Philadelphia Criminal Defense Blog

Zak Goldstein 1/2/24 Zak Goldstein 1/2/24

PA Superior Court: Trial Judge May Ask Each Potential Juror if They Would Be Able to Convict Based on Complainant’s Testimony Alone

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Walker. The Court held that a trial court may allow prospective jurors to be asked, during the voir dire process in a sexual assault case, if they could follow the legal principle that the testimony of an alleged victim standing alone, if believed, is sufficient proof to find the defendant guilty beyond a reasonable doubt. Jurors often receive an instruction similar to the question prior to deliberations, and many judges routinely ask this question prior to trial. However, this is the first time an appellate court in Pennsylvania has specifically held that it is appropriate for the trial judge to question each juror on whether they’d be able to follow that instruction, which reminds them that no evidence other than someone’s statement is required to convict, as part of jury selection.

The Facts of Walker

The complainant, who was eighteen-years old at the time of the trial, testified that in 2013, her mother was dating the defendant. The defendant would babysit the complainant and her infant sister while their mom was at work. She testified that the defendant would come into her room and sexually assault her. The defendant did this every other day. The victim told her mother and grandmothers. She also told her doctor. Her doctor tested her for STDs, and the test was positive. The complainant’s mother did not believe her and became angry with her. The complainant also disclosed to one of her teachers when she was sixteen years old.

The complainant testified that she remembered participating in a forensic interview, and she claimed at trial she had told the interviewer about the abuse. The defense played the video of the interview, however, and it showed that she had actually denied that the abuse occurred. After being confronted with that inconsistency, she insisted that she did not disclose the abuse at the time because she was afraid.

The complainant’s grandmother and her high school teacher also testified that the complainant disclosed the abuse to them.

Prosecutors charged the defendant with various sex crimes in 2019. He proceeded by way of jury trial and was found guilty. The trial court sentenced him to 30.5 - 61 years’ incarceration. He appealed.

The Superior Court Appeal

On appeal, the defendant challenged the jury selection process. Specifically, the court asked each juror the following:

Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?

The defendant argued that this question was improper. It conditioned the jurors to find him guilty without any other evidence other than the complainant’s testimony that he committed a sexual offense.

The Superior Court’s Decision

The Superior Court rejected this claim on appeal. It ruled the question was proper and trial courts have broad discretion when conducting voir dire. The Court disagreed with the defendant as to the purpose of the question. The Court found the question was aimed at identifying potential jurors who held fixed beliefs that would not be compatible with Pennsylvania law if they were unable to set aside those beliefs. The Court also found the question to be phrased properly as it identified the beyond a reasonable doubt standard as well as language from the statutory provision codifying the principle of law that oral testimony is almost always enough to convict if a crime so long as the testimony is believed by the jurors beyond a reasonable doubt. Further, the Court found that any issue with the voir dire question was cured by the trial court’s instructions explaining that the Commonwealth had the burden of proving each and every element of the crimes charged beyond a reasonable doubt.

Therefore, the Superior Court denied the appeal. It also ruled that the trial court properly sentenced the defendant, did not consider any improper factors during sentencing, and did not impose an excessive sentence.

This jury instruction is tough for the defense. Jurors do not have to convict in the absence of any corroborating evidence, but Pennsylvania law is very clear that they may convict based on testimony alone so long as they believe the testimony beyond a reasonable doubt. Many potential jurors are surprised to learn this and express that surprise when asked this question even if they believe they would be able to follow the instruction. The prosecution is then easily able to strike those potential jurors from the panel, making it more difficult for the defense to get jurors who would want to see some corroborating evidence before convicting based on oral testimony. It is important for the defense to follow up during jury selection or arguments and stress that jurors never have to convict based solely on testimony. They are free to disbelieve the testimony, and if they’re on the fence, they are free to insist on more evidence. The Superior Court, however, has now approved of asking each juror this question during jury selection.

Facing criminal charges or appealing a criminal case in PA? We can help.

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

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, including 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 11/3/23 Zak Goldstein 11/3/23

PA Superior Court: Sex with Unconscious Person Not Sufficient Evidence for Rape by Forcible Compulsion Conviction

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

The Superior Court of Pennsylvania has decided the case of Commonwealth v. Banniger, holding that evidence that a defendant had intercourse with an unconscious person, without more, is insufficient to prove the “forcible compulsion” element in a rape or involuntary deviate sexual intercourse (“IDSI”) case where the prosecution has proceeded under the forcible compulsion subsection of either statute.

The Facts of Banniger

In Banniger, the complainant testified that when she was 15 years old, the adult defendant gave her marijuana, and she would smoke with the defendant while they were alone in the house. The defendant told her that he liked her and wanted to be with her. The victim told the defendant to stop. Shortly after that, the victim went to her room to lie down. She testified that on two occasions she was sexually assaulted by the defendant.

For the first incident, the complainant testified she awoke in her aunt’s room with her shorts pulled to the side, the defendant’s head between her legs, and with his tongue on and inside her vagina. She did not testify that she was frozen with fear, nor did she say how long the defendant continued or how the incident ended.

She testified that for the second incident, she woke up in her grandmother’s room. Her clothes were again pushed to the side and the defendant’s tongue was inside of her vagina. The defendant then pulled her pants off and inserted his penis into her vagina. The complainant, frozen in fear, just let it happen as she did not know what else to do. She then fought the defendant off because he was being forceful. The complainant ran into another room. She later told her older sister about the incident.

Following a non-jury trial, the judge found the defendant guilty of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, unlawful contact with a minor, statutory sexual assault, corruption of a minor, indecent assault of a person less than 13 years of age, involuntary deviate sexual intercourse of an unconscious person, and sexual assault. The trial court sentenced the defendant to an aggregate term of 14-34 years’ incarceration followed by three years’ reporting probation. The defendant filed a post-sentence motion. The court denied it, and the defendant appealed to the Pennsylvania Superior Court.

The Superior Court Appeal

On appeal, the defendant challenged the sufficiency of the evidence supporting the rape and IDSI - forcible compulsion convictions, arguing that he did not use force because the complainant testified that she was asleep and woke up to the sexual assaults. Both statutes have different sections that apply to the sexual assault of an unconscious person, so the defendant argued that he should have been charged under those sections rather than with forcible compulsion.

The Superior Court agreed with the general idea that the rape of a person who is asleep does not amount to forcible compulsion but affirmed the convictions nonetheless. The court reasoned that in sexual cases, the object of the force is to compel a person to engage in sexual intercourse against that person’s will. They continued that “forcible compulsion” depends on a totality of circumstances, providing a non-exhaustive list of factors to consider including age of the victim and the defendant, mental and physical conditions of the complainant and the defendant, atmosphere and physical setting in which incident took place, and whether the complainant was under duress. Ultimately, the court recognized that each case turns on its own specific facts.

Force, however, does not necessarily require resistance from the complainant. Instead, the question is whether the defendant’s physical, intellectual, moral, emotional, or psychological force compelled the complainant to submit to intercourse against their will.

The court noted that while consent will negate finding forcible compulsion, forcible compulsion requires more than a mere lack of consent. Where lack of consent exists, but no showing of either physical force, a threat of physical force, or psychological coercion can be established, forcible compulsion does not exist.

Although an unconscious victim may not consent, not every person who has intercourse with an unconscious victim does so by forcible compulsion. Noting that while the factor involving a victim’s physical condition includes evaluating a lack of consciousness, that is only one circumstance to be considered under the totality test for forcible compulsion.

Accordingly, the court held that the mere act of intercourse with an unconscious person does not prove forcible compulsion. It may well violate other statutes, but it does not violate the specific statutes with which the defendant was charged.

The court, however, affirmed the conviction because it found that the complainant was not actually asleep for the entirety of both sexual assaults. With respect to the second incident, she testified that she woke up and was then frozen with fear as the abuse progressed. At first, she let it happen and did not resist because she was frozen with fear and did not know how to respond. She eventually fought the defendant off. Thus, under the totality of the circumstances, including the extended familial relationship, the use of marijuana, her initial unconsciousness, and her fear of the defendant’s response if she resisted, the Commonwealth proved forcible compulsion. The court therefore affirmed the conviction.

The Take away

Although things did not work out for this particular defendant, this is a pretty good opinion from the Superior Court in terms of analyzing the statute and reaching a logical conclusion. As the statute says, Rape or IDSI by forcible compulsion requires some level of actual force - psychological, physical, or otherwise, in order for the statute to apply. The elements are not met simply because penetration occurred without consent. Instead, that is essentially the definition of the somewhat less serious charge of sexual assault as a felony of the second degree. Therefore, sexual intercourse with someone who is totally unconscious or asleep is generally not going to be rape or IDSI by forcible compulsion. The problem for this defendant, however, is that the complainant testified that she was not totally asleep for the entirety of the incident and that she had other reasons for not resisting.

When fighting any case, it is important that the defense attorney be familiar with the elements of the statute. The attorney should never assume that the Commonwealth has charged the right statute or subsection of a statute. In many cases, the defense to criminal charges may be a legal one rather than a factual one, and a legal one that ends in an acquittal is just as good as a factual one that ends in an acquittal.

Facing criminal charges or appealing a criminal conviction?

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

Zak Goldstein 10/19/23 Zak Goldstein 10/19/23

PA Superior Court: Prison Sentence Okay For Adult Charged With Crimes Committed Decade Ago When Juvenile

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Torres, upholding the defendant’s convictions and lengthy prison sentence for rape of a child and related charges even though the defendant committed the crimes while he was a juvenile himself. In this case, the Superior Court approved of a long jail sentence for a defendant who committed serious sex crimes when he was a juvenile but was not arrested and charged until years later when he was an adult.

Had the defendant been prosecuted when the crimes happened, he would have been prosecuted in family court and likely received a year or two in a treatment facility. But because he was not prosecuted until a decade later, he was charged an adult, and he received a sentence of 19 - 40 years’ incarceration. This is obviously an absurd result, and the defendant will hopefully appeal to the Pennsylvania Supreme Court.

The Facts of Torres

Between June 2008 and March 2011, Torres lived with his mother, four of his younger half-siblings, and his maternal grandmother in Lancaster Township. During that period, he sexually abused three of his half-siblings; his half-sister and two half-brothers. At the time of the offense, the three children were between the ages of two-and-a-half and six years old, and Torres was between the ages of 13 to 15. He was often left in charge of his younger half siblings because their mother was working sixteen hour days to support their family.

The half-sister reported that Torres would make her go to his bedroom and digitally penetrate her vagina, force her to perform oral sex on him, force her to swallow his ejaculate, and force her to have sex with him. In May 2009, she told her mother, and her mother called the police. The half-sister was interviewed by Lancaster County Children’s Alliance, but she did not tell the interviewer about the abuse. The other half-siblings were not interviewed at the time, and no charges were filed.

Almost nine years later, in March 2018, the half-sister told her parents again that Torres sexually abused her in the past. After this report, Torres’ two younger half-brothers disclosed the abuse they suffered at the hands of Torres. The details are not necessary for reviewing the legal issues, but the abuse was unquestionably horrific.

Although Torres committed these crimes as a juvenile, the Commonwealth filed the charges in 2018 when Torres was 23 years old. Accordingly, prosecutors charged Torres as an adult instead of as a juvenile.

Procedural History

After the prosecution filed charges, Torres filed a motion to dismiss. He claimed that the Commonwealth acted in bad faith by failing to investigate the half-sister’s report and failing to interview the other children in 2009, which led to the adult charges instead of family court charges. He argued that he could not be charged in adult criminal court with offenses he committed as a juvenile and that he should be prosecuted in Family Court under the Juvenile Act. The trial court denied Torres’s motion in November 2020.

A jury convicted Torres of all the sexual offenses after a three-day trial that began on August 23, 2021. The probation department conducted a pre-sentence investigation. Torres appeared for sentencing in 2022, and the trial court sentenced Torres to 19 to 40 years’ incarceration even though he had committed these crimes as a juvenile.

Torres filed a post-sentence motion arguing that the “adult-based sentence” violated his constitutional rights given that the crimes were committed when he was a juvenile and the sentence would have focused on treatment and rehabilitation if he had been charged closer in time to when they occurred. The trial court denied the post-sentence motion, and he appealed.

The Superior Court Appeal

On appeal, Torres first asserted that the trial court violated his due process rights when it denied his motion to dismiss, arguing the nine-year gap between the police report and the filing of charges prejudiced him because he lost the ability to have the charges handled in juvenile court. Next, Torres claimed the adult-based punishment of 19-40 years in prison constituted cruel and unusual punishment because Torres was between the ages of 13 and 15 years old when the crimes were committed. Lastly, Torres claimed the trial court abused its discretion by sentencing him to an aggregate period of 19-40 years’ incarceration.

The Superior Court denied all of Torres’s claims.

In denying Torres’s first claim, the Superior Court based its decision on precedent set in the Pennsylvania Supreme Court’s recent 2023 decision in Commonwealth v. Armolt. There, the Supreme Court rejected the argument that a 42-year-old-male who committed offenses when he was a juvenile should be tried in juvenile court because the Commonwealth’s bad faith in delaying the charges caused him to lose the benefits of juvenile court. The Supreme Court explained that no bad faith existed because, for the purposes of the Juvenile Act, a “child” is defined as someone under the age of 18 or someone under the age of 21 who committed an act of delinquency before reaching the age of 18 years. The Supreme Court found that the Juvenile Act only extends juvenile jurisdiction to those who committed an offense while under the age of 18 if they are prosecuted before they turn 21.

The Superior Court applied the Supreme Court’s reasoning to Torres’s case because he was between 13 and 15 when the offense occurred but 23 when charged, so the Juvenile Act did not apply to him. Because the Juvenile Act did not apply, the Superior Court approved of the trial court’s denial of Torres’s motion to dismiss appropriate.

The Superior Court also rejected his challenge to the sentence. The Superior Court reasoned that the Eighth Amendment’s prohibition against cruel and unusual punishment does not require strict proportionality between the crime committed and the sentence imposed. Instead, the Eighth Amendment forbids extreme sentences that are grossly disproportionate to the crime. The Superior Court opined that most cases where cruel and unusual punishment has been found involved life sentences for juveniles tried as adults. The Court instead explained that Torres was sentenced to 19-40 years in prison and not a life sentence, making those cases inapplicable. Further, the Court decided that because the Juvenile Act did not apply, Torres was not entitled to any special sentencing benefits.

Finally, the Superior Court decided the trial court did not abuse its discretion in imposing a long sentence. The Superior Court noted a sentencing judge has broad discretion because that judge is in the best position to “view the defendant’s character, displays of remorse, defiance, or indifference, and the overall effect and nature of the crime”. The Superior Court further explained that the sentencing court considers the crime’s effect on the victims and community as a whole along with the defendant’s prior record, age, personal characteristics, and potential for rehabilitation. Finally, the Court explained that when a trial court has the benefit of a pre-sentence investigation report, its discretion should not usually be disturbed. Here, the sentencing judge had a pre-sentence investigation and conducted a full hearing. At Torres’s sentencing hearing, the trial court provided a full history of Torres’s life, paying close attention to his upbringing including, the sexual, physical, and emotional abuses Torres himself endured as a child. The Superior Court confirmed that the trial court considered all the proper sentencing factors and found the sentence appropriate, ultimately upholding the sentence.

The decision in Torres clearly illustrates just how much leeway and discretion the prosecution and trial courts have when it comes to criminal cases. Had the Commonwealth prosecuted Torres as a juvenile when the allegations first came to light, while he was under the age of 18, he certainly would have avoided an aggregate 19–40-year sentence and would likely not be under any court supervision at this time. The case also shows the enormous difference between being charged as a juvenile and being charged ten years later as an adult. When charged as a juvenile, the consequences are likely to focus on treatment. But when charged for something old as an adult, even if the defendant has stayed out of trouble for a decade or more, the defendant could face decades in prison. The system is clearly in need of major reform.

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. 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.

Zak Goldstein 9/26/23 Zak Goldstein 9/26/23

Not Guilty: Attorney Goldstein Obtains Full Acquittal in Rape Case

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal in a rape case. In Commonwealth v. P.S., the defendant was charged in Philadelphia with rape of a child and related charges for allegedly assaulting his biological daughter. According to the complainant, the assaults began when she was between the ages of 3 - 5 and continued until she was about 13 or 14. She did not report them until she was around 16, but prosecutors arrested P.S. and charged him with a number of sex crimes.

P.S. retained Attorney Goldstein to defend against the allegations. Attorney Goldstein investigated the case, obtained discovery from the District Attorney’s Office, and learned that the complainant’s mother, from whom the client had separated shortly before the allegations were first made in Family Court, had been claiming that P.S. assaulted the complainant for years. Attorney Goldstein investigated further and obtained family court transcripts which showed that the complainant had told judges that the assaults did not actually happen and that there was a lengthy history of litigation over child custody and child support. The family court records showed that the complainant’s mother had made these unfounded allegations supposedly on behalf of her daughter anytime she wanted to deny P.S. from having custody, but she had continued to let him see her and had never gone to the police. This behavior obviously did not make sense if the mother believed that child abuse was actually occurring.

P.S. proceeded to trial before a judge in the Philadelphia Court of Common Pleas. The complainant testified that P.S. assaulted her, but her testimony differed wildly from what she had told social workers in a videotaped interview which took place at the Philadelphia Children’s Alliance. Through cross-examination, Attorney Goldstein was able to show that P.S.’s story had changed repeatedly, she had previously told a judge that the assaults did not actually happen, all of her medical exams had been totally normal, and her mom had been telling her that her father had molested her since she was about three years old. Finally, when the complainant’s mother testified, it quickly became clear that she had fabricated the allegations by insisting that these horrible things happened only after she began suing P.S. for child custody and child support.

The trial judge promptly acquitted P.S. at the end of the one day waiver trial. The judge found that the allegations were fabricated and that the complainant’s mother had essentially traumatized her daughter and put her up to making the allegations. Instead of facing decades in prison and a lifetime of Megan’s Law registration, P.S. has now been found not guilty and will be eligible to have the charges expunged.

Allegations of child abuse and child sexual assault are among the most serious possible charges and the most difficult to defend. Judges and juries often have a difficult time believing that children could lie about something so horrible. Fortunately, our attorneys are experienced in investigating these cases and cross-examining the complainants and witnesses in order to effectively fight back against false charges. We have won many of these cases at preliminary hearings, at trial, on appeal, and in PCRA litigation.

Facing criminal charges? We can help.

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.