Philadelphia Criminal Defense Blog

Zak Goldstein 6/8/18 Zak Goldstein 6/8/18

PA Superior Court: Commonwealth Cannot Appeal Dismissal for Lack of Evidence at Preliminary Hearing, Must Re-File Instead

Commonwealth v. Perez

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Perez, holding that the Commonwealth may not file an interlocutory appeal following the dismissal of charges for lack of evidence at a preliminary hearing. The court held that the Commonwealth must instead re-file the charges and ask that a different magistrate hear the case.

The Facts of Commonwealth v. Perez

In Perez, the defendant was charged with first-degree Murder and Possession of an Instrument of Crime (“PIC”). The Commonwealth filed the charges against the defendant in the Philadelphia Municipal Court, and the case was scheduled for a preliminary hearing before a Municipal Court judge. At the conclusion of the hearing, the MC judge dismissed the charges, finding that the Commonwealth failed to establish a prima facie case of Murder or PIC at the preliminary hearing.

The Commonwealth re-filed the charges. When the Commonwealth re-files on homicide charges in Philadelphia, the preliminary hearing takes place again before a judge in the Court of Common Pleas. When the Commonwealth re-files in the suburban counties, a different Magisterial District Justice, or sometimes even the same justice, will hear the case again. In this case, the Common Pleas homicide judge presided over the second preliminary hearing, and the Commonwealth presented additional evidence. Despite the fact that the Commonwealth presented additional evidence, the Common Pleas judge agreed that there was simply not enough evidence to find that the defendant committed the murder. The judge again dismissed the charges, and the Commonwealth appealed to the Superior Court.

Why would a case get dismissed at the preliminary hearing?

In a criminal trial before a judge or a jury, the Commonwealth must prove the defendant’s guilt beyond a reasonable doubt or the factfinder must acquit the defendant. The standard at a preliminary hearing, which typically occurs within the first few weeks or months of a case, is much lower. The Commonwealth must only show that a crime occurred and the defendant probably committed it. The Commonwealth is entitled to all reasonable inferences in its favor and in the suburban counties, may generally proceed entirely on hearsay presented by police officers. In Philadelphia, the Commonwealth generally cannot get away with proceeding entirely based on hearsay, but some hearsay is still allowed under the rules. If the Commonwealth fails to prove that it is more likely than not that the defendant committed the crime charged, then the court should dismiss the charge or reduce the gradation to the level that was proven by the prosecution.

Is the case over if it gets dismissed at a preliminary hearing?

There are two main reasons why a case would be dismissed at a preliminary hearing. First, if the prosecution is repeatedly not ready to proceed because witnesses have failed to appear, then the case could be dismissed for lack of prosecution (“DLOP”). In Philadelphia, this typically takes place when the Commonwealth is not ready to go three times in a row. Second, if the prosecution presents a case but the evidence fails to prove by a preponderance of the evidence (51%) that the defendant committed the crimes charged, then the judge should dismiss the charges for lack of evidence (“DLOE”). Both types of dismissals are not necessarily the end of the case because the Commonwealth may re-file the charges. When the Commonwealth re-files the charges, the preliminary hearing will be heard again by a different judge. In Philadelphia, re-filed cases stemming from dismissal for lack of evidence are heard either in Motions court by a Common Pleas judge if it is a non-homicide case or by one of the homicide judges in a murder case. The Common Pleas judge will review the notes of testimony from the preliminary hearing and receive any additional evidence which the parties wish to present. In the suburban counties, a Magisterial District Justice will conduct an entirely new preliminary hearing.

Are there limits on the Commonwealth’s ability to re-file after a dismissal at the preliminary hearing?

Although the Commonwealth may re-file the charges following a dismissal for lack of evidence, the Commonwealth’s ability to re-file is not unlimited. Pennsylvania appellate courts have held that where the charges are repeatedly dismissed by the preliminary hearing magistrates, the successive re-filing of the charges could eventually reach the point of prosecutorial harassment and implicate due process rights. In that case, the charges could be dismissed without prejudice or the trial judge could prohibit the Commonwealth from re-filing the charges. The Commonwealth would then be limited to appealing the case to the Superior Court and asking the Superior Court to find that the evidence presented was sufficient to show that defendant probably committed the crime.

The Criminal Appeal in Perez

In Perez, the Commonwealth re-filed the charges once with the homicide judge in the Court of Common Pleas, and that judge still dismissed the murder charge without prejudice. Instead of attempting to re-file again before a different judge, the Commonwealth filed a motion to reconsider the dismissal order and eventually appealed the case to the Superior Court when that motion to reconsider was denied.

The Superior Court rejected the appeal, however, and refused to reach the merits of the case. The court found that the Commonwealth could not appeal the trial court’s decision because the order dismissing the charges was not a final order. In general, Pennsylvania appellate courts only have jurisdiction over appeals of final orders. A final order is one that disposes of all of the parties and all of the claims, meaning no further action is pending in the trial court. However, when a trial court dismisses criminal charges at a preliminary hearing, the Commonwealth can simply re-file the charges (assuming that they have not re-filed so many times that it would constitute prosecutorial harassment). Therefore, the Superior Court found that the appeal from the dismissal order was interlocutory and premature. The court denied the appeal, finding that the Commonwealth should have simply re-filed instead. Had the dismissal of the charges been with prejudice, meaning that the Commonwealth could not re-file, then the appeal would have been proper. Thus, Perez clearly establishes that the Commonwealth must re-file until no longer allowed before taking an appeal to the Superior Court.

The Impact of Perez

The Superior Court’s decision is somewhat counter-intuitive, but there are still protections for a defendant who is facing criminal charges. First, if more than one judge dismisses the charges, the Commonwealth may decide that they simply do not have a case and give up instead of continuing to re-file the charges. Second, Pennsylvania appellate courts have held that the Commonwealth’s ability to re-file is not limitless. Although there is no set number of times that the Commonwealth may re-file, the courts have found that “[I]f the Commonwealth’s conduct intrudes unreasonably upon the due process right of individuals to be free from governmental coercion, the Commonwealth should not be permitted to present the case repeatedly before successive magistrates.” In practice, this usually means that if the Commonwealth re-files more than once and the case is dismissed two or three times, the courts will likely dismiss the charges with prejudice and prevent the Commonwealth from re-filing. In that case, the Commonwealth could appeal the dismissal of the criminal charges to the Superior Court because that would be a final order. Likewise, where a trial judge in the Court of Common Pleas grants a Motion to Quash (also called a Petition for Writ of Habeas Corpus in the suburban counties), the Commonwealth may appeal that ruling to the Superior Court because the Commonwealth is prohibited from simply re-filing in order to evade the Common Pleas judge’s decision quashing the charges.

It is hard to say whether the court’s opinion in Perez benefits the Commonwealth or the defense. In general, allowing the Commonwealth to repeatedly re-file charges can be extremely expensive and stressful for a defendant as the defendant has to repeatedly defend against the charges at successive preliminary hearings. It also allows the Commonwealth to keep trying until the Commonwealth gets a judge that will rubber stamp the charges. At the same time, defending an appeal to the Superior Court is far more complicated, time-consuming and expensive than defending a preliminary hearing. Superior Court appeals can also take years. Therefore, criminal defendants may benefit in terms of cost and obtaining a resolution more quickly as this decision requires the Commonwealth to proceed by re-filing until prohibited by court order from doing so.

Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. We are experienced and understanding defense attorenys who will fight for you. We offer a free 15-minute criminal defense strategy session to each potential client. Call or text 267-225-2545 to speak with an attorney today.

Zak Goldstein 6/2/18 Zak Goldstein 6/2/18

PA Supreme Court Finds Autopsy Reports Testimonial under Confrontation Clause

Philadelphia Criminal Defense Attorney Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Brown, holding that autopsy reports are testimonial and therefore may not be introduced at trial unless the witness who prepared the report testifies. In this case, however, the court found that the improper admission of the autopsy report was harmless error, so the defendant did not receive a new trial.

The Facts of Commonwealth v. Brown

In Brown, the defendant attended a party on Stanley Street in Philadelphia. Before arriving at the party, he hid a gun in the wheel well of a nearby parked car. The defendant argued with someone during the party, and his co-defendant then retrieved the gun from the car and gave it to the defendant. The defendant shot the person with whom he was arguing four times, killing him. A doctor with the Philadelphia Medical Examiner’s Office performed an autopsy and prepared a report of the findings. The report found that the decedent had been shot four times, the shots struck the ribs, heart, lungs, and shoulder of the victim, and three of the bullets entered the front of the victim’s body while one entered his back. The report also described the trajectory of the bullets in the victim’s body and noted that there was no soot, stippling, or muzzle imprints around any of the gunshot wounds. The report noted that the cause of death was multiple gunshot wounds and the manner of death was homicide.

At the time of trial, the doctor who performed the report no longer worked for the city. The Commonwealth did not call him to testify at the trial. Instead, the Commonwealth admitted the report into evidence by calling a different doctor who had reviewed the report to testify to the other doctor’s report. The defendants objected, arguing that the admission of the report without the testimony of the doctor who prepared it violated the Confrontation Clause of the Sixth Amendment of the United States. Based on the other doctor’s report, the testifying doctor told the jury that the wounds were consistent with a scenario in which someone shot the victim from a distance of six to eight feet away while facing him, and then shot the victim in the back after the victim turned away. He further testified that the victim could have walked a few feet before collapsing.

The jury convicted the defendant of third-degree murder and related offenses, and the court sentenced him to 25 – 50 years in prison. The defendant appealed, and the Superior Court affirmed his conviction. The court first ruled that the report should not have been admitted, but it found harmless error because there was no real dispute about the cause of death.

The Criminal Appeal

The defendants again appealed to the Pennsylvania Supreme Court, and the Supreme Court agreed to review the case. On appeal, the Commonwealth argued that autopsy reports are not testimonial because they are not necessarily created for trial in the same way that a BAC report or drug test report is prepared specifically for trial. Instead, state law requires coroners to prepare autopsy reports regardless of whether there is an ongoing criminal activity. The defendant argued that although some autopsy reports are prepared regardless of whether there is a suspicion of criminal activity, the law requires the coroner to prepare a report in response to any suspicious death and cooperate with the prosecutor. Further, the report in this case was prepared for the prosecution of homicide charges.

What is the Confrontation Clause?

The Pennsylvania Supreme Court agreed with the Superior Court that the report was testimonial and therefore should not have been admitted without the testimony of the doctor who prepared it. The Confrontation Clause, which is part of the Sixth Amendment, provides criminal defendants with the right to confront the witnesses against them. This means that they have the right to cross-examine witnesses under oath at trial.

The Pennsylvania Supreme Court noted that in Crawford v. Washington, the United States Supreme Court created the modern analysis of the Confrontation Clause. The Court barred the admission of testimonial statements of a witness who did not appear at trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Thus, the key question for whether a statement violates the Confrontation Clause is whether the statement is testimonial. In general, statements are testimonial when their primary purpose is to establish or prove past events for purposes of proof at a criminal trial. This means that statements made to police officers who are investigating cases are typically going to be testimonial. Likewise, lab reports prepared to prosecute a criminal defendant at trial will also generally be found to be testimonial. On the other hand, statements which are not made for the purposes of criminal prosecution – such as a phone call to 911 in order to obtain emergency assistance – will often be found non-testimonial.

The Court's Decision

Ultimately, the Court concluded that the autopsy report was testimonial. Pennsylvania law requires the preparation of autopsy reports in all cases of sudden, violent, and suspicious deaths, or deaths by other than natural causes, and in such cases, the autopsy and subsequent report are designed to determine whether the death occurred as the result of a criminal act. The law also requires the coroner to advise and cooperate with the District Attorney. Therefore, the primary purpose of an autopsy report is to establish or prove past events potentially relevant to a later criminal prosecution. Any person creating the report would reasonably believe it would be available for use at a later criminal trial. Therefore, an autopsy report is testimonial.

What is Harmless Error?

At the same time, the Supreme Court concluded that the defendant was not entitled to a new trial because the admission of the report amounted to harmless error. Even where the trial court has made a mistake in an evidentiary ruling, an appellate court may find harmless error where 1) the error did not prejudice the defendant or the prejudice was de minimis, 2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence, or 3) the property admitted and un-contradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Here, the Court found that the error was harmless error because the report was merely cumulative to the properly admitted testimony of the testifying doctor relating to the cause of death. Specifically, it was harmless error because the doctor had reached his own independent opinion regarding the cause of death which did not rely entirely on the inadmissible autopsy report. Further, an expert witness generally may rely on inadmissible evidence if it is the type of evidence that an expert in the field would normally rely on in reaching a determination. Thus, the report itself should not have been admitted, but the doctor was properly permitted to rely on it in reaching his own conclusions. Therefore, the defendant was not entitled to a new trial.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or may be under investigation by law enforcement, we can help. Our Philadelphia criminal defense attorneys have successfully defended thousands of clients in Pennsylvania and New Jersey. We offer a free 15-criminal defense strategy session to each potential client, and we can help you build a defense to pending criminal charges or evaluate the merits of filing a PCRA or direct appeal. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today.

Zak Goldstein 5/26/18 Zak Goldstein 5/26/18

NOT GUILTY: Attorney Goldstein Obtains Full Acquittal in Jury Trial for Client Charged with “Second Strike” Gunpoint Robbery

Commonwealth v. R.R.

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC continue to obtain outstanding results in the courtroom. Recently, a Philadelphia jury acquitted Attorney Goldstein’s client of all charges in a gunpoint Robbery case following a two-day trial.

The Evidence

Prosecutors charged R.R. with Conspiracy, Robbery, Theft, Receiving Stolen Property, and various Violations of the Uniform Firearms Act. Prosecutors alleged that R.R. and another gentleman followed the complainants home from a Burger King at around 2 in the morning and blocked the complainants from parking. The complainants claimed that the robbers eventually let them park, and they then got out of the car. The robbers got out also, and one of the robbers pulled a gun and pointed it at the complainants. The driver of the SUV, who was alleged to be R.R., then went through the male complainant’s pocket and the car. The person stole $700, a cell phone, and some of his paperwork. The robbers then got back into their SUV and drove off.

Police took statements from the complainants, and the complainants claimed that they remembered the numbers on the license plate of the SUV in which the robbers fled the scene. The complainants gave those numbers to the police along with the make and model of the SUV, and police then ran the plate numbers through the computer. They determined that R.R. had been stopped in a similar SUV with the same four numbers on the plate approximately two hours before the Robbery. Police detectives put R.R. in a photo array and showed that photo array to the complainants a few days later. The female complainant identified R.R. in the photo array as the driver of the SUV, but the male complainant could not identify anyone. Based on the identification of the one complainant, detectives arrested R.R. and charged him with gunpoint Robbery as a felony of the first degree.

The Defense

R.R. quickly retained Attorney Goldstein to defend him. Mr. Goldstein moved for a pre-trial lineup at the preliminary hearing, and the Philadelphia Municipal Court judge granted the motion for the lineup. Both complainants were required to appear for the lineup. Again, the female complainant identified R.R. at the lineup as the driver, and the male complainant was not able to make an identification. However, when the preliminary hearing occurred, the female complainant admitted that she had been drinking heavily prior to the robbery. The male complainant was also again unable to identify R.R. as having anything to do with the Robbery. Nonetheless, the Municipal Court judge found that the female complainant’s shaky identification was sufficient to force R.R. to stand trial.

R.R. decided to have a jury trial, and Attorney Goldstein was successfully able to use cross examination to show that the complainants had simply picked out the wrong guy. First, Attorney Goldstein highlighted the fact that the female complainant was initially only 90% sure that the defendant was the right person, she had been drinking heavily all night, and she had not provided the license plate number to the police officer who first responded to the scene. Attorney Goldstein also highlighted the significant discrepancies in the description she gave of the driver of the vehicle and what R.R. looked like at the time.

Second, Attorney Goldstein cross examined the male complainant on the fact that he had never previously been able to identify R.R. as being involved in the Robbery. For the first time ever, however, the male complainant claimed that R.R. was the driver of the SUV despite never identifying him at the preliminary hearing, photo array, or pre-trial lineup. Attorney Goldstein was able to impeach him with his prior statements to show that he did not really know what the person who robbed him looked like.

Finally, Attorney Goldstein highlighted the poor job that the detective had done in preparing the photo array in that every other photo in the photo array was of a person who weighed significantly more or less than the defendant. Attorney Goldstein closed on a misidentification theory; the complainants believed they had picked the right guy, but they had made a mistake, and R.R. looked totally different from the person that they described to the police on the night of the Robbery. The fact that R.R. was stopped in a similar vehicle a few hours before simply did not prove that he was the robber.

After hearing all of the evidence, the jury deliberated for approximately two hours before acquitting R.R. of all charges. Although the complainants claimed that they were 100% sure that R.R. was the driver of the vehicle and that they would never forget his face, R.R. was found Not Guilty of all charges and quickly released from custody. Due to a prior record, R.R. would have been facing 10-20 years in jail or more if he had been convicted in this case.

Facing Criminal Charges? We Can Help.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are under investigation or facing criminal charges, we can help. We are experienced and understanding Philadelphia criminal defense attorneys with proven track records of successfully defending clients in and out of the courtroom. Our defense lawyers are not afraid to take a case to trial in front of a judge or jury, and we have successfully helped thousands of people navigate the pitfalls of the criminal justice system. We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an award-winning criminal defense lawyer today.

Zak Goldstein 5/19/18 Zak Goldstein 5/19/18

PA Superior Court Continues to Undermine US Supreme Court's Birchfield Ruling

The Pennsylvania Superior Court has decided the case of Commonwealth v. Moser. In Moser, the Superior Court concluded that police lawfully obtained the defendant’s blood sample without a search warrant because the defendant consented to the blood draw before police read him defective and coercive O’Connell warnings. Accordingly, the court reversed the trial court’s order suppressing the results of the blood test.

The Facts of Commonwealth v. Moser

Moser was charged with Homicide by vehicle while under the influence of alcohol or controlled substance (Homicide by DUI), three counts of DUI, homicide by vehicle, and related traffic offenses. Moser filed a motion to suppress, arguing that police coerced him into submitting to warrantless blood testing by reading him defective O’Connell warnings which informed him that if he refused the blood testing, he would be subjected to stricter criminal penalties. The United States Supreme Court has previously held in Birchfield v. North Dakota that a state cannot impose criminal penalties on a defendant who refuses to submit to a warrantless blood draw, and Pennsylvania courts have suppressed blood testing in which defendants were told they would face criminal penalties if they refused prior to the testing.

The trial court granted the motion to suppress. It found that the behavior of the police was unlawfully coercive and violated Moser’s rights because the police told him that he would face criminal penalties if he refused the testing. By granting the motion to suppress, the court ordered that the prosecution could not use the results of the blood testing at the homicide trial.

The Commonwealth appealed to the Superior Court. On appeal, the Commonwealth argued that Moser had actually agreed to the blood testing while in the back of the police car on the way to the hospital. The police who were investigating the case did not read him the defective warnings until he arrived at the hospital. Therefore, the prosecution argued that he had already agreed to the blood draw prior to hearing anything coercive. Because the warnings were not provided until later, they could not have coerced him into giving up his right to insist on a search warrant prior to a blood test.

The Superior Court agreed. It found that although the warnings were improper and could have been coercive, the warnings did not coerce the defendant in this case because they were not given until after he had already consented to the blood draw in the back of the police car. Therefore, the court reversed the decision of the trial court and ordered that the blood test results may be introduced at trial going forward.

This case continues a recent trend in the Sueprior Court of rejecting these Birchfield challenges and allowing the Commonwealth to use evidence even where the police gave improper warnings. A number of Birchfield cases are still on appeal, and the Pennsylvania Supreme Court has granted review in at least one of them. Therefore, although this is a significant set back for the defendant in this case, it is possible that the rules surrounding blood testing in DUI cases will continue to change and that the Superior Court could be overturned. For the time being, the Superior Court continues to regularly undermine the basic holding of Birchfield that states may not impose criminal penalties on a defendant for refusing blood testing when police have not obtained a search warrant. Obviously, the constitution requires search warrants, but the appellate courts continue to allow police to ignore this requirement and forgives their basic refusal to set up electronic or telephonic warrant application systems for DUI cases.

Facing criminal charges? We can help.

If you are facing criminal charges or may be under investigation, we can help. We are experienced and understanding Philadelphia criminal defense lawyers who will fight for you. We have successfully defended thousands of clients in trial courts throughout Pennsylvania and New Jersey as well as on appeal and in Post-Conviction Relief Act Petitions. We offer a complimentary 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an award-winning defense attorney today.