PA Superior Court: Prosecution May Cross Examine Defendant on Prior Arrests if Defendant Opens the Door

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Bullock, holding that where the defendant testifies in an unprompted manner that they’ve never been arrested before, the prosecution may then introduce evidence of prior arrests as impeachment evidence. Although there is a general rule that a defendant may not be cross examined on prior criminal convictions, that rule gives way to false testimony by the defendant which makes the prior convictions admissible impeachment evidence.

The Facts of Bullock

In 2018, the defendant’s children found the defendant passed out on the porch of their home. The children called the police. The police came to the scene, and they found the defendant stumbling, going in and out of consciousness, and smelling of PCP. The police arrested the defendant.

The children were placed with their grandparents. They then disclosed that the defendant, their mother, had allegedly been abusing them. The Commonwealth charged her with aggravated assault, strangulation, unlawful restraint, false imprisonment, and three counts of endangering the welfare of a child.

The Criminal Trial

The defendant proceeded by way of bench trial. The trial court found her guilty of the endangering the welfare of a child counts, but it acquitted her of everything else. The court sentenced her to time served to 23 months’ incarceration followed by a year of probation. She filed timely post-sentence motions. The court denied those motions, and she appealed to the Pennsylvania Superior Court.

The Issue on Appeal

At trial, the Commonwealth introduced evidence of the defendant’s prior conviction for public drunkenness. Her defense attorney objected to admission of that evidence, but the trial court overruled the objection and allowed the evidence to be admitted.

Pennsylvania has a statute which generally prohibits the Commonwealth from cross-examining the defendant themselves about prior convictions, even where the defendant testifies. The statute provides:

§ 5918. Examination of defendant as to other offenses

No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation . . .

The statute, however, has exceptions that allow the Commonwealth to do so when:

(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or

(2) he shall have testified at such trial against a co-defendant, charged with the same offense.

Here, the defense attorney asked the defendant if she used PCP or alcohol on the day in question, and she denied that she had consumed either. Later, on cross-examination, the prosecutor asked if she had ever used drugs or alcohol, and she denied that, as well. Obviously, that was untrue as the defendant had a conviction for public drunkenness. The prosecution then the evidence of that conviction.

Additionally, while testifying on direct examination, the defendant testified that she felt terrible that day, was not really sure what happened, and that she had never been arrested before. That was not true, however, as she had the prior conviction.

Following the denial of her post-sentence motions, she appealed the conviction to the Superior Court and challenged the trial court’s decision to allow the prior conviction into evidence.

The Superior Court’s Ruling on Appeal

On appeal, the Superior Court affirmed the conviction. The Court ruled that the trial court should not have allowed the prosecutor to ask if she ever used drugs or had ever used alcohol. She had not denied ever using them on direct examination; she had only denied using them that day. She had, however, suggested that she had never been arrested before. This was not true, and that statement did not come in response to the Commonwealth’s questioning but rather the questioning of her own attorney. Therefore, the Commonwealth properly impeached her with evidence of her prior conviction in response to her insistence that she had never been arrested before. The Superior Court therefore denied the appeal.

It is possible, however, that a subsequent lawyer could challenge trial counsel’s performance in a Post-Conviction Relief Act Petition as trial counsel should not have asked a question which opened the door to a prior conviction. Thus, the issue may be one of ineffective assistance of counsel rather than error by the trial court. Either way, the Court ruled that the conviction will stand.

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Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. 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.

PA Supreme Court: Trial Court May Dismiss Prosecution for Incompetent Defendant Where Defendant Unlikely to Regain Competency

Criminal Defense Lawyer Zak T Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Humphrey, holding that Section 7403(e) of the MHPA authorizes a trial court to dismiss the charges of an individual deemed incompetent in any instance that the court finds it would be unjust to resume the prosecution due to the passage of time and its effect on criminal proceedings. Notably, the Supreme Court overruled prior precedent that an individual must regain competency before a trial court may dismiss charges due to the unreasonable nature of this condition and the plain language of the statutory text.

Commonwealth v. Humphrey

While serving a state sentence, the defendant allegedly threw a bag of urine on a corrections officer. A few months later, the defendant allegedly spat on a corrections officer. The Commonwealth charged the defendant with two counts of aggravated harassment by prisoner. Preliminary hearings occurred, and the charges were bound over for trial.

Defense counsel requested a psychiatric evaluation and competency examination of the defendant, and the trial court entered an order for these evaluations. Dr. Scott Scotilla evaluated the defendant and prepared a report. In the report, the defendant displayed paranoid and delusional behavior and frequently spoke about irrelevant topics, such as conspiracy theories, and did not answer Dr. Scotilla’s questions. Dr. Scotilla reviewed Department of Corrections Mental Health Contact Notes, which showed that the defendant had engaged in similar behavior previously. The defendant’s most recent diagnosis indicated he had antisocial personality disorder and mild intellectual disability. Dr. Scotilla concluded that the defendant should be evaluated at another psychiatric center which could more effectively evaluate the defendant and provide restoration of competency services if necessary, though Dr. Scotilla did not mention in his report if the defendant’s competency could be restored or if treatment options within the Department of Corrections could address his competency issues.

The defendant’s attorney filed a petition in the trial court claiming that the defendant could not understand the nature of the proceedings against him and that his mental illness prevented him from being criminally responsible for his offenses. During the hearing on this matter, the Commonwealth agreed that the defendant was not competent to proceed to trial at the time, and the trial court entered an order for the defendant to be admitted into involuntary treatment before the case would be reevaluated. The Department of Human Services ordered the defendant to be transferred to a hospital, but the hospital informed the Commonwealth that the defendant could not be admitted because he was a state inmate serving a sentence.

The defendant eventually filed a motion to dismiss his charges because the Commonwealth was unable to find him necessary competency restoration services, emphasizing the fact that two years had already passed since his offenses occurred and that he would likely not regain competency. The Commonwealth responded, arguing that the defendant did not present sufficient evidence that he would not regain competency to stand trial and requested that the defendant be reexamined for competency. The Commonwealth provided an assessment by Dr. Cynthia Wright of the DOC, where Dr. Wright opined that the defendant’s aggressive behavior was not due to mental illness, but instead due to a desire to receive special privileges. She opined that his diagnoses were antisocial personality disorder, borderline intellectual functioning, and adjustment disorder with depressed mood.  Notably, the defendant did not cooperate with Dr. Wright’s evaluation, so she based her report on the defendant’s progress notes, treatment plans, medication summaries, diagnosis summaries, and physicians’ notes.

The court held a hearing on the defendant’s motion to dismiss. All three witnesses agreed that the DOC does not provide competency restoration services to inmates serving state sentences, but the DOC can provide some mental health treatment. The trial court granted the defendant’s motion to dismiss the criminal charges, referencing the Superior Court’s decision in Commonwealth v. McGargle and Section 7403(e), specifically the sentence that explains that a dismissal may occur if it would be unjust for the prosecution to resume based on the passage of time. The trial court noted that the defendant would only become eligible for competency restoration services in the next 2.5 to 13.5 years due to his current sentence and that even if he were paroled after 2.5 years, it is unlikely he would be able to recall the events of his offenses due to the passage of time and the severity of his incompetence.

The Commonwealth filed an appeal, raising the issues of whether the trial court’s dismissal of the defendant’s charges violated Section 7403, whether the evidence was insufficient that the defendant would be prejudiced by resuming criminal proceedings, and whether the trial court erred in dismissing the charges instead of ordering another competency evaluation. The Superior Court agreed that the trial court erroneously interpreted Section 7403(e), stating that relevant case law demonstrated that Section 7403(e) does not authorize dismissal of charges when a defendant would likely not regain competency. The Superior Court did not address the other two issues raised.

The Pennsylvania Supreme Court granted the defendant’s petition for allowance of appeal to address whether the Superior Court erred in reversing the dismissal of charges, where the defendant claimed that Section 7403(e) does authorize dismissal of charges when the resumption of prosecution would be unjust, evidence did establish that the defendant’s incompetence and the passage of time rendered the resumption of prosecution unjust, and competency evaluation was unnecessary since the trial court had concluded that sufficient time had passed for the prosecution to be rendered unjust.

The Pennsylvania Supreme Court’s Decision

The Supreme Court reviewed the MHPA, beginning with Section 7402(a), which states that when an individual who is charged with a crime is unable to understand the nature of the proceedings against him, he will be deemed incompetent to be tried, convicted, or sentenced for as long as the incapacity exists. Additionally, according to Section 7403(f), the stay of the prosecution may not last longer than 10 years in this case. The Supreme Court concluded that both the defendant’s and the Commonwealth’s interpretations of Section 7403(e) were reasonable. However, the Supreme Court determined that the consequences of the Commonwealth’s interpretation were not reasonable.

Under the Commonwealth’s interpretation, the trial court would not possess authority to dismiss criminal charges against an incompetent defendant under any circumstances. Section 7403(e) also does not state at any point that dismissal of charges is based on the defendant’s resumption of competency, which was part of the Commonwealth’s interpretation.

The Supreme Court also acknowledged that if ambiguity exists in a statute, the language should be interpreted in a way that is favorable to the defendant. The Supreme Court disagreed with the initial decision of the Superior Court, which presumed that the Legislature intended for the consequences of the statute to be unreasonable.

The Supreme Court reviewed relevant cases Hazur and McGargle, neither of which properly addressed whether a trial court may dismiss charges of an individual deemed incompetent for the foreseeable future. The Supreme Court determined that Section 7403(e) does grant trial courts the authority to dismiss criminal charges in any instance where it would be unjust to resume prosecution, whether or not the defendant has regained competency. The Supreme Court remanded the remaining issues to an intermediate appellate court. Therefore, the Superior Court vacated judgment and remanded for further proceedings.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

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. 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.

PA Superior Court: Defendant May Raise Ineffective Assistance of Counsel Claims on Direct Appeal Where Claims Are Obvious From Record

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that inadmissible opinion testimony from police about crimes the defendant may have committed but for which he was not charged require a new trial and that the defendant should have been able to raise the claim that his lawyer should have objected to this testimony on direct appeal because the ineffective assistance of counsel was obvious from the record.

Commonwealth v. Bieber

A Pennsylvania jury initially found the defendant guilty of one count of carrying firearms without a license and four counts of harassment. The jury found the defendant not guilty of 16 other counts. The defendant had originally been charged with aggravated assault and other more serious offenses. The court sentenced the defendant to a short county jail sentence, and the defendant appealed. The defendant won his first appeal after successfully arguing that the trial court had conducted a defective waiver-of-counsel colloquy. The appellate courts remanded the case for a new trial.

At the second trial, the Commonwealth proceeded only on the VUFA § 6106 charge because the defendant had been acquitted of the other offenses. Thus, even though he won his first appeal, double jeopardy had attached to the offenses of which he was acquitted. It did not attach, however, to the offense of which he was originally convicted.

VUFA § 6106 makes it illegal to carry a concealed firearm or a firearm in a car without a license to carry. There are, however, numerous exceptions. The exception at issue in this case was the Sportsman’s Permit Exception, which allows for individuals who possess a hunting license to carry a firearm in a vehicle when they are genuinely on their way to or from hunting.

The Facts at Trial

The Commonwealth established that the defendant was driving a car with his then-girlfriend when police conducted a vehicle stop. Police observed a handgun in plain view on the driver’s side of the car, in addition to a holster, a magazine containing eight rounds of ammunition, and one loose round. The handgun was unloaded. The defendant’s girlfriend told police that the gun was not loaded, but at trial, she testified that she had lied. She then testified that during the traffic stop, she heard clicks and the sound of something hitting the floor, and she further explained that the defendant had told her not to tell police that the gun was loaded.

Sergeant Craig Wharton testified that the defendant had previously possessed a license to carry a concealed firearm, but the license had been revoked in 2014. He also testified that at the time of the stop, the defendant possessed a Pennsylvania’s Sportsman’s Firearm Permit, but he did not believe Section 6106(b)(9) applied because the defendant had not been engaged in any hunting or other relevant activities at the time of the traffic stop.

Sheriff Frank Levindoski also testified, explaining that individuals without a carry-concealed permit cannot legally transport a loaded firearm in their car. He then testified to his interpretation of the proper way to transport a loaded firearm. His opinion that an individual may not carry a loaded firearm in a car without a license to carry was based on his interpretation of a different statute, § 6106.1, which the defendant had not been charged with violating. Based on the Commonwealth’s allegations, the defendant could have been charged with violating this statute, but he had not been. The defendant objected to this testimony.

The defendant then testified in response. He provided evidence of his fishing license, hunting license, and sportsman’s firearm license. He admitted he owned the firearm recovered by the police and testified that he had planned to go fishing after dropping his girlfriend off at her home. He also testified that he had had fishing poles and a tackle box in his vehicle, but the police had not searched the trunk, so they did not see those items.

During closing arguments, the Commonwealth asked the jury to rely on Sheriff Levindoski’s testimony that the defendant could not have a loaded firearm in his vehicle without a carry-concealed license unless he was an officer of the law. The jury found the defendant guilty of violating Section 6106. The defendant filed a post-sentence motion seeking unitary review on direct appeal of both his appellate claims and his ineffective assistance of counsel claims (IAC). The trial court held a hearing on the post-sentence motion, but it refused to address the IAC claim that his lawyer should have objected to the officer’s opinion testimony. It denied the motions.

The defendant again filed a timely notice of appeal.

The Pennsylvania Superior Court’s Decision

On appeal, the defendant argued that the Commonwealth elicited inadmissible opinion testimony from Sergeant Wharton and Sheriff Levindoski. He also argued that that his trial counsel was ineffective in failing to object to such testimony. The defendant also argued the trial court erred in declining to grant a new trial due to the error in admitting the improper opinion testimony. The defendant asserted the trial court erred by not permitting the defendant to raise his ineffective assistance of counsel claims in the post-sentence motion so that they would be preserved for the direct appeal.

The Superior Court began its review by addressing Section 6106 and exception Section 6106(b)(9), also known as the Sportsman’s Permit Exception. Notably, the Sportsman’s Permit Exception applies to loaded and unloaded firearms. However, a separate statute, Section 6106.1, does prohibit an individual from carrying a loaded firearm in a vehicle.

The Superior Court further addressed the defendant’s claim that the trial court erred in denying his request to litigate his IAC claims on direct appeal. The Superior Court reviewed relevant case law, including the Holmes exceptions. Typically, IAC claims may only be raised in PCRA proceedings, and PCRA proceedings take place after the direct appeal. The direct appeal generally addresses errors of law made by the trial judge where the trial judge was asked to make a ruling by the lawyers, whereas PCRA proceedings most often involve claims of ineffective assistance of counsel. Thus, a direct appeal claim would be that the judge should have granted a motion, while the PCRA claim would be that the lawyer was ineffective in failing to bring a legitimate motion.

There are exceptions to this rule, however, pursuant to Commonwealth v. Holmes. For example, a defendant may potentially raise a PCRA claim on direct appeal where the ineffectiveness is so apparent that immediate consideration would best serve the interests of justice. In such a case, the defendant generally must raise the claim in a post-sentence motion and agree to waive their right to file a PCRA following the direct appeal. Courts are most likely to address the PCRA claims early when the defendant is serving a short sentence which could expire before a PCRA may be filed. A defendant must be serving a sentence in order to file a PCRA, so if the sentence has expired, the defendant cannot litigate a PCRA. Here, the defendant had received a short sentenced, and he argued that the exception applied.

Because the defendant was unlikely to have sufficient time to file a PCRA following the appellate process, the Superior Court agreed to review the claim. The Superior Court concluded that the trial court should have permitted the defendant to raise his IAC claims in the post-sentence motions and on direct appeal because his short sentence would not afford him a realistic ability to obtain consideration of his IAC claims during a PCRA review. The Superior Court therefore addressed the issues on the merits.

The Court agreed with the defendant’s claims. It reasoned that when evidence is improperly admitted, the error is subject to harmless error analysis. The defendant argued that Sergeant Wharton’s testimony constituted improper legal opinion testimony by providing a legal conclusion. The trial court did not address the admissibility of this testimony but determined that it was harmless error, while the Commonwealth argued that his testimony simply explained with what he was charged and why. The Superior Court agreed with the Commonwealth that Sergeant Wharton did not interpret the law. Instead, he testified based on his own observations whether he saw evidence that the defendant would soon engage in hunting activities.

Regarding Sheriff Levindoski’s testimony, neither the trial court nor the Commonwealth addressed the admissibility of his testimony, though both explained that any error was harmless. The Superior Court agreed with the defendant, stating that Sheriff Levindoski should not have testified to the contents or his interpretation of Section 6106.1 since he had served as a lay witness, not an expert witness. Further, any testimony regarding § 6106.1 was irrelevant because the defendant was not charged with violating that statute.

The Superior Court also disagreed with the trial court’s assertion that the error was harmless and that the evidence was overwhelming. Although the defendant’s girlfriend testified that the defendant never said he was going fishing, the defendant did not testify that he planned to take his girlfriend fishing with him. Additionally, none of the officers testified to searching the trunk of the vehicle, where the defendant claimed that he had kept the fishing equipment. Finally, none of the officers testified to asking the defendant about his intent to go fishing. Thus, the Superior Court asserted that the issue for the jury to resolve was the defendant’s credibility and that the evidence against the applicability of the Sportsman’s Permit Exception was not overwhelming. The Superior Court also found that the Commonwealth relied on Sheriff Levindoski’s inadmissible testimony in its closing argument, proving the error was not harmless. Specifically, the Commonwealth emphasized the prohibition against carrying a loaded firearm in a vehicle under Section 6106.1, which had been introduced under Sheriff Levindoski’s testimony, though this had nothing to do with the Sportsman’s Permit Exception, and the defendant had not been charged with a Section 6106.1 violation. The Superior Court explained it could not conclude that Sheriff Levindoski’s testimony did not contribute to the verdict. Therefore, the Superior Court vacated the judgment of sentence and remanded for a new trial.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Lawyers

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. 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.

PA Superior Court: Police May Enter Car Without Search Warrant if Contraband in Plain View

Zak T. Goldstein, Esquire - Philadelphia Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided the case of Commonwealth v. McMahon, holding that the police legally searched the defendant’s car despite not obtaining a search warrant because they entered the car only to obtain contraband which was in plain view. The plain view exception allows the police to conduct a warrantless search where an object of an incriminating nature is viewed by a police officer from a lawful vantage point. The Superior Court therefore affirmed the trial court’s decision to deny the defendant’s motion to suppress incriminating evidence that had been obtained from his car.

Commonwealth v. McMahon

The defendant was stopped by two officers on patrol. The two officers conducted a traffic stop because they knew the defendant did not have a valid driver’s license from prior encounters. One of the officers, Sergeant Harrison Maddox, testified that he smelled marijuana and observed two burnt cigarettes containing marijuana in the cupholder of the car. The officers then detained and searched the defendant, finding one and a half pills that were later determined to be Oxycodone. Sergeant Maddox then searched the defendant’s vehicle and found three bags of marijuana.

The defendant filed a motion to suppress evidence. In this case, he sought to suppress the marijuana cigarettes, bags of marijuana, and Oxycodone pills. During the suppression hearing, the trial court granted the motion to suppress the bags of marijuana recovered but denied suppression of the marijuana cigarettes and Oxycodone pills. The defendant was found guilty of possessing a controlled substance and possessing marijuana after a stipulated non-jury trial.

The defendant then filed a motion for reconsideration, arguing that the trial court erred in denying his motion to suppress evidence under the plain view doctrine because the officers did not have the right of access to items inside the vehicle, and there was also no exigency to justify the seizure. The court denied that motion, and the defendant appealed.

The Pennsylvania Superior Court’s Decision

The Superior Court reviewed the relevant law and precedent regarding the plain view exception and denied the appeal. First, the Court noted that the Fourth Amendment provides that individuals cannot be subjected to unreasonable searches and seizures. A warrant for probable cause is required before an officer may search for or seize evidence. Article I, Section 8 of the Pennsylvania Constitution provides additional protections for individuals, providing that probable cause and exigent circumstances must exist in order to justify a warrantless search of a vehicle. There are, however, exceptions that may justify a warrantless search. Some examples include the consent exception, the plain view exception, the inventory search exception, the automobile exception, the stop and frisk exception, and the search incident to arrest exception.

Here, the Superior Court found that the plain view exception applies to a search of a vehicle where the police enter the car to obtain contraband which they can see from outside of the car. In order for the plain view exception to apply: 1) the officer must see the evidence from a lawful vantage point, 2) the object must be of an obviously incriminating nature, and 3) the officer must have a lawful right of access to the object.

The trial court had concluded that Sergeant Maddox testified that the object clearly had an incriminating nature, as the cigarettes both looked and smelled like marijuana, so the officer had a lawful right of access to the cigarettes. Sergeant Maddox saw the cigarettes in plain view upon approaching the vehicle, so he seized the cigarettes to prevent the destruction of evidence, and he subsequently arrested the defendant.

Goldstein Mehta LLC Criminal Defense Lawyers

On appeal, the defendant attacked the third prong of the test. Specifically, he argued that the police did not seize the item from a place for which they had obtained lawful access because they did not have the right to physically enter the car without a warrant. The defendant relied on Commonwealth v. Alexander to support his argument, but the Superior Court determined that Alexander did not address the plain view exception to a warrantless search; instead, it addressed the automobile exception. It also did not address exigent circumstances at all. In this case, the Superior Court determined that because the cigarettes were in plain view, the officer had the right to go in the car and retrieve it without getting a warrant regardless of whether exigent circumstances existed. Therefore, the Superior Court affirmed the defendant’s judgment of sentence and the trial court’s denial of the motion to suppress.

Facing criminal charges? We can help.

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. 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.