Philadelphia Criminal Defense Blog

Zak Goldstein 5/22/24 Zak Goldstein 5/22/24

Attorney Goldstein Argues Before PA Supreme Court in Harrisburg

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently argued before the Pennsylvania Supreme Court in Harrisburg, PA. In the case of Commonwealth v. Muhammad, the Court granted review on the following question:

Was the evidence insufficient to support Petitioner’s conviction for firearms not to be carried without a license, 18 Pa.C.S. § 6106, where the jury made a specific factual finding that Petitioner did not possess a firearm in response to a special interrogatory to which all parties and the trial court had agreed?

In Muhammad, the police arrested the defendant after finding a gun in the center console of a car to which multiple people had access. Prosecutors charged him with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105 and carrying a concealed firearm in violation of 18 Pa.C.S. § 6106. The case law holds that a felon in possession charge under § 6105 must be bifurcated from other charges and heard after the other charges have been decided. § 6105 must be bifurcated because in order to prove a violation of § 6105, the Commonwealth must introduce evidence of the defendant’s criminal record. This evidence obviously makes it very difficult for the jury to remain impartial. Once the jurors have heard that the defendant has a felony conviction, they are much more likely to convict. Therefore, trial courts throughout the state will usually conduct the trial without telling the jury about the § 6105 charge first, and then once the jury has reached a verdict on the other charges, hold a mini-trial just on the § 6105 charge at which the Commonwealth will tell the jury about the defendant’s criminal record and then ask the jury to make a decision on that case. This procedure avoids the issue of the jury becoming prejudiced against the defendant after learning that they have a record.

In this case, however, the trial court decided to use a placeholder interrogatory on the possession of a firearm. The parties agreed that instead of completely bifurcating the offense, the jury would receive an instruction on the definition of actual and constructive possession and then be asked whether the defendant possessed a firearm. If the jury answered yes, then the judge would find the defendant guilty of § 6105. If the jury answered no, then the judge would find the defendant not guilty. All parties agreed to this unusual procedure. The judge accurately instructed the jury on the definition of possession, and the jury answered “no” to an interrogatory on whether the defendant possessed and controlled a firearm. The case took a bizarre turn, however, when the jury then convicted the defendant of carrying a concealed firearm without a license.

Carrying a firearm without a license in violation of § 6106 requires possessing the firearm – so the interrogatory answer and the verdict are impossible to reconcile. If the defendant did not possess a firearm, then he could not have carried one for § 6106, and the evidence was therefore insufficient. The trial court and Superior Court, however, both found that the inconsistency was acceptable because Pennsylvania law allows for inconsistent verdicts in most situations.

Attorney Goldstein sought review in the state Supreme Court because this situation is different. The jury’s response to the interrogatory was not a verdict. Instead, it was a specific factual finding – that the defendant did not possess a gun – which negated an element of the offense for which he was convicted. Therefore, the lower courts should have entered a judgment of acquittal because the evidence was insufficient.

The Supreme Court granted review on whether inconsistent interrogatories should be treated differently from inconsistent verdicts, and Attorney Goldstein argued the case in Harrisburg last week. The Court will now likely make a decision within the next few months, and this could be a particularly important decision as trial courts have increasingly relied on interrogatories in the last few years since the United States Supreme Court found in Alleyne and Apprendi that any elements which could increase a maximum penalty or impose a mandatory minimum must be submitted to the jury.

The audio from the argument is available through the Court on Youtube here: https://www.youtube.com/live/NLbu2tIk_S4?si=gpNc7d5o1MYhQnsL&t=15566

Video of the 5/14/24 argument is available here: https://pcntv.com/pennsylvania-politics-and-policy/pa-courts/pa-supreme-court/

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Attorney Goldstein in the Pennsylvania Supreme Court

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Zak Goldstein 5/9/24 Zak Goldstein 5/9/24

PA Superior Court Finds Yet Another Lawyer Ineffective for Failing to Present Character Evidence at Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Alceus, finding trial counsel ineffective and granting the defendant a new trial because trial counsel failed to call character witnesses to testify to the defendant’s excellent reputation in the community for non-violence. The law is clear in Pennsylvania: trial attorneys must investigate and call character witnesses to testify where such witnesses are available unless the attorney has a legitimate, genuinely strategic reason for deciding not to do so. Particularly in he-said/she-said assault and rape cases, the appellate courts are very likely to find counsel who fails to call character witnesses ineffective and reverse criminal convictions.

The Facts of Alceus

The defendant in this case was convicted of aggravated assault and endangering the welfare of child. The complainant, his wife, was pregnant at the time of the incident. She claimed that she tried to leave him. During that process, she was staying at her mother’s apartment with her five children when the defendant broke into the apartment, verbally and physically assaulted her in front of the children, and inflicted severe injuries. She went to the hospital after he left.

She received medical treatment at the hospital, and the hospital called the police. The police interviewed one of the older children who did not disclose seeing any violence. Nonetheless, the police arrested the defendant, and the Commonwealth charged him with aggravated assault and related charges. The complainant testified at trial, and the Commonwealth introduced the testimony of police and medical witnesses as well as medical records which corroborated her claims.

The jury convicted the defendant of multiple counts, and the trial court sentenced him to seven to fourteen years of incarceration followed by six years of probation. Notably, the Commonwealth presented no other eyewitnesses to the alleged assault. The defendant testified and denied having committed it. He claimed that he had been at the casino with his friend and had not seen the complainant that evening. He did not know who had injured her. None of the children testified, so although the complainant in fact had injuries, this was a he-said/she-said case in which the complainant said the defendant assaulted her and the defendant said he did not assault her. The defense attorney did not call character witnesses to testify to his client’s reputation for non-violence even though the defendant had no violent convictions.

The PCRA Petition

The defendant appealed his conviction to the Pennsylvania Superior Court, and the Superior Court denied the appeal. He then filed a Post-Conviction Relief Act Petition in the trial court. In the petition, he alleged that he received the ineffective assistance of counsel because his trial lawyer failed to speak with and call witnesses to testify who would have testified that he had an excellent reputation in the community for being a peaceful, non-violent person. He argued that this evidence would have raised a reasonable doubt given the lack of any evidence other than the testimony of the complainant that he was in fact the one who committed the assault, assuming someone committed an assault.

The PCRA court held an evidentiary hearing. Trial counsel testified that he did not investigate whether his client could have presented character witnesses because he thought character testimony would confuse the jury. He wanted the jury to instead focus on the lack of investigation by the police and the fact that one of the children had told the police that nothing happened when interviewed. Obviously, calling the character witnesses to testify would not have prevented counsel from doing any of this. The potential witnesses also testified at the hearing that the defendant had an excellent reputation for non-violence and that they would have been willing to testify at trial but the lawyer did not ask them to. The defendant also testified that he asked his lawyer to call the witnesses. He was surprised when the lawyer failed to do so.

The PCRA court denied the petition. It found that trial counsel’s decision not to present character witnesses was somehow strategic and that the proposed character witnesses were not credible because their testimony was not consistent with the evidence presented at trial. The defendant appealed.

The Superior Court’s Ruling

The Superior Court reversed. It cited a long line of case law dating back more than a century to show that character witness is extremely important. Character evidence alone may be the basis for a reasonable doubt, and a defendant who presents character evidence is entitled to jury instruction informing the jury that character evidence may provide reasonable doubt even if the other evidence is believed and compelling. Trial counsel’s claimed strategy made no sense; if his goal was to show that the complainant was lying, then presenting character witnesses on the defendant’s behalf would have only strengthened that claim rather than confusing the jury. And the PCRA court failed to provide any explanation for why it believed the character witnesses were not credible. The fact that the Commonwealth presented evidence at trial had absolutely no bearing on whether the witnesses were credible as to the defendant’s reputation. Of course, the Commonwealth always presents evidence at trial. The evidence may not be true or compelling, but if the Commonwealth had no evidence, there would be no trial. The fact that the Commonwealth has evidence makes presenting character witnesses even more important.

This case illustrates the requirement that defense attorneys must present character evidence at trial for clients who have no criminal record or criminal records which are not relevant to the charges at issue in the case unless they have a very good reason for not doing so. Such reasons could include the possibility that the witnesses could be impeached with a relevant criminal record. For example, a defendant charged with a violent crime who offers character evidence of a reputation for non-violence could see the witnesses impeached with evidence of his prior violent convictions. But non-violent convictions would not be relevant. Further, trial counsel would not be ineffective for failing to call witnesses if the witnesses do not exist and no one is willing to testify on the defendant’s behalf or if the Commonwealth may be able to present credible rebuttal witnesses who would testify that the defendant actually has a bad reputation. Whether the Commonwealth may call police officers to do so, however, is debatable and should be challenged.

Each case is different, but in most cases where the defendant has no criminal history or no history of crimes involving the relevant character trait, the defense attorney should call character witnesses and is likely providing the ineffective assistance of counsel if they fail to do so. It is also clear that under Pennsylvania law, character witnesses may be only be impeached with evidence of criminal convictions for the relevant trait; they may not be impeached with arrests that did not end in convictions or uncharged bad conduct. Excuses such as local jurors do not understand or value character evidence, character evidence is confusing, or family and friends are not valuable character witnesses will not protect an attorney from ineffective assistance claims.

In this case, the Superior Court found the defendant suffered prejudice from trial counsel’s failure to call character witnesses. This was a he-said/she-said case where no one else testified that the defendant committed the crimes charged. Had the witnesses testified on his behalf, the verdict might have been different. Accordingly, the Superior Court granted him a new trial.

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Zak Goldstein 5/4/24 Zak Goldstein 5/4/24

PA Superior Court Clarifies Procedures for Challenging Time Credit Calculations

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

The Superior Court has decided the case of Commonwealth v. Wheeler, holding that the trial court properly denied Wheeler’s motion for time credit. The case did not really change any of the rules around challenging a time credit calculation, but it provides a helpful explanation on the proper motions and forums in which time credit challenges should be brought.

The Facts of Wheeler

Wheeler was convicted of multiple drug-related offenses, including conspiracy to possess with intent to deliver (“PWID”) and criminal use of a communication facility (“CUCF”). He received concurrent state sentences on three different docket numbers. The trial court ordered that he receive credit of time served but did not specify how much credit he should receive on each case. The Department of Corrections put all of his time credit on one docket and found that he had no time credit for the other two, so he filed a motion in the trial court asking the trial judge to give him time credit on all of the cases. The trial court denied the motion.

The Superior Court Appeal

Wheeler appealed to the Pennsylvania Superior Court from the order denying his pro se motion to modify the credit for time served. He argued that there was an error in how the Department of Corrections (DOC) calculated his credited time. The Superior Court, however, disagreed. It denied the appeal, holding that the trial court properly awarded credit for time served at the time of sentencing, and that Wheeler’s challenge pertained to the DOC's application of this credit, not to the legality of the sentence itself. Accordingly, the issue did not fall under the PCRA or the trial court’s jurisdiction.

The Superior Court explained that there are three types of time credit issues:

1) The trial judge’s order is correct, but the Department of Corrections has miscalculated the time credit. In this situation, an inmate should first challenge the time credit calculation through internal procedures and if that is unsuccessful, file a lawsuit against the DOC in the Commonwealth Court.

2) If the sentence is ambiguous or unclear, then the petitioner should file a motion for habeas corpus in the trial court. This type of motion does not fall under the Post-Conviction Relief Act, and so a petitioner may be able to file this type of motion even if the deadlines have expired or the petitioner has already filed a prior PCRA petition which was denied.

3) The sentence or the time credit order in the judgment of sentence is illegal. In this situation, there would be a due process violation, and the petitioner should file a PCRA petition within one year of the judgment of sentence becoming final. If the petitioner fails to file within a year or has previously litigated a PCRA petition, the petitioner may not be eligible for relief.

In this case, the Superior Court recognized that the trial court had properly ordered that the defendant receive credit for time served. The defendant’s complaint was really with the DOC’s calculation of that time credit, so the defendant should have filed suit in Commonwealth Court rather than filing a motion in the trial court. Therefore, the Superior Court affirmed. Wheeler may still be able to file in Commonwealth Court, although filing in Commonwealth Court is generally more complicated than submitting a motion in the Court of Common Pleas.

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Goldstein Mehta LLC Criminal Lawyers — Zak T. Goldstein, Esquire - Philadelphia Criminal Defense Lawyer

Zak Goldstein 4/24/24 Zak Goldstein 4/24/24

PA Superior Court: Defendant Making Hand into Shape of Gun and Pretending to Shoot Witness Is (Obviously) Direct Criminal Contempt

The Pennsylvania Superior Court has decided the case of Commonwealth v. Williams, holding that the Philadelphia Court of Common Pleas properly found the defendant guilty of direct criminal contempt for making his hand into the shape of a gun and pretending to shoot the witness against him during his preliminary hearing.

The Facts of Williams

The defendant was charged with burglary and related charges. When he was brought into courtroom for his preliminary hearing, he made his hand into the shape of a gun and made a shooting motion at the witness against him. The witness did not actually see it, but unfortunately for Williams, the judge did. The judge finished the hearing, held the charges against Williams for court, and then moved directly into a trial on a summary charge of direct criminal contempt for obstructing the proceedings.

The defendant agreed that his hand had been in that position, but he claimed that he had some sort of twitching disorder which caused it to happen involuntarily. He admitted he had not warned anyone that this could happen when he was brought into the courtroom, but he claimed that he did not realize he was going into a courtroom. Unsurprisingly, the trial court promptly rejected this testimony, found him guilty, and sentenced him to 30 – 60 days’ incarceration. The defendant had an extensive criminal record, which did not help his case or his claim that he did not know he was headed into the courtroom. The defendant appealed.

Direct criminal contempt includes misconduct in the court's presence that is committed with the intent to obstruct proceedings. The conduct may qualify as contemptuous even if it does not directly disrupt the court’s operation but only threatens the dignity and authority of the court. Here, the conduct arguably did both.

The Superior Court’s Ruling

The Superior Court quickly affirmed. It found substantial evidence supported the trial judge’s ruling and that the trial judge was best suited to determine whether or not the defendant’s somewhat silly explanation was credible. The trial judge had the right to reject that explanation, and it was not the Superior Court’s job to reweigh the evidence.

The Superior Court opined that misconduct need not cause a visible interruption to the proceedings or a delay in the proceedings in order to constitute an obstruction of justice. Of course, the mere act of threatening a witness may impede the fairness and integrity of the proceedings, and the trial judge properly rejected the defendant’s explanation. The Superior Court therefore upheld the conviction.

The Takeaway

This case is not particularly surprising. Threatening witnesses in court does not go over well with the judge and the DA, and it usually does not make the case better. It can lead to increases in bail, relatively minor contempt charges, jury instructions that the jury may hold the actions against the defendant in deciding guilt, and even serious felony witness intimidation charges. The system does not always seem fair to criminal defendants and other witnesses, and it often may not be. But threatening witnesses is usually not going to improve the situation, and the appellate courts are not likely to be sympathetic in these cases.