Philadelphia Criminal Defense Blog

Zak Goldstein 6/4/24 Zak Goldstein 6/4/24

PA Superior Court: Unproven Hearsay Allegations Did Not Justify Denying Expungement Petition in Domestic Violence Case

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Adams, holding that the trial court erred in denying Adams’s expungement petition because it relied entirely on unproven hearsay allegations in denying the petition. This case will hopefully sharply limit the Commonwealth’s ability to object to the expungement of a dismissed case based solely on untested hearsay allegations that the case was serious or involved domestic claims.

Adams's legal troubles began with a 2007 conviction for violating a Protection From Abuse (PFA) order and harassment against his estranged wife. Following this conviction, Adams faced additional allegations in 2008, where his wife accused him of contacting or threatening her multiple times in violation of the PFA order. This resulted in five arrests and charges. Those charges included additional PFA violations, as well as charges of harassment and terroristic threats. He was arrested on five separate dockets, but his wife did not appear in court for any of them, and the Commonwealth ultimately withdrew all charges over ten years ago.

Adams’s case thus involved two sets of charges. In 2007, he was charged with violating a PFA order and harassment. He pleaded no contest, meaning he did not admit responsibility but did not contest the evidence, and was sentenced to six months of probation. In 2008, his estranged wife alleged he violated the PFA order five more times, leading to additional charges. The specific accusations included threats of violence, but these charges were withdrawn by the prosecution due to the complainant's failure to appear for court as required.

The Expungement Petition

In 2021, Adams filed to expunge the records of his 2008 arrests. Despite the charges being withdrawn, the trial court denied his petition, citing the nature of the allegations and the hearsay evidence in the records. Adams appealed this decision to the Pennsylvania Superior Court.

The Superior Court’s Ruling

The Superior Court of Pennsylvania reviewed the trial court’s decision denying the expungement petition under the balancing test articulated in Commonwealth v. Wexler. Wexler requires weighing the petitioner’s right to be free from the harm of an arrest record against the Commonwealth's interest in retaining such records.

The Wexler Factors

The Superior Court analyzed each of the factors and ultimately concluded that a balance of all of the factors favored the petitioner.

Strength of the Commonwealth's Case:
- Contrary to the trial court, the Superior Court found that the Commonwealth's case against Adams was weak. The evidence relied solely on hearsay allegations without any formal presentation of a prima facie case. This was particularly true because Adams had not even had a preliminary hearing. In Philadelphia, summary and misdemeanor charges do not get scheduled for a preliminary hearing but instead are scheduled immediately for trial before a Municipal Court judge. Thus, there was not even sworn testimony for the trial court to rely upon. The Commonwealth instead introduced only the arrest reports (PARS reports). The allegations in the Preliminary Arrest Report Summaries (PARS) were not sworn statements and were not subject to cross-examination, rendering them insufficient even to sustain a conviction in a criminal trial. The Commonwealth also did not call any witnesses at the hearing on the expungement petition, meaning the Commonwealth relied entirely on untested hearsay.
Reasons for Retaining Records:
- The Commonwealth argued that the nature of the repeated domestic violence allegations justified retaining the records. However, the court noted that without substantiated evidence or further criminal activity by Adams since 2008, the interest in preserving these records was not compelling. The records' hearsay nature further undermined the validity of this reason.
Petitioner's Age, Criminal Record, and Employment History:
- At the time of the petition, Adams was 65 years old and had remained arrest-free since the 2008 allegations. The significant time elapsed since the charges, along with Adams's clean record for over a decade, weighed heavily in favor of expungement. The court recognized that Adams's age and lengthy period without criminal incidents demonstrated rehabilitation and a reduced risk of reoffending, making retaining the records less important.
Length of Time Between Arrest and Petition to Expunge:
- Thirteen years had passed since the withdrawal of the charges and Adams’s petition for expungement. This considerable gap, far exceeding the statute of limitations for the charges, supported the petition. The court noted that unlike in other cases where a shorter period might be insufficient, the extended time frame here was a strong factor favoring expungement. The court implied that a petition filed within the statute of limitations should be scrutinized more carefully.
Adverse Consequences to the Petitioner:
- Although Adams did not present evidence of economic harm, the court recognized potential reputational damage. Even sealed records can sometimes be accessed inappropriately, causing harm to an individual's reputation. The court also noted that having multiple arrest records, as opposed to a single incident, could lead to more significant adverse consequences for Adams in the eyes of potential employers or the public. In this case, Adams records had been sealed, but the sealing of records is not as good as a full expungement.

The Pennsylvania Superior Court’s Ruling

The Superior Court concluded that the trial court abused its discretion in denying Adams's expungement petition. The court emphasized the lack of credible evidence against Adams given that the evidence consisted entirely of hearsay, the significant time elapsed since the charges, and the undue harm maintaining the records could cause to his reputation. The decision underscores the importance of the Wexler balancing test in ensuring that expungement petitions are evaluated fairly, particularly when charges are withdrawn and the evidence against the petitioner is weak or nonexistent. It also cautions trial courts that they generally must require real evidence at a hearing on an expungement petition. Hearsay allegations may be sufficient when the Commonwealth can prove some explanation for why witnesses cannot appear such as genuine evidence of witness intimidation, but in most cases, they will no longer be enough.

This could dramatically change the practice in Philadelphia. In Philadelphia, prosecutors rarely call actual witnesses to testify at expungement hearings. Instead, they simply read the arrest report into the record even though the arrest report is hearsay. Following this case, the prosecution should be held to a higher standard and expected to produce competent evidence when they decide to oppose an expungement petition. This is an excellent decision by the court and recognizes that people should not have to live with criminal records from dismissed cases in which there was no evidence.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Lawyer Zak Goldstein Supreme Court

If you are facing criminal charges or under investigation by the police, we can help. We can also help you evaluate whether you may be able to file an expungement petition. In many cases, non-profits will handle expungements for free. But if the Commonwealth is objecting to your petition or you wish to expedite the process, we may be able to help move things along more quickly and give you a better chance of success. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/25/24 Zak Goldstein 5/25/24

PA Superior Court: Statements Made to Constables May Be Suppressed for Lack of Miranda Warnings

The Pennsylvania Superior Court has decided the case of Commonwealth v. Seeney, holding that statements made to constables during a custodial interrogation may not be admissible in court unless the constable first gave Miranda warnings.

The Facts of Seeney

In Seeney, the defendant was charged with attempting to possess a firearm as a prohibited person in violation of § 6105 and two counts of making a false statement in connection with the purchase of a firearm in violation of 18 Pa.C.S. § 6111(g)(4). The police arrested the defendant, and he was held in custody at the Bucks County Correctional Center.

The defendant was scheduled for his preliminary hearing in 2022. In the suburban counties, preliminary hearings take place at the office of a Magisterial District Justice. Sheriffs transport prisoners to preliminary hearings in Philadelphia and for other hearings in the Court of Common Pleas in the counties, but magistrates use constables for prisoner transportation. In this case, a constable transported the defendant to the magistrate’s office for his preliminary hearing. The constable had no real involvement in the case and did not particularly care about it, but in making conversation with the defendant, he asked the defendant what he was charged with. The defendant then told the constable that he had tried to buy a gun despite being prohibited from doing so.

The constable did not give the defendant Miranda warnings during this conversation and likely would not have told anyone what the defendant said. Unfortunately for the defendant, a police detective happened to overhear it. The detective then called the constable the next day and asked the constable to give a formal statement about what the defendant said to him, and the constable would have then been a witness for the Commonwealth at trial.

The Motion to Suppress

Prior to trial, the defendant moved to suppress the incriminating statement made to the constable because the constable never gave him Miranda warnings. The trial court granted the motion to suppress, and the Commonwealth appealed.

The Superior Court Appeal

On appeal, the Commonwealth argued that the constable was not required to provide Miranda warnings because 1) he did not actually interrogate the defendant and 2) he was not a law enforcement officer like a police officer or detective. The Superior Court rejected both arguments. First, it found that the constable’s questioning was clearly an interrogation. By asking the defendant about his court appearance, the constable asked questions which were reasonably likely to elicit an incriminating response. The constable’s purpose in asking the questions - that he was just making conversation - did not matter. Instead, the test is whether the questions themselves were likely to elicit an incriminating response. Second, the court found that it was irrelevant that the constable was not actually a police officer or sworn law enforcement officer. Constables provide transportation to court for the magistrate. In order to do so, they physically restrict a prisoner’s movements both by locking them in their transport vehicle and in holding cells, and by guarding them while armed with a firearm. This creates a custodial setting no different than being transported by a sworn police officer, and the constables do this on behalf of the government. Accordingly, the fact that the constable was not actually a police officer was irrelevant - it was still a custodial interrogation conducted by a state actor.

When do the police have to give Miranda warnings?

The police only have to give a defendant Miranda warnings when they are going to conduct a custodial interrogation. If the police fail to give Miranda warnings, then any statement obtained may not be used against the defendant. The failure to give Miranda warnings does not automatically result in the dismissal of a case. Instead, it would only result in the suppression of a statement if the police took a statement. Accordingly, if the police do not want to take a statement or do not care if the resulting statement is going to be admissible, then they do not have to give Miranda warnings.

Here, the defendant was obviously in custody - he was being held at the Bucks jail and transported by an armed constable, and the constable asked him questions which were likely to result in incriminating admissions. The constable worked on behalf of the government, so this amounted to a custodial interrogation which required Miranda warnings. The Superior Court therefore upheld the trial court’s order granting the motion to suppress the confession.

The ruling here seems pretty obvious, so it is somewhat surprising the prosecution appealed. The case provides a good illustration of when Miranda warnings are required, however.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Philadelphia Criminal Defense Lawyer Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 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/

Facing criminal charges or appealing a criminal case in Pennsylvania?

Attorney Goldstein in the Pennsylvania Supreme Court

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.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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