Philadelphia Criminal Defense Blog
Third Circuit Overturns PA Murder Conviction Due To Prosecutor’s Knowing Use Of Perjured Testimony
Prosecutors May Not Knowingly Introduce Perjured Testimony
Federal and state courts have previously held that prosecutors may not knowingly use perjured testimony or knowingly allow perjured testimony to go uncorrected. However, the standard of review on appeal and in post-conviction proceedings has not always been clear. In Haskell v. Superintendent Greene SCI, et al, the federal Third Circuit Court of Appeals has ruled that the knowing use of perjured testimony by the prosecution in a state criminal trial may lead to the reversal of a conviction in habeas litigation. In order to obtain relief, the defendant must show a reasonable likelihood that the perjured testimony affected the judgment of the jury.
Prosecutors charged Haskell with murder after a gunman shot and killed a man in a bar in Erie, Pennsylvania in December 1994. The primary issue at trial was whether authorities correctly identified Haskell as the gunman. In addition to some circumstantial evidence linking Haskell to the crime, the Commonwealth also presented four alleged eyewitnesses who claimed that Haskell was the shooter. Three of them had significant problems with their testimony. One witness recanted on the stand and testified he had identified Haskell solely in the hopes of getting out of jail on his own unrelated case, and two others denied being able to identify the shooter in earlier statements given to the police. Therefore, the testimony of the fourth eyewitness was important.
The fourth eyewitness consistently testified that Haskell was the shooter. However, she had a number of legal problems of her own. In addition to facing a parole violation in Erie County, she was also in jail on Simple Assault charges. In addition to her Erie County legal problems, she also faced numerous theft charges in Mercer County. She testified that she smoked marijuana with Haskell shortly before the shooting and witnessed him committing the crime. At the preliminary hearing, she denied having any pending charges and insisted that she was in custody solely due to the parole violation. She also insisted that she had not discussed cooperation with the prosecution. She stuck to that story at trial, again insisting that she was in jail for a parole violation and that she did not expect to receive anything in exchange for her testimony.
Of course, that was a lie. The detectives and prosecutors in Erie helped her with her pending charges both before her testimony at trial and afterwards. They wrote letters to the judges in her cases as well as the prosecutors in Mercer County, and the witness was eventually released with a suspended sentence due to the fact that she cooperated by testifying in a homicide. Despite knowing that the witness perjured herself by denying any cooperation or anticipated benefit, the prosecutor actually argued during closing argument that it was ridiculous to think she would receive any personal benefit from testifying against the defendant. That prosecutor then sent a letter to the judge in Mercer County explaining the importance of her testimony in the homicide.
Based on the circumstantial evidence and the testimony of the four witnesses, Haskell was convicted and sentenced to life in jail. He initially filed a Post-Conviction Relief Act Petition alleging that the fourth witness’s perjured testimony violated his right to due process. The state court dismissed the PCRA, finding that it was time-barred. He then filed a habeas corpus petition in federal court, and the Commonwealth conceded that the claim was not in fact time barred. The federal District Court held that the testimony was false and the prosecution knew or should have known it was false. However, the District Court denied the habeas petition, finding that the testimony would not have had a substantial effect on the jury’s verdict. Haskell appealed.
The Third Circuit Court of Appeals reversed the District Court. The Third Circuit recognized that a state violates the Fourteenth Amendment’s due process guarantee when it knowingly presents or fails to correct false testimony in a criminal proceeding. Consequently, the Supreme Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Likewise, the same result must occur when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. A conviction must be set aside even if the false testimony goes only to a witness’s credibility rather than the defendant’s guilt.
Accordingly, the Third Circuit recognized that in order to establish his claim, Haskell must have shown that
the fourth eyewitness committed perjury,
the Commonwealth knew or should have known that the testimony was false,
the false testimony was not corrected,
there is a reasonable likelihood that the perjured testimony could have affected the judgment of the jury.
The Third Circuit held that Haskell established all four prongs of this test. First, it was uncontested that the eyewitness had lied about not receiving favorable treatment in exchange for cooperation. Second, the Commonwealth knew about it because the prosecutors involved actually obtained that favorable treatment for her. Third, the prosecution failed to correct the perjured testimony and instead argued that it was ridiculous to believe she would receive any benefit. Finally, there is a reasonable likelihood that the false testimony could have affected the verdict. The Court noted that she was a key witness because all of the other witnesses had significant problems with their testimony. They either recanted or had given prior inconsistent statements in which they denied being able to identify the shooter. It was only the fourth eyewitness who claimed to know Haskell before the shooting and that she could therefore definitively identify him. Because her testimony was central to the case, the Court held that her perjured testimony posed a reasonable, and significant likelihood of affecting the verdict. Therefore, the Third Circuit reversed Haskell’s conviction.
Haskell should put prosecutors throughout the Third Circuit on notice of both their pre-trial discovery obligations and their duty to correct perjured testimony when they know about it. Every criminal defendant has a constitutional right to due process, and due process includes the right to a fair trial. It is impossible to have a fair trial when the prosecution is willing to introduce testimony that it knows to be false, and prosecutors simply may not hide exculpatory evidence from the defense.
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If you are facing criminal charges or are interested in appealing a conviction, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully resolved countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.
PA Superior Court: Defendant Entitled to New Trial Where Instructions Permitted Jury to Find Aggravated Assault on Officer Based on Mens Rea of Recklessness
The Difference Between Aggravated Assault and Simple Assault on Law Enforcement
There is a common misconception in Pennsylvania courts that a Simple Assault on a police officer, medical professional, or other protected class who is acting in the course of their official duties automatically becomes a felony two Aggravated Assault due to the Aggravated Assault on law enforcement statute. In normal circumstances, Aggravated Assault as a first-degree felony requires that the defendant cause or attempt to cause serious bodily injury to the complainant. Aggravated Assault may also be a second degree felony either when the defendant causes or attempts to cause bodily injury with a deadly weapon or when the defendant causes or attempts to cause bodily injury to a member of a protected class. Protected classes under the F2 Aggravated Assault statute include most forms of law enforcement officers, paramedics, nurses, SEPTA employees, prosecutors, public defenders, judges, and other government officials who are acting in the course of their official duties. Thus, punching a police officer is often going to be an F2 Aggravated Assault instead of a Simple Assault. This assumes that the officer was on duty at the time of the punch.
Demetra Mehta, Esq. - Philadelphia Criminal Lawyer
In the case of an obvious punch or a kick to an officer, a criminal defendant may be properly charged with Aggravated Assault as a felony of the second degree. However, where the intent to cause bodily injury is less clear – such as in the case of a defendant who is resisting, fleeing, flailing, and just otherwise being difficult and ends up elbowing or bumping into an officer, the defendant’s actions may not constitute an Aggravated Assault. This is because the F2 Aggravated Assault on law enforcement statute requires that the defendant act either knowingly or intentionally to cause or attempt to cause bodily injury. The Aggravated Assault statute is more limited than the Simple Assault statute because the Simple Assault statute can be violated when the defendant acts recklessly. This means that it could be Simple Assault to elbow a police officer while flailing about and resisting arrest instead of a felony Aggravated Assault. Of course, we still do not recommend that you resist arrest or do anything that could be construed as an assault on an officer.
Commonwealth v. Domek
Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Lawyer
In the recent case of Commonwealth v. Domek, the Pennsylvania Superior Court granted a new trial to the defendant, finding that the trial court had improperly dismissed his Post-Conviction Relief Act (“PCRA”) Petition. Domek’s PCRA Petition alleged that his trial attorney had been ineffective in failing to object when the trial court instructed the jury that Domek could be convicted of F2 Aggravated Assault on law enforcement if the jury found that he recklessly caused bodily injury.
In Domek, police transported the defendant to the Allegheny County jail. When the defendant arrived, he refused to cooperate with a search of his mouth and began to yell profanity at the correctional officers. Officers repeatedly warned him that they would use force to open his mouth, and he continued resisting. When one of the officers reached towards his mouth, the defendant smacked her hand away. At that point, the officers began struggling with the defendant. One of them punched him, and they took him to the ground. Once on the ground, he refused to put his hands behind his back, and the officers eventually tazed him. Officers testified at trial that the defendant had tried to push and punch the officers. Additionally, one of the officers suffered a shoulder injury which required surgery and led to missing ten months of work.
F2 Aggravated Assault Requires Knowing or Intentional Conduct
A jury convicted the defendant of F2 Aggravated Assault, and the defendant appealed. The Pennsylvania Superior Court affirmed the conviction, and the defendant did not appeal to the Pennsylvania Supreme Court. Instead, within one year of the conviction becoming final, he filed a Post-Conviction Relief Act Petition alleging that trial counsel had been ineffective for failing to object to the erroneous jury instruction. Generally, a PCRA allows a defendant who has been convicted and is still serving a sentence to seek a new trial or new sentencing where the defendant can show that his or her lawyer was ineffective in the representation at trial or on appeal and that the defendant suffered prejudice as a result.
In this case, the trial court dismissed the PCRA as meritless. However, the defendant appealed the dismissal of the PCRA to the Superior Court. The Superior Court reversed, finding that the jury instructions were erroneous in that they specifically permitted the jury to find that if the defendant had caused the injury recklessly, the jury could convict him of Aggravated Assault instead of Simply Assault. Because Aggravated Assault requires a defendant to have acted knowingly or intentionally, this instruction was not correct.
The trial court had agreed that the instruction contained an error, but the court argued that the evidence was overwhelming that the defendant committed an Aggravated Assault. Therefore, the trial court adopted the prosecution’s position and dismissed the PCRA. The Superior Court disagreed. It found that “the inclusion of an erroneous mens rea reducing the level of culpability required to find Appellant guilty of aggravated assault was a critical mistake that ‘could have reasonably had an adverse impact on the outcome of the proceedings.’” Given that the jury acquitted the defendant of an offense that required the knowing or intentional causation of injury, the Court found that it was very possible the jury convicted based on the recklessness jury instruction. Further, the injured officer testified at trial that she suffered the injury when the defendant fell backwards onto her, which is potentially consistent with recklessness. Therefore, because the issue raised a question of law, the Court reversed the conviction for F2 Aggravated Assault and remanded the case for trial.
Domek illustrates the difference between Simple Assault and Aggravated Assault, and it also provides an example of the type of claim that can be raised in a Post-Conviction Relief Act Petition. A PCRA Petition alleging ineffectiveness of counsel allows the defendant to seek relief in the form of a new trial where the defendant's lawyer was ineffective. Had the defendant's trial lawyer recognized the differences between the statutes and made a timely objection, the trial court likely would have realized that the instruction was incorrect and instructed the jury properly. In that case, the jury may very well have acquitted the defendant of felony Aggravated Assault. Therefore, the PCRA Petition was the proper place to raise this type of claim.
Philadelphia Criminal Defense Lawyers for Assault Charges and PCRA Petition
Goldstein Mehta LLC Philadelphia Criminal Defense Attorneys
If you are facing criminal charges or are interested in appealing a conviction, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully resolved countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.
Pa Superior Court Finds Merely Paying Witness Not to Testify Does Not Qualify as Witness Intimidation
Witness Intimidation Charges in Pennsylvania
Witness intimidation is a significant problem in criminal court and in Philadelphia specifically. Potential witnesses in criminal cases are often afraid that they could be threatened or harmed for testifying against someone, and that includes witnesses for both the prosecution and defense. For this reason, witness intimidation may be punished very severely upon conviction.
Under Pennsylvania law, a defendant is guilty of Intimidation of Witnesses if, "with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to . . . [a]bsent himself from any proceeding or investigation to which he has been legally summoned." 18 Pa.C.S. § 4952(a)(6).
Does paying a witness not to testify count as witness intimidation?
Given the broad language of the statute, an issue arises when the defendant attempts to pay a witness not to show up to court but the offer of payment is not accompanied by any threats. In Commonwealth v. Evans, the Pennsylvania Superior Court held that a defendant may not be convicted of Witness Intimidation solely for offering to pay or paying a witness not to testify. Instead, there must be some evidence in the record beyond mere speculation that the defendant intended to intimidate the witness. In other words, the offer to pay must at least contain an implied threat that if the witness does not accept the money, there could be consequences.
In Evans, the Appellant was charged with rape and related offenses. While he was incarcerated pending trial, he asked his girlfriend to contact the complainant and offer to pay her not to testify. His girlfriend attempted to call the complainant a number of times, but she was never successful in reaching her. The Commonwealth found out about the Appellant’s activities (likely because prison phone calls are recorded!), and they charged him with Intimidation, Conspiracy, and Solicitation to Commit Witness Intimidation. Following a stipulated bench trial, Appellant was convicted of Solicitation to Commit Witness Intimidation and sentenced to 3.5-10 years consecutive to the 40-80 years he received when he was eventually convicted in the Rape case. Additionally, Appellant’s attempt to pay the complainant was used against him as evidence of a guilty conscience in the Rape trial.
On appeal, the Superior Court reversed Evans’ conviction for Solicitation to Commit Witness Intimidation. The Superior Court noted that in order for the conviction to be upheld, the evidence would have had to show that Evans solicited someone else to commit the crime of Witness Intimidation. A defendant is guilty of Criminal Solicitation to commit a crime if: “with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.” 18 Pa.C.S. § 902(a).
The Superior Court reversed Evans’ conviction for Solicitation because there was no evidence in the record from which the trial judge could have concluded that Evans intended to do anything other than have his girlfriend pay the complainant not to testify. Although he had clearly solicited his girlfriend to do something, he had not solicited her to commit the specific crime of witness intimidation because there was nothing intimidating about the mere offer of money.
Under certain circumstances, there may be other evidence in the record to suggest that an offer of money may amount to witness intimidation. For example, in the case of Commonwealth v. Doughty, the Pennsylvania Supreme Court upheld a witness intimidation conviction that stemmed from a defendant’s offer to pay his wife not to testify where there was other evidence that the defendant intimidated the wife. In that case, the defendant had a history of threatening his wife with violence and had also expressed strong invective when he made the offer to pay. Therefore, the jury could properly convict the defendant of witness intimidation.
In Evans, however, the Appellant had not done anything other than ask his girlfriend to offer money to the complainant. Therefore, it was complete speculation for the trial judge to conclude that the complainant would be intimidated based solely on the nature of the allegations in the rape case. The Superior Court noted that there was no evidence of a history of violent interactions between the Appellant and the victim and no invective conversation making the pecuniary offer to the victim. Instead, the only evidence was Appellant’s request that his girlfriend offer money. Because the word “intimidate” involves some sort of attempt to cause fear, simply offering money does not qualify as intimidation, and the Superior Court reversed Evans’ conviction.
Although Evans will receive a slight reduction in his overall sentence due to the technical elements of the Witness Intimidation statute, we must caution that it is still not a good idea to offer to pay witnesses not to show up. There are likely other charges which the Commonwealth could bring in this type of situation but had overlooked in this case, and the attempt to pay would constitute extremely damaging evidence of a consciousness of guilt at trial. However, it is clear from the court’s opinion that simply offering to pay someone not to come to court does not meet the elements of Pennsylvania’s Witness Intimidation statute.
OUR PHILADELPHIA CRIMINAL LAWYERS CAN HELP IN WITNESS INTIMIDATION CASES
If you or a loved one are facing criminal charges in Pennsylvania or New Jersey, you need the services of an experienced criminal defense attorney. Our Philadelphia criminal defense lawyers offer a free 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with us today.
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Is Mace a Deadly Weapon Under the Aggravated Assault Statute?
Aggravated Assault with a Deadly Weapon in Pennsylvania
An issue that frequently comes up in Aggravated Assault prosecutions is whether or not the defendant used a deadly weapon in the commission of an assault that resulted in bodily injury. In cases where the defendant is charged with attempting to cause or knowingly or intentionally causing bodily injury, the Commonwealth may seek a conviction for Aggravated Assault as a felony of the second degree instead of Simple Assault if the Commonwealth can also show that the defendant used a deadly weapon in the commission of the offense.
Bodily injury is defined as "impairment of physical condition or substantial pain," and a deadly weapon is defined as "any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." In cases involving a knife or a gun, it is relatively simple for the Commonwealth to show that a deadly weapon was involved for purposes of the Aggravated Assault (F2) statute because those weapons are clearly identified in the statute. There may be other potential defenses, but it will likely not be a defense that the weapon involved was not deadly.
what is a deadly weapon in pennsylvania?
However, when the defendant is alleged to have used some sort of non-traditional weapon, the issue becomes much more complicated because any object can become a deadly weapon depending on how it is used. Under the statute, if the object is used or intended to be used in a manner calculated or likely to produce death or serious bodily injury, then the object could qualify as a deadly weapon even if it is not something that would normally be thought of as a weapon. Accordingly, appellate courts have found that even such seemingly harmless objects as eggs can be deadly weapons if the eggs are thrown at moving cars. In that scenario, an egg could be a deadly weapon because the manner in which the egg was used could lead to a car accident which could produce or serious bodily injury.
IS MACE A DEADLY WEAPON?
Recently, in Commonwealth v. Chambers, the Pennsylvania Superior Court concluded that mace (pepper spray) could qualify as a deadly weapon under the statute depending on how it is used. In Chambers, the defendant was convicted for Aggravated Assault. The trial court found that Chambers had engaged in a fight with the complainant, and during the fight, a co-conspirator sprayed the complainant with pepper spray. Chambers and a number of other people continued to punch and kick the complainant, leaving the complainant with a concussion, lacerations which required stitches, a burnt retina in his eye, and some broken bones. The trial court found Chambers guilty of Aggravated Assault with a deadly weapon on the theories of co-conspirator and accomplice liability because one of Chambers co-defendants used the mace. Chambers appealed, arguing that the mace did not constitute a deadly weapon because it is "an instrument which is not inherently a deadly weapon" and because the Commonwealth did not present any evidence regarding the chemical composition of the mace.
The Superior Court rejected Chambers argument. The court accepted the trial court's conclusion that even if the mace was not inherently a deadly weapon, it became a deadly weapon because of the manner in which it was used against the complainant. Although mace may not cause permanent injuries on its own, the mace in Chambers was used to incapacitate the complainant so that the group could continue to beat him and cause more serious injuries. Therefore, the mace was used in a manner which made it more likely that the complainant would suffer death or serious bodily injury because he could not defend himself from the ongoing assault.
Therefore, depending on the circumstances, an item like mace may or may not be a deadly weapon for purposes of the Aggravated Assault statute. If the defendant simply sprays mace in the complainant's eyes and the complainant does not suffer serious bodily injury and there is no further assault, then the mace may not be a deadly weapon. If the mace is used to incapacitate the complainant so that the complainant can be injured, then the mace may qualify as a deadly weapon.
WHAT IS serious bodily injury?
In cases involving "serious bodily injury," the defendant will typically be charged with Aggravated Assault as a felony of the first degree, and whether or not the defendant used a deadly weapon will not be as relevant. However, it could still be relevant at sentencing because there are sentencing enhancements when a deadly weapon is used or possessed during the comission of an offense. Serious bodily injury is defined by the Pennsylvania Crimes Code as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Therefore, serious bodily injury is typically going to involve things like broken bones, brain damage, organ failure, shootings, and stabbings. In other words, serious bodily injury involves permanent or at least lasting damage.
HOW OUR PHILADELPHIA ASSAULT LAWYERS CAN HELP
Regardless of whether the defendant is charged with Aggravated Assault as a felony of the first or second degree, Aggravated Assault is an extremely serious charge. Our Philadelphia assault lawyers have successfully defended many clients charged with all types of assault. The most important thing to do if you are facing assault charges is to act quickly. Do not delay and allow valuable evidence and witnesses to be lost. Video surveillance may often start to be deleted in as little as 24 hours. If you are charged with any type of assault in Philadelphia or the surrounding counties, call the Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC at 267-225-2545 for a complimentary 15-minute criminal defense strategy session.
Philadelphia Assault Lawyers