Philadelphia Criminal Defense Blog

Zak Goldstein 4/27/21 Zak Goldstein 4/27/21

Third Circuit Court of Appeals: Brady Violation Does Not Bar Re-Trial in Federal Court

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Third Circuit Court of Appeals has decided the case of United States v. Brown, holding that the Double Jeopardy Clause of the United States Constitution does not bar a subsequent prosecution when a prosecutor engages in prosecutorial misconduct by failing to provide exculpatory evidence prior to the first trial.

United States v. Brown

In 1995, firefighters responded to a fire at the defendant’s residence. At the time, the defendant was 17 years old, and he lived there with his mother and several family members. After arriving on scene, six firefighters entered the basement where the fire had originated. Several of the firefighters became trapped and died when a staircase collapsed. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) opened an investigation. Chemical samples from the basement confirmed the presence of gasoline and investigators located a gas can close to what an expert testified was the fire’s origin. ATF concluded that the fire was intentionally set and offered a $15,000 reward for information leading to arrest and conviction. The police suspected the defendant started the fire at his mother’s direction to collect on a renter’s insurance policy.

The defendant was subsequently charged with three counts of second-degree murder, two counts of arson, and one count of insurance fraud in state court. Local, state, and federal authorities formed a joint prosecution team which consisted of an Assistant District Attorney for Allegheny County and an Assistant U.S. Attorney. At trial, the defendant argued that he could not have set the fire because he had been shopping with his mother when the fire started. However, the prosecutors called witnesses who came forward with testimony undermining the defendant’s alibi. During the trial, the witnesses denied receiving payment and that they were promised payment in exchange for their testimony. The jury found the defendant guilty of the aforementioned charges and he was sentenced to three consecutive terms of life imprisonment for each murder conviction and a consecutive term of 7.5 to 15 years’ imprisonment for the arson conviction.

A few months after the trial, the defendant filed post-sentence motions arguing that he was entitled to an evidentiary hearing because the ATF agents had offered money to potential witnesses. The trial court denied this request. The defendant also filed various appeals with the Pennsylvania Superior Court. He was able to get one of his murder convictions vacated, but he was unsuccessful in obtaining relief for his other convictions. The defendant then filed a habeas petition claiming that the prosecution failed to disclose that it had paid witnesses to testify against him. At the hearing, the Commonwealth’s attorney said that he had reviewed ATF records and contacted the prosecutors and had not seen any record of witness payment. The habeas court denied the defendant’s petition and request for an evidentiary hearing.

Nearly a decade later, the defendant filed a petition in state court under the Post-Conviction Relief Act (“PCRA”) alleging that newly discovered evidence based on an expert opinion about the cause of the fire. Additionally, a non-profit organization filed a Freedom of Information Act (“FOIA”) request with the ATF seeking all recordings relating to the payment of reward money in the defendant’s case. The ATF provided two canceled checks showing that it had made payments of $5,000 and $10,000 relating to the fire. The non-profit then contacted one of the witnesses who said he had received $5,000 from an ATF agent after the defendant’s trial.

Armed with this information, the defendant filed a new PCRA petition alleging newly discovered facts in the form of a Brady violation. The PCRA court found that the defendant’s claim about the prosecution’s nondisclosure of the witnesses’ rewards satisfied the exceptions to the PCRA’s time-bar and granted the defendant a new trial. The Pennsylvania Superior Court affirmed this decision. Upon remand to the state trial court, the defendant moved to dismiss the charges on double-jeopardy grounds. While that motion was pending, a federal grand jury indicted the defendant, charging him with destruction of property by fire resulting in death. The Commonwealth then filed a motion to nolle pros the state charges. The state court granted the motion to dismiss the state charges.

The defendant then moved to dismiss the federal indictment on Double Jeopardy grounds. Specifically, the defendant argued that his state prosecution was “a tool of the federal authorities.” The Government argued that the dual-sovereignty principle applied. That rule allows the federal and state governments to charge a defendant for the same crime. After hearing arguments, the federal District Court denied the defendant’s motion to dismiss, holding that the dual-sovereignty principle allowed the defendant’s case to go forward in federal court. The defendant then filed a timely appeal.

The Third Circuit’s Decision

The Third Circuit denied the defendant’s appeal. The Double Jeopardy Clause says that no personal shall “be subject for the same offense to be twice put in jeopardy of life or limb.” However, the Double Jeopardy Clause’s prohibition against a second prosecution for the same offense is not absolute. There are exceptions to this rule. One, obviously, is the dual-sovereignty principle. Another exception is that a prosecutor can retry a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack. This is referred to as the “trial-error rule.” In the instant case, the Third Circuit said the dual-sovereignty principle was not applicable to the defendant’s case, but rather the trial-error rule.

The trial-error rule allows the prosecution to retry a defendant where the conviction is reversed due to trial error such as incorrect receipt or rejection of evidence or incorrect jury instructions. Paradoxically, the Third Circuit also categorizes prosecutorial misconduct as a “trial-error.” In other words, according to the Third Circuit, a prosecutor can commit some type of misconduct (i.e. withhold exculpatory evidence) and that will not necessarily bar them from retrying a defendant. However, there is an exception to this rule that if the prosecutor attempted to goad a defendant into asking for a mistrial because they feared an acquittal and the mistrial was granted, then Double Jeopardy could apply. According to the Third Circuit, “the Fifth Amendment does not permit such gamesmanship.”

The Third Circuit found that this exception did not apply in this case. Although the prosecution had failed to provide the defense with discovery, the prosecution had not done so with the intent to prove a mistrial. Therefore, the mistrial exception did not apply in this case. The government will therefore be able to try the defendant in federal court.

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Zak Goldstein 4/9/21 Zak Goldstein 4/9/21

PA Supreme Court: Separate Conviction for Related Traffic Ticket Bars Prosecution for All Other Charges

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that a defendant cannot be tried for a felony case if his traffic offense that arose out of the same criminal transaction was adjudicated. This decision is significant and it could result in hundreds of felony cases being dismissed. As a practical matter, it is unclear on how much of an effect it will have on future cases because the Philadelphia Police Department no longer issues a traffic citation when they also arrest a defendant for a non-traffic offense. Nonetheless, this will have a positive impact on many individuals who have outstanding felony cases in Philadelphia.

Commonwealth v. Johnson

The defendant was stopped for a traffic stop and was charged with driving with a suspended license, possession with intent to deliver (“PWID”), and the knowing and intentional possession of a controlled substance (“K/I”). The defendant was subsequently found guilty, in absentia, of the summary traffic offense. His other charges were not adjudicated. The defendant then subsequently filed a motion to dismiss arguing that 18 Pa.C.S. § 110 (“Section 110”) requires that the government bring all known charges against a defendant arising out of a single criminal episode occurring within the same judicial district in a single proceeding. In other words, the defendant argued that when he was found guilty of the traffic offense, he could no longer be prosecuted because he had already been found guilty of a criminal offense that arose from this transaction. The trial court was not persuaded and denied his motion. The defendant then filed an interlocutory appeal.

Some insight into how Philadelphia Courts operate is necessary to understand this decision. First, Philadelphia Traffic Court was merged into Municipal Court in 2013 and thus became the Traffic Division of the Municipal Court. Next, in Philadelphia, the Municipal Court has jurisdiction to adjudicate criminal offenses that are punishable up to five years. As an example, a defendant cannot plead guilty to an F1 Robbery in front of a Municipal Court judge because the court does not have jurisdiction to accept that guilty plea. Further, a defendant cannot have a trial for F1 Robbery for the same reason. In the instant case, the defendant was charged with PWID and because he was accused of distributing heroin, the maximum sentence (assuming it was his first PWID conviction) was fifteen years’ incarceration. Consequently, the Municipal Court did not have jurisdiction to hear the defendant’s PWID charge at the trial stage. However, the Municipal Court did have jurisdiction to adjudicate his K/I charge because the maximum sentence he could have received was three years’ incarceration (assuming he had a prior K/I conviction) and thus that charge fell within the Municipal Court’s jurisdiction.

On appeal at the Superior Court, the Commonwealth acknowledged that the Pennsylvania Supreme Court’s decision in Commonwealth v. Perfetto held that Section 110 generally prohibits the government from proceeding with a prosecution subject to the jurisdiction of the Philadelphia Municipal Court. The Commonwealth conceded that they could not prosecute the defendant for the K/I charge because it fell within the Municipal Court’s jurisdiction. However, the Commonwealth argued that because the Municipal Court lacked jurisdiction over the PWID, then the trial court was correct in denying the defendant’s motion to dismiss for that claim. In defense of this position, the Commonwealth invoked Section 112(1) of the Crimes Code which states “[a] prosecution is not a bar within the meaning of [Section 110] under any of the following circumstances…(1) [t]he former prosecution was before a court which lacked jurisdiction over the defendant of the offense.” In other words, their argument was that Section 112 applied to the defendant’s case because Municipal Court could not adjudicate the defendant’s PWID charge and it was irrelevant that his traffic case had already been adjudicated.

The Superior Court was persuaded by the Commonwealth’s argument and affirmed the trial court’s decision with respect to the PWID charge. The defendant then lodged an application for re-argument which was denied by the Superior Court. The defendant then subsequently filed a petition for allowance of appeal to have the Pennsylvania Supreme Court hear the case. The Pennsylvania Supreme Court agreed to hear the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions. The issue for this decision is which offense applies for Section 112. Is it the first offense (in this case the traffic charge) or the subsequent offense (the PWID charge)? The defendant argued that Section 112 bars subsequent prosecutions when the previous court had jurisdiction over the first case whereas the Commonwealth argued that prosecution should not be barred if the original court does not have jurisdiction over the subsequent offense.

In making its decision, the Pennsylvania Supreme Court looked at the legislative history of Sections 110 and 112, appellate decisions that addressed these rules, and it analyzed the Model Penal Code which Section 112 was derived from. Based on this analysis, the Pennsylvania Supreme Court agreed with the defendant and determined that Section 112 was not applicable to the PWID charge because the Traffic Division did have jurisdiction to hear the defendant’s traffic case. As such, because Section 112 did not apply to his case, Section 110 did apply to the defendant’s PWID charge and therefore his case will be remanded back to the trial court for formal dismissal.

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Zak Goldstein 4/2/21 Zak Goldstein 4/2/21

PA Supreme Court: Nanny Cams Do Not Violate the Pennsylvania Wiretap Act

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Mason, holding that “nanny cams” do not violate the Pennsylvania Wiretap Act (“Wiretap Act”). This decision is significant because so many parents utilize these cameras when they employ caretakers to watch their children. Therefore, these caretakers should be mindful of this and understand that they will not be able to rely on the stringent protections of the Wiretap Act to protect them if they are subsequently prosecuted for crimes arising out of secret recordings made while they are working.

Commonwealth v. Mason

The defendant was hired as a nanny for a parent who lived in Franklin County, PA. During the hiring process, the parent told the defendant that she could not use corporal punishment on her children. Approximately one month after the defendant was hired, the parent’s three-year-old son told him that the defendant was “thumbing” him in the face and hitting his twin two-year-old sisters. The parent had previously noticed that his son had marks on his face and that one of the twins had a “busted lip.” When asked about his daughter’s injured lip, the defendant initially offered no explanation. However, the defendant later suggested that she may have injured herself while attempting to climb out of her playpen. The parent also asked why his son accused the defendant of “thumbing” him and striking the twins, and the defendant stated she did not know why such allegations were being made.

In response to these allegations, the parent placed a secret camera in his children’s bedroom which was capable of capturing sound and video of its surroundings. Notably, the parent did not tell the defendant that he placed the camera in the bedrooms. At some point, the camera recorded the defendant yelling at one of the children before she forcefully placed the child in their crib. Audio portions of the recording suggested that the defendant may have struck the child several times. The parent then gave the recordings to the police.

The defendant was subsequently charged with aggravated assault, simple assault, and endangering the welfare of a child. The defendant filed a habeas corpus petition to dismiss the aggravated assault charge, which was granted. She then filed an omnibus pretrial motion to suppress the audio and video recordings captured by the hidden cameras. In support of her motion, the defendant invoked the Wiretap Act, arguing that the parent had illegally intercepted her electronic and oral communications. A hearing was held to determine whether to grant the defendant’s motion. At the hearing, the parent was the sole witness called who testified to the above facts. At the conclusion of the hearing, the trial court granted the defendant’s motion. The Commonwealth then filed a timely interlocutory appeal arguing that the trial court’s decision would substantially handicap its case.

The Superior Court’s Opinion

A divided Superior Court affirmed in part and reversed in part the trial court’s suppression order. The lead opinion held that the verbal utterances captured by the cameras were to be excluded because there had been no judicial authorization or applicable exception to the Wiretap Act to permit their use at trial. Further, the lead opinion held that the defendant had no reason to believe her statements would be recorded and thus had a “justified expectation that she would not be audio recorded.” The Superior Court did reverse the trial court and held that the video, sans audio, could be used by the Commonwealth in its trial. The Commonwealth then filed a petition for allowance of appeal to have the Pennsylvania Supreme Court hear the case. The Pennsylvania Supreme Court agreed to take the case, and on appeal it addressed two issues: whether a babysitter has a reasonable expectation of privacy in the bedroom of a child she is caring for and whether the sounds coming from a child constitute oral communications under the Wiretap Statute.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and held that the Commonwealth could use the recordings (both audio and visual) against the defendant at her trial. According to the Pennsylvania Supreme Court, in order to succeed in her claim that these recordings should be deemed inadmissible at her trial, the defendant would have had to establish that she possessed a justifiable expectation that her oral communications would not have been intercepted. Based on its review of the record, the Court determined that the defendant did not meet her burden. Specifically, the Court held that the use of these cameras is so widespread that they even have a name (nanny cams) and thus no reasonable nanny should assume that they are not being recorded while performing their duties. As such, the Commonwealth will be able to use these recordings in their trial against the defendant.

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Zak Goldstein 2/8/21 Zak Goldstein 2/8/21

PA Superior Court Overturns PFA Contempt Conviction for Failure to Give Adequate Notice of Allegations in Complaint

The Pennsylvania Superior Court has decided the case of Reitz v. Flower, holding that a defendant may not be convicted of indirect criminal contempt based on conduct that was not specifically charged in the criminal complaint. The holding here should have been obvious - a criminal defense has the right to know what they’re accused of doing so that they can prepare a defense. But courts often allow variances from the allegations in a complaint and uphold convictions anyway. Fortunately, the Superior Court here recognized that the defendant was improperly convicted entirely based on conduct for which he was not actually charged. Therefore, it reversed the conviction.

Reitz v. Flower

The defendant’s ex-wife obtained a protection from abuse (“PFA”) against the defendant. The PFA order prohibited the defendant from contacting his ex-wife directly or indirectly. Additionally, the PFA order prohibited the defendant from possessing any firearms. These restrictions were put in place due to the defendant’s past conduct towards his ex-wife, specifically because of allegations of prior physical abuse and harassment.

After this order was entered, the ex-wife filed a private criminal complaint against the defendant alleging that he violated the PFA order by possessing firearms. She did not make any other allegations against the defendant. Specifically, she alleged that he posted a photo of himself armed at a rally in Harrisburg on Facebook. Consequently, a contempt hearing was scheduled to address this charge.

After this hearing was scheduled, the defendant posted on Facebook that he would not wear a mask when he appeared at his next court date because he believed it was “a form of tyranny.” It should be noted this incident occurred during the global COVID-19 pandemic. Further, the defendant wrote that he was willing to turn the court proceeding into a circus and that the contempt proceeding was “[p]etty nonsense from a vindictive woman with no legal basis.”

During the hearing, the defendant’s Facebook post alleging that his ex-wife’s claim was “petty nonsense” was introduced. Defense counsel objected to it and argued that it was irrelevant and did not relate to her sole allegation of the contempt claim which was his illegal possession of a firearm. The trial court allowed it to be introduced into evidence. At the conclusion of the contempt hearing, the trial court found that the defendant violated the PFA on two occasions. First, he violated it by not turning in his firearms and the second by making contact with his ex-wife through his Facebook post. In regards to the latter, the trial court found that the reason it found him in contempt was because “he called her a vindictive woman and called her PFA contempt petty nonsense with no legal basis.”

At sentencing, the trial court modified its adjudication to reflect a single PFA violation of harassing his ex-wife in the Facebook post. It was determined that the defendant had only been photographed brandishing a replica rifle and not an operable weapon. The trial court then sentenced the defendant to six months’ probation that was to run consecutive to any other sentences that the defendant was currently serving. Further, the PFA was extended by an additional six months. The defendant then filed a timely appeal. On appeal, the defendant argued that the trial court violated his due process rights by finding him in violation of an uncharged offense.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the defendant’s conviction. The Superior Court first cited the United States Constitution which guarantees the accused to the right to be informed of the nature and the cause of the accusations against him. The Superior Court also noted that the Pennsylvania Constitution has similar protections. Specifically, the court held that defendants must have must adequate notice to allow them to prepare any available defenses should he exercise his right to a trial. Further, in a criminal complaint, each charged offense must have a sufficient summary of the facts so the defendant is advised of the nature of the offenses charged against him.

In this case, the Superior Court found that the private criminal complaint only alleged a violation based on the defendant’s illegal possession of a firearm. There was no mention of any allegation that the defendant illegally contacted her. As such, the trial court committed reversible error in convicting the defendant because he did not have proper notice of the charges against him. Therefore, the Superior Court vacated the defendant’s conviction for contempt. However, it stressed that this decision did not bar future prosecution against him for any alleged future violations of the PFA order. This is an important case because it reigns the Commonwealth in in terms of prosecuting criminal defendants for conduct in variance with what they’re charged in the criminal complaint.

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