PA Superior Court: Commonwealth May Not Rebut Claim of Self-Defense by Showing Defendant Has Prior Conviction for Violent Offense

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court just announced its decision in Commonwealth v. Crosley, holding that the Commonwealth cannot use a defendant’s prior conviction for a violent offense in order to rebut a defendant’s claim that the complainant was a violent person who started the altercation. Instead, testimony to this effect by a criminal defendant in an assault or homicide trial would open the door only to evidence of the defendant’s reputation for violence. This decision limits the Commonwealth’s ability to rebut claims of self-defense in that the Commonwealth may not tell a judge or jury that the defendant has a prior conviction for assault or some other violent crime.

Commonwealth v. Crosley

This case had an unusual set of the facts. It is unclear how the defendant and the decedent met, but at some point the decedent gave the defendant permission to live in his shed. The defendant was not allowed inside the house without permission. When it was cold, the decedent would permit the defendant to live in the basement of the house. Additionally, the decedent was married and had a child living at the residence.

Eventually, the decedent’s wife tired of this arrangement. She wanted the defendant off of the property, so the decedent went and told the defendant that he would have to move out. The decedent’s wife testified that the decedent was unarmed when he went to speak with the defendant.

While she was in the shower, the decedent’s wife heard what she believed to be a gun shot. She instructed her daughter to go check on the decedent. The daughter then went to the basement where she observed the decedent and the defendant struggling for a gun. Upon seeing this, the daughter ran upstairs and told her mother what she saw. The decedent’s wife then went to her window where she observed the defendant chasing the victim and shooting at him. She yelled at the defendant to stop, and the defendant replied that the decedent “takes me for a fool.”  The wife went outside and found the decedent lying on the sidewalk with a bullet hole in his chest. He was alive at this point and taken to a local hospital, where he succumbed to his injuries.   

Police arrested the defendant and questioned him. He waived his Miranda rights and gave a statement to the police. He claimed that he had shot the decedent in self-defense. He further told the police about prior incidents in which the decedent had possessed a gun and threatened the defendant with the gun. He mentioned one specific instance where he had disarmed the decedent and hid the decedent’s gun. He took the police to the location where he had hidden the gun. The police recovered the gun and some ammunition.

Prior Bad Acts in Self-Defense Cases

After the decedent died, prosecutors charged the defendant with Murder, gun charges, and possession of an instrument of a crime. Prior to trial, the Commonwealth filed a Motion in Limine asking the trial court to allow the introduction of the defendant’s existing Aggravated Assault conviction. The trial court held a hearing, and the court ruled that the Commonwealth could introduce evidence of the Aggravated Assault conviction if the defendant took the stand and told the jury that the decedent was a violent person and that he had acted in self-defense. Undeterred, the defendant took the stand and testified that the decedent was a violent person who had attacked him first. The defendant also testified that he, the defendant, never carried a weapon and was not a violent person. The jury convicted the defendant of third-degree murder and the gun charges. The Court sentenced him to a lengthy period of state incarceration followed by a period of probation and also ordered him to pay $7,864.72 in restitution to the Pennsylvania Victim’s Compensation Fund. The defendant appealed.  

What is Character Evidence?

The defendant raised several issues on appeal. First, he argued that the trial court erred in permitting the Commonwealth to introduce evidence of his prior Aggravated Assault conviction in order to rebut his assertion that the complainant was the violent aggressor. In general, character evidence is extremely important in Pennsylvania. Pennsylvania law permits criminal defendants to introduce character evidence to show that they are not the type of person who would commit the crime charged. In other words, a defendant who has no prior record may introduce evidence about his or her law abidingness, truthfulness, and non-violence to show that he or she would not have committed a crime. Under Pennsylvania law, the jury will then be instructed that character evidence alone may be enough for the jury to find reasonable doubt. Typically, in Philadelphia, if a defendant has good character, meaning no prior record, the Commonwealth will stipulate to it and the defendant may not have to call live witnesses to testify to the character evidence. When the defense does call character witnesses, the witnesses must testify only about the defendant’s good reputation for the relevant character traits; the witness may not testify about specific good things that the defendant has done or the witness’s own personal opinion.   

Although the defense may introduce character evidence, the Commonwealth generally may not introduce evidence of a defendant’s bad character or prior criminal history for the purposes of proving that the defendant is a bad person who would commit the crimes charged. The logic behind the rule is that just because an individual committed a crime at some point in their life, it does not necessarily follow that they committed this particular crime. However, there are exceptions to the rule. The Commonwealth may try to introduce evidence of prior convictions through Pa.R.Crim.P. 404(b).   

What is a 404(b) motion?

Although the Commonwealth may not introduce character evidence to show that a defendant committed a crime because he has a character for criminality, the Commonwealth can introduce prior criminal contacts to rebut certain defenses. The rules permit the Commonwealth to file a 404(b) Motion. A 404(b) motion is commonly referred to as a “Prior Bad Acts Motion,” and prosecutors file them to rebut certain defenses such as mistake, fabrication, lack of knowledge. The Commonwealth may also introduce these “bad acts” to show that it was part of the defendant’s Modus Operandi or was part of a common scheme.

Let’s do an example of common scheme. Suppose that an individual is charged with Possession with Intent to Deliver a Controlled Substance, or selling drugs. More specifically, let’s say that he is accused of selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets. Let’s also assume that he has a prior conviction for selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets from a month prior to the arrest of his current case. If the Commonwealth were to file a 404(b) motion to introduce that prior conviction, they would have a decent argument that the defendant is engaged in a common scheme to sell heroin with X stamps on the package at the southwest corner of D and Allegheny Streets. Technically, this example did not address the defendant’s character. However, if a judge or a jury hears that a defendant has a prior conviction for selling drugs and is currently on trial for selling drugs, it is much more likely that he will be found guilty of the current offense because juries have a very hard time disregarding the fact that the defendant has a prior conviction. Accordingly, these 404(b) motions can make or break a case.    

The Pennsylvania Superior Court Limits the Commonwealth’s Introduction of Character Evidence to Rebut a Claim of Self-Defense

In cases involving crimes of violence, however, the Commonwealth may sometimes introduce character evidence when the defendant raises the issue of self-defense. The prosecution may not introduce this evidence as part of its case-in-chief, but if the defendant introduces evidence that the complainant was the aggressor and a violent person, it opens the door for the prosecution to attack the defendant’s character.

As previously explained, there are different rules for the Commonwealth and defendants when it comes to introducing character evidence. The rule governing character evidence is Rule 405. Typically, as the Crosley court explained, only defendants can introduce specific instances of conduct and this can only be done for alleged victims. As such, a defendant cannot introduce specific instances of conduct to show his character for non-violence. He would need a witness to discuss his reputation for non-violence. However, if a defendant is attacking a victim’s character, he can then use specific examples (i.e. a prior conviction of the witness for assault) to show that the witness was a violent person.

In rebuttal, the Commonwealth may only attack the defendant’s character through reputation evidence. The Commonwealth cannot bring in specific instances (i.e. a prior conviction) to rebut his claim. Therefore, in Crosley, the lower court erred in admitting Mr. Crosley’s prior aggravated assault conviction to rebut his self-defense claim. The Commonwealth would have had to call someone who knew the defendant to speak about his reputation for violence to rebut his self-defense claim.

Unfortunately for the defendant, the Superior Court held that the trial court did not completely err in allowing the Commonwealth to introduce the conviction. The defendant testified at his trial that “[he] never [carries] a weapon.” The problem with this statement is that his prior conviction involved a weapon. Therefore, the Superior Court held that the Commonwealth was allowed to introduce this conviction (which was a guilty plea) to impeach him. The defendant’s other grounds for appeal were also denied. Specifically, there was sufficient evidence to show that he committed third degree murder (as stated above, there was a witness who saw him shooting at the victim) and that the record supported a factual finding that there were costs incurred in trying to save the victim’s life and ultimately the  disposition of his remains.

Call the Award-Winning Criminal Law Office of Goldstein Mehta LLC if You Are Charged with a Crime of Violence

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The rules of evidence can be complicated. If you are facing serious criminal charges, you need a defense attorney who will use them to your advantage. Our award-winning Philadelphia criminal defense lawyers have successfully fought 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 Supreme Court Agrees Police May Not Search Cell Phone Without Warrant

Zak Goldstein - Philadelphia Criminal Defense Attorney

Warrantless Searches of Cell Phones in Pennsylvania

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Fulton, agreeing with the United States Supreme Court that law enforcement officers generally may not search a cell phone incident to a defendant’s arrest without first obtaining a search warrant. The Court further concluded that the introduction of the evidence obtained from the illegal search of the defendant’s phone in this homicide case did not amount to harmless error. Therefore, the Court reversed the defendant’s conviction and ordered a new trial.  

The Facts of Commonwealth v. Fulton

On June 15, 2010, Philadelphia police received a call from Michael Toll reporting that he had been shot. Police responded to the call and found Toll in a vehicle on the sidewalk with gunshot wounds on the right side of his body. Toll told the police that Jeff shot him, and he gave them a description of Jeff. Police took Toll to the hospital and searched the car. They recovered a cell phone, and the cell phone showed that Toll had exchanged phone calls with someone listed in the phone as Jeff. Police determined that the number for Jeff was linked to a prepaid phone with no subscriber information.

Toll eventually died from his wounds. On the morning that he died, police received a call concerning drug activity and a man with a gun at a specific address. Police responded to the call and found several individuals in and around a 2002 green Mercury Marquis. The police saw a gun, a gun holster, and cell phones in the vehicle. They arrested the four men who were nearby. One of those men was Fulton, the defendant in this case. Police took a cell phone from Fulton incident to his arrest and obtained a search warrant for the vehicle but not the phone.

The Search of the Phone

The phones were given to Homicide Detectives who were investigating Toll’s death. The detectives opened the phones, turned them on, and examined them in order to determine the phone number associated with each phone. One of the phones turned out to have the same number as the phone number for Jeff that was in the decedent’s phone. Homicide detectives did not obtain a warrant prior to going through the phones. Further, detectives began answering incoming calls to the phone that had been linked to Jeff.

One person called and eventually told detectives that the phone number belonged to Fulton and that she regularly purchased heroin from him. Armed with this information, detectives interrogated Fulton, and Fulton promptly incriminated himself in the shooting. Police obtained a search warrant for Fulton’s residence and found ammunition which was the same as that used in the fatal shooting. Police also interviewed some of the other men who they had arrested along with Fulton and obtained statements from them which implicated Fulton in the murder. Accordingly, police charged Fulton with murder.

The Motion to Suppress

Prior to trial, Fulton moved to suppress the evidence obtained from the warrantless search and use of the cell phone. The trial court denied the motion, but the trial court made its decision prior to the United States Supreme Court’s decision in Riley v. California holding that police must obtain a warrant prior to searching a cell phone. Fulton went to trial and was eventually convicted of third-degree murder and sentenced to 15-30 years of incarceration. Fulton appealed to the Superior Court, and the Superior Court denied the appeal.

By the time of the Superior Court’s decision, the United States Supreme Court had held that police may not search a phone without a warrant. The Superior Court recognized that police should have obtained a search warrant for the phone, but it held that the intrusion into the phone was minimal because police did not review personal data or social media located on the phone. Therefore, the Superior Court held that Riley did not apply. It also found that to the extent that the police violated Fulton’s rights, the introduction of the illegal evidence amounted to harmless error which would not justify overturning the third-degree murder conviction.

Petition for Allowance of Appeal

Fulton filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court ultimately overturned the defendant’s conviction. The Court concluded that there was really no dispute. Riley’s holding could not be clearer: in order to access any information on a cell phone, police must first obtain a warrant. The Supreme Court did not create an exception for what police or courts may deem a minimally invasive search of a cell phone. The Court specifically rejected a case-by-case test for searches of phones. Instead, it held that police simply must get a warrant or they cannot use the results of the search of a cell phone in court. Any search of a cell phone requires a warrant.

The Court concluded that homicide detectives conducted three separate searches of the phone without a warrant. First, they searched the phone by powering it on. Second, they searched the phone by going into it and obtaining its phone number. Third, they searched the phone by monitoring incoming calls and text messages.

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Having concluded that the police violated Fulton’s rights by searching the phone without a warrant, the Court next found that the constitutional violation did not amount to harmless error. The Court ruled that all of the evidence that was found due to the searches of the phone must be suppressed. This included the existence of the woman who identified Fulton as a drug dealer, her statement, and the evidence that the phone number was the same number as that for Jeff. Given the extensive use of this evidence against the defendant at trial and the fact that much of the evidence was contradicted and inconsistent, the Supreme Court rejected the idea that the conviction could stand under the harmless error doctrine. Accordingly, the Court vacated the conviction and ordered a new trial for Fulton without the illegally seized evidence. 

PA Superior Court Reverses Robbery Conviction Because Prosecutors Struck Jurors Due to Race

Prosecutors May Not Discriminate Against Jurors Based On Race

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Edwards. The Court reversed Edwards’ multiple convictions for gunpoint robbery after finding that the prosecution improperly struck jurors because they were African American. The Court concluded that the defendant successfully raised a challenge to the prosecution’s decisions during jury selection under the United States Supreme Court’s decision in Batson v. Kentucky.

Edwards was charged with multiple gunpoint robberies and related charges for allegedly robbing five men and shooting one of them. His co-defendant took a plea deal and testified against him in exchange for a reduced sentence, and the jury found Edwards guilty of all of the charges. After he was convicted, he was sentenced to 22 to 44 years of incarceration.

Edwards appealed, raising challenges to the sufficiency of the evidence as well as what is called a Batson challenge. The Superior Court rejected the challenges to the sufficiency of the evidence, but it found that the trial court should have granted the defendant’s motion to seat excluded African American jurors pursuant to Batson. A Batson challenge involves challenging the prosecution’s use of race as a factor in picking and striking jurors during jury selection. In Batson, the United States Supreme Court held that the prosecution violates the Equal Protection Clause of the United States Constitution by striking potential jurors solely on the basis of race.

Batson Challenges

In Pennsylvania, the analysis under Batson involves three stages. First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors due to their race. Second, when the defense can make such a showing, the burden shifts to the prosecutor to provide race-neutral reasons for why the prosecutor struck the jurors at issue. Third, the trial court must then make the ultimate determination as to whether the defense has proven purposeful discrimination against jurors based on race.

Here, the defendant was able to show that the prosecution had discriminated against the jurors based on race for a number of reasons. First, the trial court used an incredibly suspect method of jury selection in which the list of jurors from which the parties made their peremptory challenges (strikes) included the race and gender of every juror. Second, in making its eight strikes, the prosecutor struck seven African Americans and an eigth non-caucasian potential juror, meaning that every single prosecution strike was of a minority. Third, the Superior Court found that the prosecution’s reasons for striking the jurors were not plausible. For example, the prosecutor stated that the Commonwealth struck jurors because they were joking with each other or because of they way they were sitting. Although those reasons would be facially race-neutral for purposes of the second part of the test, the Superior Court found that the reasons simply were not persuasive given the improper juror list and statistics involved.

Ultimately, during jury selection, the parties considered 30 potential jurors. Of those 30, 13 were African-American. The Commonwealth used seven of its eight strikes on African-Americans, and it used the eighth strike on a member of a different minority group. The Commonwealth did not strike a single white juror. Although statistics alone cannot prove a discriminatory intent on the part of the prosecutor, the Court was appalled by the fact that the prosecution used all eight strikes on minorities and then attempted to explain its decision to do so by stating that it did not like the way one of the potential African American jurors was leaning while sitting. This was particularly true in light of the fact that the trial court had actually instructed the jurors at the beginning of jury selection to sit back and relax because the process would take some time. Thus, the Court found that the Commonwealth’s reason was implausible. The Court reversed the defendant’s conviction and remanded the case for a new trial.

Pennsylvania and United States law prohibit the Government from excluding jurors based on race. In most cases, this rule is difficult to enforce because prosecutors will be able to protect themselves by striking some white jurors. It is also typically easy to come up with reasons for striking the jurors which are unrelated to race. However, where the Commonwealth seems to be engaging in a pattern of racial discrimination during jury selection, it is important to raise a Batson challenge in order to either have the jurors seated or preserve the issue for appeal. It is also important to remember that Pennsylvania law requires the party making a Batson challenge to include on the record the race of the stricken prospective jurors, the race of prospective jurors who were acceptable to the striking party but stricken by the party making the challenge, and the racial composition of the jury seated for trial.

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PA Supreme Court Reverses Murder Convictions Where Prosecution Hid Key Impeachment Evidence

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Attorney

The Pennsylvania Supreme Court has just announced its decision in Commonwealth v. Johnson, affirming the lower court’s finding that the prosecution committed Brady violations when it withheld several police reports that would have established that its star witness repeatedly engaged in criminal activity and acted on behalf of the police as an informant. This withholding of crucial impeachment evidence by the police and district attorneys in the case violated the defendant’s fundamental right to a fair trial and led to a reversal of his convictions for homicide.

Commonwealth v. Johnson

In Johnson, the defendant was convicted of two counts of first-degree murder and sentenced to death. The Commonwealth alleged that on December 7, 1996, two cousins robbed a woman because they were looking for drugs and money. They did not find either drugs or money, but they did steal a camcorder and a Sony PlayStation. This woman then told her boyfriend that she had been robbed. The woman told her boyfriend that the robbers were wearing green hoodies during the robbery. The boyfriend knew the cousins and recalled that they were wearing green hoodies earlier on the day of the robbery. The boyfriend spoke with Mr. Johnson, the defendant, and another co-defendant. They also went to a local K-Mart and purchased shotgun shells.  

The next day, the boyfriend made contact with the cousins. He lured the cousins into a car under the ruse that they would oversee his drug-dealing business while he was out of town. Later that evening, the cousins were found dead on a gravel driveway. During the incident, the defendant was shot in the torso, and he later went to the hospital.

While at the hospital, the defendant gave a statement to the police. The defendant’s version of events was that his role was limited to driving the minivan. The defendant further stated that when the boyfriend was “showing” where the drugs were stashed, the cousins became suspicious and refused to follow him. Subsequently, the boyfriend began shooting and not only shot the cousins, but also shot the defendant. The defendant then went to a restaurant to get help, and that is where he encountered the police. The defendant did not say that he shot or possessed a gun in his statement, and he presumably denied that he knew that the boyfriend planned to shoot or kill the cousins. This statement was introduced against the defendant at his trial. Without additional evidence, however, the statement may not have been enough to convict the defendant of homicide. 

At trial, the Commonwealth alleged that the defendant was actually one of the individuals who shot the cousins. Specifically, they alleged that one of the bullets found in one of the victims came from a .38 caliber handgun. The Commonwealth then called a cooperating witness, Mr. Robles, who testified that the defendant owned a .38 caliber handgun and that the defendant confessed to him to taking the gun from the murder scene, wiping it off with his shirt, and then throwing it on the side of the road about a quarter mile from the scene of the crime. Robles’s testimony was crucial because it linked the murder weapon to the defendant

On cross-examination, defense counsel tried to attack Robles’s credibility by suggesting that he was engaged in criminal activities and was an informant for the Reading Police Department. The Assistant District Attorney objected to this line of questioning, but the court allowed defense counsel to inquire into areas of possible bias. Unfortunately, this cross-examination was limited because, as discussed later, the Commonwealth did not provide the defense attorney with existing police reports linking Robles to drug trafficking and other crimes. After both sides rested, the jury found the defendant guilty of first-degree murder and sentenced him to death.

The Defendant's Appeals and PCRAs

What followed after the trial was a very long and complicated factual and procedural history that spanned for almost two decades. Initially, after the sentencing, the defendant’s attorney obtained a letter that Robles sent to the Reading Police while he was incarcerated as a material witness. In that letter, Robles stated that he would “do anything” to get out of jail. The defendant filed an appeal, arguing that the failure to disclose this letter was a violation of Brady v. Maryland. However, the Pennsylvania Supreme Court rejected the argument because the Commonwealth gave the defense lawyer a police report that referenced this letter prior to trial, so the defense already knew about the letter at the time of the trial and was able to cross-examine Robles on the general subject of the letter. Thus, the defendant’s first Post-Conviction Relief Act Petition was denied.  

Eventually, the defendant's luck began to change. In a different homicide case in which he was also convicted based on Robles’ testimony, the defendant filed a federal habeas petition. In that case, Robles was again a key witness against the defendant. Again, Robles testified that Johnson had confessed to him. In the federal habeas litigation, the United States District Court for the Eastern District of Pennsylvania ordered the Commonwealth to disclose to the defense team any evidence of a relationship between Robles and the Reading Police Department and/or the Berks County District Attorney’s Office.  

In response to this order, the Commonwealth produced five police reports that could have been used to impeach Robles at both trials because they showed that Robles had repeatedly been investigated for serious criminal activity and not arrested or prosecuted. Specifically, these police reports included accusations that Robles robbed individuals, and in exchange for providing testimony about an unsolved murder, he would not be prosecuted. The reports also suggested that Robles engaged in drug trafficking, lied to police about his own crimes, and possessed and fired guns. Despite repeatedly being investigated for these crimes, Robles was never charged criminally.

After obtaining these police reports, the defendant amended his second PCRA petition to allege that the Commonwealth violated Brady by withholding these police reports. The PCRA court found that these documents were relevant and that there was a reasonable probability that the jury’s verdict would have been different had these reports been disclosed to the defense.  The Commonwealth then filed this appeal to the Pennsylvania Supreme Court.

What is Brady Material?

In Brady v. Maryland, the United States Supreme Court held that prosecutors must hand over all material that may potentially exonerate a defendant. Where the prosecution fails to do so, the defendant could be entitled to a new trial. Brady violations are typically challenged either on appeal or in Post-Conviction Relief Act proceedings.

In order to establish a Brady violation, a defendant must prove three elements: 1) the evidence was suppressed by the state either willfully or inadvertently; 2) the evidence was favorable to the defendant, either because it was exculpatory or because it could have been used for impeachment; and 3) the evidence was material in that its omission resulted in prejudice to the defendant. The ultimate issue for a Brady claim is whether there is a reasonable probability that the outcome at trial or sentencing would have been different if the Government had turned over the Brady material. A reasonable probability does not mean that it would be more likely than not that a different verdict would be reached, but only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

Police Reports Which Could Be Used To Impeach A Key Witness Are Brady Material

The Pennsylvania Supreme Court, unsurprisingly, found that the withheld police reports were Brady material. In its opinion, the Court found that the police reports “are textbook impeachment evidence” and that “[t]hey suggest that Robles sought to curry favor with the police in the face of ongoing criminal investigations and mounting evidence of his own criminal conduct.” Further, the reports showed that Robles had a financial interest in testifying against Johnson because he himself was involved in drug trafficking and would have gained from eliminating a competitor.

The Court further emphasized how crucial Robles was to the case against the defendant. Robles’s testimony was what connected Mr. Johnson to the murder weapon. Without Robles’s testimony, the Commonwealth may not have been able to prove the necessary intent for a first-degree murder conviction. As such, this material could have been very damaging to the Commonwealth’s case in that it may have convinced a jury that Robles was lying to benefit himself, and thus the Pennsylvania Supreme Court affirmed the PCRA court and granted Mr. Johnson a new trial.  

PCRA Petitions

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Pennsylvania’s Post-Conviction Relief Act provides a number of different ways to challenge a wrongful conviction. If you were previously convicted and believe that this occurred either through wrongdoing by the government or that your trial attorney was ineffective, you need an attorney who has the keen attention to details that will make or break your case. Our award-winning Philadelphia criminal defense lawyers have successfully litigated countless PCRA petitions. 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.