first place. Recent decisions had undermined the protections offered by the preliminary hearing. But following this decision, it is now clear both that the Commonwealth may not rely on hearsay alone at a preliminary hearing and that the Commonwealth must create a record of the proceedings. If it does not, then either the case will be dismissed in the trial court or the Commonwealth will have to put on a second preliminary hearing.

PA Supreme Court Finds Trial Counsel Ineffective for Failing to Object to Improper Reasonable Doubt Instruction

Commonwealth v. Montalvo

The Pennsylvania Supreme Court’s Decision

Facing Criminal Charges? We Can Help.

Third Circuit Court of Appeals Rejects Entrapment Defense in United States v. Davis

United States v. Davis

What is Entrapment?

The Third Circuit’s Opinion

Facing Criminal Charges? We Can Help.

PA Superior Court: Police May Destroy Evidence So Long As They Do Not Do It In Bad Faith

Commonwealth v. Donoughe

When Does a Brady Violation Occur?

The Superior Court’s Decision

Facing Criminal Charges? We Can Help.

PA Superior Court: Commonwealth Must Create Record of Preliminary Hearing to Survive Motion to Quash

The Facts of Lambert

The Motion to Quash

The Superior Court’s Decision

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