Philadelphia Criminal Defense Blog
PA Superior Court Upholds Dismissal of Case Where Prosecutor Intimidated Defense Witness
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Byrd, upholding the trial court’s decision to dismiss serious criminal charges due to prosecutorial misconduct. Specifically, in Byrd, the trial court found that the assigned Assistant District Attorney intentionally intimidated a potential defense witness and pressured her not to come to court. The Superior Court agreed and found that the prosecutorial misconduct required the dismissal of the charges under the Double Jeopardy Clauses of both the United States and Pennsylvania constitutions.
Commonwealth v. Byrd
The defendant was charged with multiple drug, firearm, and sexual assault offenses in Allegheny County, PA. As a result of multiple suppression motions that the defendant filed on his behalf and which were on appeal with the Superior Court, only the charge of Persons Not to Possess a Firearm Charge (VUFA 6105) went to trial. The defendant demanded a jury trial and chose to represent himself, but he did have stand by counsel assisting him. The trial began on November 28, 2018. In the middle of the trial, the judge received a voice mail from a woman who had been set to testify as a character witness for the defendant in which the woman claimed that the assigned ADA intimidated her out of testifying.
The judge held a hearing outside the presence of the jury and played the voice mail. In this message, the witness stated that she had been threatened by the ADA. She stated that she was scared to the point where she did not want to participate in the trial. She further stated that the ADA told her that the defendant “is the most dangerous man that he has ever met or ever seen” and asked if she knew “how or why he was in jail up in Ohio.” The prosecutor also went into specific detail about the prior charges against the defendant. Finally, the prosecutor brought up personal details about the witness. He informed her that he was aware of her financial hardship, a recent break-up, and that “he knows a lot more about me than he should.” According to her, this phone call “freak[ed] [her] out,” and she was scared of retaliation by the District Attorney’s Office and police. She was concerned that she or her family members could be charged with a crime that they did not commit. At the end of the hearing, the judge declared a mistrial because of the ADA’s actions.
The trial court then held hearings on February 13, 2017 and March 20, 2017 to determine whether the case against the defendant should be dismissed with prejudice. At the hearing, the ADA testified. On direct examination, he testified that he obtained personal information about the witness from listening to the phone calls from the defendant. He further stated that the purpose of the call was to see whether the defendant’s prior convictions would affect her opinion of the defendant. He denied that he was trying to intimidate her.
On cross-examination, he admitted that he told the witness that the defendant was one of the most dangerous people that he had ever met. He also admitted that he knew personal details about the witness from listening to the defendant’s prison phone calls. After these hearings, the trial court dismissed the charge with prejudice. The trial court then banned the prosecutor from ever litigating in her courtroom again and called him “sneaky.” The Commonwealth appealed.
In its appeal, the Commonwealth did not dispute that a mistrial should have been granted in the defendant’s case. The Commonwealth only appealed the finding of prosecutorial misconduct that resulted in the trial court dismissing the charges and preventing retrial because of double jeopardy. Specifically, the Commonwealth argued that the trial court failed to discern the distinction between prosecutorial error, which would not require the dismissal of the charges, and prosecutorial overreach, which would.
What is Double Jeopardy?
The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 1, § 10 of the Pennsylvania Constitution protect a defendant from repeated criminal prosecutions for the same criminal episode. The basic premise behind the Double Jeopardy Clause is that the government only gets one opportunity to convict a defendant. If the defendant is acquitted of a crime, then the government cannot try him again. However, an acquittal is not the only way to trigger the Double Jeopardy Clauses. It is also important to note that a state court conviction or acquittal may not prevent the federal government from prosecuting the defendant on federal charges.
Can Prosecutorial Misconduct Trigger Double Jeopardy Protections?
Yes. If a prosecutor engages in certain forms of intentional misconduct, the Double Jeopardy Clause bars retrial. Pennsylvania’s Constitution provides broader protections for criminal defendants than the U.S. Constitution. Consequently, Article I § 10 of the Pennsylvania Constitution bars retrial not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. It is important to note that that an error by a prosecutor does not necessarily deprive the defendant of a fair trial. However, where the prosecutor’s conduct changes from mere error to intentionally subverting the court process, then a fair trial is denied and the charges must be dismissed.
It is important to emphasize that an inadvertent mistake by a prosecutor can be remedied by a mistrial and subsequent re-trial. It is only the more egregious actions by prosecutors that will result in the court dismissing the case with prejudice. As the Pennsylvania Superior Court stated in a previous decision that addressed this issue “intentional prosecutorial misconduct…raises systematic concerns beyond a specific individual’s right to a fair trial that are left unaddressed by retrial.”
The Superior Court’s Decision
The Pennsylvania Superior Court affirmed the trial court’s dismissal of the charges against the defendant. Two judges voted in favor of affirming the order, and one judge dissented. The Court agreed that the ADA intentionally intimidated the witness to prevent her from testifying with the intent of depriving the defendant of a fair trial. Specifically, the Superior Court was deeply troubled by the prosecutor’s conduct in informing the witness of personal details of her life and that he editorialized about the defendant’s dangerous propensity. The Superior Court found that the prosecutors statements placed the witness in fear for her own safety and for that of her family. Thus, according to the Superior Court, the prosecutor’s actions were intended to deprive the defendant of a fair trial. His acts triggered double jeopardy protections, and the case against the defendant was properly discharged.
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, Theft, Rape, and Attempted 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.
Not Guilty: Attorney Goldstein Wins Acquittal for Client Accused of Rape
Criminal Defense Lawyer Zak T. Goldstein, Esq.
Our Philadelphia criminal defense lawyers have successfully defended thousands of clients who were charged with serious felonies including violent crimes like Rape, Aggravated Assault, and Sexual Assault. In a recent, important win, defense attorney Zak T. Goldstein, Esquire was able to obtain an acquittal on rape charges for a client following a bench trial in the Philadelphia Court of Common Pleas.
Rape cases are some of the most difficult types of cases to defend in Philadelphia criminal court. In many of these cases, there is no physical evidence, and the case comes down to whether the judge or jury believes the complainant or the defendant. This can be particularly problematic because many defendants do not want to or should not testify for various reasons having nothing to do with guilt or innocence. For example, the defendant may simply be a bad witness, may be too nervous to testify, or may have a criminal record that could become admissible if the defendant takes the stand. This can leave the court with a one-sided version of events that may not reflect what actually happened.
It is also surprising and sometimes frightening to many people that rape and sexual assault cases do not require a lot of evidence for the prosecution to obtain a conviction. In most rape and sexual assault cases, prosecutors are able to obtain a jury instruction to the effect that the fact-finder may find the defendant guilty in a case of sexual assault even if there is no corroborating evidence or any witnesses other than the alleged victim if the jury believes the testimony of the complainant. These types of cases are always challenging because the sworn testimony of one witness, without any other evidence, may be sufficient under Pennsylvania law for a defendant to be convicted of rape if the judge or jury believes that testimony beyond a reasonable doubt.
Against this legal backdrop, Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire recently won an important case for a client accused of rape, sexual assault, and other related charges. In the case of Commonwealth v. R.M., Attorney Goldstein was able to successfully argue to the judge who presided over the bench trial that the complainant had fabricated the allegations and that the court should not believe her testimony beyond a reasonable doubt. Accordingly, the judge found R.M. guilty only of minor, non-sex crime misdemeanors and sentenced him to time served. The judge ordered immediate parole for R.M.
In this case, the complainant alleged that she had been dating R.M. for a number of months. At some point, the relationship began to sour, and R.M. and the complainant had a physical altercation. The altercation allegedly began with a verbal argument and some slapping and hitting, but the complainant claimed that it eventually escalated into R.M. having sex with her despite her telling him not to. The complainant reported this incident to the police, and prosecutors charged R.M. with a number of Megan’s Law offenses.
At trial, Attorney Goldstein was able to show that this testimony was entirely unreliable by thoroughly investigating the case and effectively cross-examining the complainant on significant inconsistencies in her statements.
First, Attorney Goldstein was able to show that the complainant had a motive to fabricate the allegations against R.M. because R.M. had moved out of their shared home and begun dating another woman prior to the complainant making the allegations.
Second, Attorney Goldstein was able to show that the complainant’s reaction to the alleged incident was suspect; instead of going to the police, the complainant went directly to R.M.’s probation officer to report the incident. This suggested that the complainant was more focused on getting R.M. locked up for revenge than in reporting an actual crime.
Third, Attorney Goldstein’s investigator obtained a copy of the Protection from Abuse Order that the complainant obtained against R.M. shortly after the alleged sexual assault. In this PFA, which was made just days after the incident, the complainant claimed that the incident had occurred on a different date and described it solely as a physical fight; she completely failed to mention any kind of sexual assault. Armed with this information as well as a number of inconsistencies between the complainant’s testimony at the preliminary hearing and at trial, Attorney Goldstein was able to successfully convince the judge that the Commonwealth’s evidence, which consisted only of the complainant’s testimony, was not enough to convict the defendant of any sex crimes beyond a reasonable doubt. Accordingly, the Philadelphia Court of Common Pleas Judge found R.M. Not Guilty of all the sex crimes and released him from custody.
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 obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Forgery, Access Device Fraud, Rape, and Attempted 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.
Attorney Goldstein Obtains Not Guilty Verdict in Indecent Assault Jury Trial
Philadelphia Criminal Defense Lawyer Zak Goldstein
Philadelphia criminal defense lawyer Zak T. Goldstein obtained a full acquittal in a jury trial in the case of Commonwealth v. S.R. In S.R., the defendant was charged with one count of Indecent Assault for allegedly groping his friend while his friend was sleeping. The complainant, who was staying at his friend’s apartment for a few days in between leases, alleged that he awoke in the middle of the night to find S.R. with his hand in his pants. The complainant immediately confronted S.R., and S.R. allegedly admitted to having done the same thing two nights prior. S.R. promptly called the police and told the police what had happened. Police arrested S.R. and charged him with Indecent Assault as a misdemeanor of the second degree.
S.R. was initially convicted of the charge during a bench trial by a Municipal Court judge when represented by a different lawyer. However, because all defendants charged with a crime punishable by one year or more are entitled to have a jury trial, S.R. was able to appeal to the Philadelphia Court of Common Pleas for a trial de novo. In a trial de novo, the Municipal Court verdict is set aside and the defendant is able to have an entirely new trial with a jury instead of a judge. S.R. exercised his right to a jury trial and was defended at trial by Attorney Goldstein.
Attorney Goldstein obtained a full acquittal following a two-day jury trial. Although the complainant testified similarly to his testimony at the Municipal Court trial, Attorney Goldstein was able to use his cross-examination skills to highlight a number of inconsistencies and problems with the complainant’s testimony and argue that the complainant was not telling the truth. For example, there were significant inconsistencies in the details of the alleged sexual assault between the complainant’s statement to police and his testimony at prior hearings. Further, instead of simply allowing the police to conduct their investigation and prosecutors to proceed with the case against S.R., the complainant continued to contact S.R. hundreds, if not thousands, of times while the charges were pending. Our investigators obtained phone records showing that even after calling the police, the complainant called S.R. hundreds of times in the year after the alleged assault and also sent S.R. hundreds of obscene, homophobic, and threatening text messages and voice mails. Further, Attorney Goldstein was able to introduce evidence that S.R. had good character and an excellent reputation in the community for being a peaceful, law-abiding citizen.
Using these inconsistencies, homophobic texts, and S.R.’s excellent reputation, Attorney Goldstein was able to convince the jury to reject the complainant’s testimony as false. Attorney Goldstein argued that there was simply more going on because the complainant’s reaction and ongoing harassment campaign, which continued for more than a year, was totally disproportionate to what was alleged. Thus, the jury likely concluded that the complainant must initially been interested in a relationship with the defendant but then had a change of heart. The jury quickly acquitted S.R. of all charges, and S.R. will be able to have his record expunged. The verdict is a huge win for S.R. because although Indecent Assault is a misdemeanor charge which may not carry jail time, it is a life-changing offense because it requires 15 years of mandatory Megan’s Law registration. S.R. will not have to register as a sex offender because of this acquittal.
Facing criminal charges? We can help.
Criminal Defense Lawyers - Philadelphia
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 obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Forgery, Access Device Fraud, Rape, and Attempted 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.
I've been accused of sexual assault by my college. What is going to happen?
What is Title IX?
Title IX Defense Lawyer Demetra Mehta
Title IX is a federal civil rights law sighed by President Richard Nixon in 1972 as part of a larger Education bill. At its core Title IX prohibits discrimination on the basis of sex in educational institutions when those instructions receive federal aid.
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681
This had an enormous effect in opening up higher education to woman in all fields of study as well as establishing a place for woman sport at any school that receives any federal money from the elementary to university level. Before the passage of Title IX, many schools had quotas for woman in the areas they were allowed to study, the places they were allowed to study, and the subjects they were allowed to study (including complete bans from “male” areas such as medicine). Even if a woman gained access to a restricted program she might not have been allowed to stay if she got married or became pregnant. A woman in medical school in 1960 would often have a curfew placed on her and a requirement that she live in a particular dorm and only be allowed into certain residencies.
How does Title IX relate to sexual assault allegations?
Title IX also makes schools responsible for taking steps to prevent sex-based harassment, including sexual harassment, and for responding quickly and effectively to harassment when it occurs. What this means has varied since the act’s inception, however. With increasing pressure stemming from recent sex-abuse scandals, schools have stepped up their response to sex allegations. The previous Presidential Administration decided to give more guidance and wrote what has become to be known as the “Dear Colleague” letter which spelled out a school’s obligations once a claim of sexual violence has been made:
Once a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate action to investigate or otherwise determine what occurred.
If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation such as issuing a no contact order.
A school must provide a grievance procedure for students to file complaints of sex discrimination, including complaints of sexual violence and sexual assault.
These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
A school must notify both parties of the outcome of the complaint.
Due to the Obama administrations guidelines, many schools now provide very few protections for the accused. Once an accusation has been made, a school must investigate the claim. However, because the standard is currently one of “a preponderance of the evidence,” a school will sustain a claim (find the student responsible) if it is decided that “there is greater than fifty percent chance that the proposition is true.” Although schools will permit the accused to have an attorney present during the various stages of the investigation, many schools do not provide any sort of trial, hearing, or opportunity to cross-examine the accuser. Instead, an investigator retained by the school will often interview the parties, review any evidence, speak with some potential witnesses, and then make a finding as to whether a sexual assault has occurred. The investigator’s decision is usually not subject to challenge - meaning if the investigator has found that the accused is responsible, the school will not offer any type of appeal of the investigator’s factual findings.
The investigator’s decision may have permanent consequences for the accused. With very little due process, someone accused of sexual harassment or sexual violence could lose the right to their transcripts and the right to graduate. Even if the accused is permitted to graduate, the accused’s transcripts may contain an indicating that the accused was found responsible for an allegation of sexual assault.
Even worse, academic institutions use the natural inclination we all have to clear our names to endanger the accused with respect to potential criminal charges. Because a student who declines to make a statement or participate in this process will typically be found responsible, a student must choose between waiving his or her Fifth Amendment right to remain silent and losing the education for which the student has paid in time and money. Thus, the students accused of sexual misconduct will often make statements to their school in an effort to “clear their name,” but these statements are fair game to any police agency that may wish to investigate the charges levied by the student’s accuser.
One would think, given the many horrific miscarriages of justice in similar situations, schools would know to be careful, but the schools and the Department of Education appear to have learned nothing:
· Rolling Stone to Pay $1.65 Million to Fraternity Over Discredited Rape Story
· College student gets 1 year in prison for false rape accusation
· 60 Minutes investigates: The Duke rape case
· Exonerated of rape, Brian Banks now realizing NFL dream – in different capacity
How can a Title IX defense attorney help?
The current process gives very little thought to the rights of the accused. For that reason, anyone accused of sexual misconduct should not attempt to go it alone. Nor should they allow any kind of embarrassment they may feel to silence them. Someone accused in this sort of sexual misconduct must reach out to an attorney as quickly as possible. An attorney who has previously represented other defendants at one of these hearings can best guide the accused in how to defend themselves. The first days following an accusation are among the most important and if you have been informed you are under investigation, there are certain steps that must happen as quickly as possible. An experienced defense attorney may be able to help you with the following things:
Preparing to give a statement to the school’s Title IX Investigator
Reviewing and editing written submissions which may be required as part of the investigation
Conducting a thorough investigation into the allegations, including locating third-party witnesses and obtaining witness statements
Obtaining and preserving digital and social media evidence such as text messages, Facebook posts
Providing advice on how to avoid criminal charges while responding to the allegations
Helping you to understand the school’s procedures for the investigation and potential appeals and making sure that you understand all of your rights
Facing criminal charges or under investigation?
Goldstein Mehta LLC Criminal Defense Attorneys
If you are facing criminal charges or under investigation by the police or campus authorities, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We also have extensive experience defending clients against allegations of sexual misconduct in Title IX investigations. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted 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.
We can help with Title IX investigations at the following universities and more:
Bryn Mawr College
Cabrini University
Chestnut Hill College
Drexel University
Eastern University,
Holy Family University
La Salle University
Pierce College
Philadelphia College of Osteopathic Medicine (PCOM)
Rosemont College, St. Joseph's University
Temple University
Thomas Jefferson University
University Of Pennsylvania
University Of The Arts
University Of The Sciences
Villanova University
West Chester University
Widener University
