PA Supreme Court: Prosecutor May Call Defendant Dangerous, Cold-Blooded Killer During Closing Argument

Criminal Defense Lawyer - Zak T. Goldstein, Esq.

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Clancy, clarifying what type of rhetoric prosecutors may use during closing arguments. This decision arguably provides prosecutors with more leeway to use prejudicial, inflammatory euphemisms and to categorize the defendant in a negative way during closing. 

The Facts of Commonwealth v. Clancy

In Clancy, the defendant was charged with shooting and killing the decedent in Aliquippa, Pennsylvania following a physical altercation. After the physical altercation, the defendant allegedly pulled a gun and fired multiple shots at the decedent. The decedent was hit three times in the back and died. After the shooting, the defendant had a polite conversation with an individual in a convenience store who had nothing to do with the incident. The defendant then fled to Pittsburgh and evaded arrests for a few months. He eventually turned himself in. 

Prosecutors charged the defendant with first degree murder and carrying a firearm without a license. At trial, the defense’s strategy was to argue that his actions did not amount to first-degree murder because he “had been moved by passion as a result of the fight with [complainant]." The defendant testified at his trial and stated that “[his] anger took over [him].” He further testified that he neither aimed the gun at the complainant or intended to shoot him. This type of argument, if believed by the jury, could have led to a conviction for third degree murder or some form of manslaughter. Although manslaughter and third degree murder still typically carry significant jail time, that can be a "win" in a murder case because a conviction for first degree murder requires to judge to impose a mandatory sentence of life without parole.

The Commonwealth presented several witnesses to the fight. Additionally, prosecutors showed a video that partially depicted some of the events at issue. Finally, during closing argument, the prosecutor referred to Defendant as “a dangerous man” and a “cold-blooded killer.” Defense counsel did not object to this characterization.

At the conclusion of the trial, the jury found the defendant guilty of all charges. The judge sentenced the defendant to life imprisonment without the possibility of parole as required for a conviction for first-degree murder. The defendant then filed several post-sentence motions, which were denied. He appealed to the Superior Court, and the Superior Court affirmed the conviction on direct appeal. 

Following the conclusion of the direct appeal proceedings, the defendant then filed a Post-Conviction Relief Act “PCRA” petition. In his petition, he claimed that his trial counsel was ineffective in failing to object during closing arguments when the prosecutor referred to the defendant as a “dangerous man” and a “cold-blooded killer.” The petition further alleged that the prosecutor’s statements amounted to an impermissible expression of personal belief and that these statements inflamed the jury. Accordingly, the petition sought a new trial at which the Commonwealth would be barred from making such inflammatory arguments. 

In response to the filing of the Petition, the PCRA court conducted an evidentiary hearing. At the hearing, the trial attorney was called to testify. He testified that he did not believe that the prosecutor’s arguments were objectionable and that he thought it was strategic not to object. The PCRA court denied the defendant’s PCRA Petition, and he filed an appeal of the PCRA court's ruling to the Superior Court. 

What is Ineffective Assistance of Counsel?

Pennsylvania's Post-Conviction Relief Act allows for a defendant to obtain a new trial if his or her trial attorney was constitutionally ineffective. In order to succeed on an ineffective assistance of counsel claim, the defendant has to plead and prove, by a preponderance of the evidence, that the ineffectiveness of his or her trial lawyer “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” More specifically, a defendant must show that 1) the underlying legal claim was of arguable merit; 2) counsel had no reasonable strategic basis for his action or inaction; and 3) the petitioner was prejudiced—that is, but for counsel’s deficient stewardship, there is a reasonable likelihood the outcome of the proceedings would have been different. If the defendant fails to prove any of these elements, then he or she will not be successful in PCRA litigation.

What May Prosecutors Say During Closing Argument? 

A prosecutor has significant leeway in what he or she can say during closing argument, but there are limits. When a prosecutor goes beyond the limits, then a new trial may be granted by the trial court, on appeal, or in PCRA litigation. The most obvious restriction is that a prosecutor may not argue evidence that is not in the record. For example, assuming that a motion to suppress was granted because the police engaged in illegal conduct, the prosecutor could not make reference to the evidence that was suppressed.

However, more relevant for the instant case, a prosecutor is also limited in how they characterize the defendant and the evidence in the case. This is because appellate courts have recognized that the jury may attach special importance to the arguments of the prosecutor by virtue of the office the prosecutor holds. For example, a prosecutor may not state his or her personal belief in the guilt of the defendant. They also may not use many epithets. Here, the Pennsylvania Supreme Court emphasized that a prosecutor may not employ direct or indirect personal assertions of guilt.

What is the “Unavoidable Prejudice Test?”

However, the Court also acknowledged that judges must look at the entire circumstances of the trial before determining whether a prosecutor’s comment(s) should warrant a new trial. This is referred to as the “unavoidable prejudice test.” This test was articulated Commonwealth v. Stoltzfus. The test is:

Where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. The language must be such that its unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict. The effect of such remarks depends upon the atmosphere of the trial, and the proper action to be taken is within the discretion of the trial court.

The Stoltzfus court held that there must be a consideration of what happened during the trial before determining whether a prosecutor’s comments are grounds for a new trial. In Stoltzfus, the Court reasoned that because defense counsel had attacked the credibility of the Commonwealth witnesses, it was not reversible error when the prosecutor attacked the credibility of the defendant and his testimony. By contrast, in Commonwealth v. M. Johnson, the Pennsylvania Supreme Court granted the defendant a new trial when the prosecutor, in his closing argument, stated that defendant was guilty by association, because of his relationship with some of the witnesses, even though the record did not support that assertion. Nonetheless, the Court recognized that prior holdings on this issue were not entirely clear and decided to clarify the rule governing what prosecutors may say during closing. 

The Court's Ruling

In Clancy, the Pennsylvania Supreme Court clarified what constitutes permissible argument from a prosecutor. To determine whether the statement from the prosecutor is legally sound, the court must evaluate the substance of the challenged remark and its effect upon the jury. This is a two-prong analysis. The substance prong requires the court to examine the challenged remark in the context of the issues presented at trial. In other words, there must be some evidentiary support or an assertion by the defense that justifies the Commonwealth’s statement. If the statement does not have evidentiary support or was not made in response to the defense's arguments or questions, then the court must consider whether the intemperate statement had an impermissible effect on the jury.

Here, the Pennsylvania Supreme Court found that the prosecutor’s statements had a reasonable evidentiary foundation. The defendant shot at the complainant several times and struck him three times in the back. Further, immediately after the shooting he had a “polite” conversation with an unrelated individual and went to a convenience store. Further, because the defense argued that he had acted in the heat of the moment, the prosecutor was allowed to argue that the defendant was “dangerous” and that he acted in “cold-blood” to rebut the defense’s theory of the case. Because the Court held that there was evidentiary support for these statements, it did not consider the effect of these statements on the jury.  Accordingly, because these statements were permissible, the trial attorney was not ineffective for failing to object to these statements during the prosecutor’s closing argument, thereby resulting in the denial of the PCRA Petition. 

Facing criminal charges? We can help. 

Zak Goldstein and Demetra Mehta - Philadelphia Criminal Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, and Attempted Murder. We have also successfully represented clients in direct appeals to the Superior Court and in Post-Conviction Relief Act litigation. 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. 

PA Supreme Court Rejects First Amendment Challenge to Witness Intimidation Conviction Based on Rap Lyrics

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Knox, holding that rap lyrics can support convictions for witness intimidation and terroristic threats even where there is no evidence that the defendants actually sent the video of the rap to the complainants. The court rejected the idea that the First Amendment right to free speech shielded the authors of the lyrics from criminal liability because the song communicated a true threat to the complainants. 

The Facts of Commonwealth v. Knox

In April 2012, a Pittsburgh police officer initiated a routine traffic stop of a vehicle driven by the defendant. While the officer was questioning the defendant, the co-defendant got into the driver’s seat and then sped away and crashed the vehicle. The police caught up, searched the vehicle, and recovered fifteen bags of heroin, money, and a stolen firearm on the driver’s-side floor of the car. When they arrested the defendant, he gave the police a fake name. A detective eventually arrived on scene, recognized the defendant, and provided the arresting officers with his real name. Based on these facts, the defendant and his co-defendant were subsequently charged with several offenses, including weapons charges. 

While the charges were pending, the defendants wrote and recorded a song titled “F—k the Police,” which was put on video with still photos of the defendants displayed in a montage. In the photos, the two looked into the camera and motioned as if firing weapons. The video was uploaded to YouTube and also publicized on Facebook. Prosecutors did not establish who uploaded the video to the internet.

The song’s lyrics expressed hatred towards the Pittsburgh police. The lyrics of “F—k the Police” contain descriptions of killing police informants and police officers. The song specifically mentioned the officers involved in the defendant's case and that the defendants knew when those officers’ shifts end. It suggested that the officers may be attacked in their homes. Further, the lyrics also contained a reference to an individual who previously murdered three Pittsburgh police officers.

The Pittsburgh police discovered this song and then arrested and charged the defendant with terroristic threats and witness intimidation. At the trial, one of the officers testified about the “street slang” for some of the lyrics mentioned in the song. Examples include “cop killa” as a type of bullet that can pierce armored vests; “strapped nasty” means carrying multiple weapons; and “busting heavy” means to shoot many rounds.

One of the officers involved in the defendant's first case testified at trial. He testified that when he heard the song he was “shocked” and it made him “nervous.” He further stated that it was one of the reasons why he left the Pittsburgh police force. A detective involved in the defendant's first case also testified and said he found the song to be very upsetting and that it made him concerned for his safety.

At the conclusion of the trial, it was clear that the song was the sole basis on which the Commonwealth sought convictions for witness intimidation and terroristic threats. The defendant argued that the song was protected speech and that any conviction would violate his First Amendment rights. The trial court rejected the argument and found him guilty of witness intimidation and terroristic threats. He then filed a timely appeal. The Superior Court  affirmed the conviction, and the Pennsylvania Supreme Court granted allocatur and heard the appeal.

What is the First Amendment?

The First Amendment to the United States Constitution provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. ”

— The First Amendment

First Amendment protections apply broadly to different types of expression including art, poetry, film, and music. The bedrock principle of the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

However, not all speech is protected. In Schenck v. United States, Oliver Wendell Holmes was famously quoted as saying that the First Amendment does not protect against someone falsely shouting “fire” in a theater and causing a panic. Further, threats of violence fall outside the First Amendment’s protective scope. In response to threats of violence, the United States Supreme Court adopted the “true-threat doctrine.”

What is the “True-Threat Doctrine?”

The “true-threat doctrine” originated from the United States Supreme Court case Watts v. United States. In that case, the defendant was convicted of a federal statute making it a crime to threaten the President. In Watts, the defendant stated that, in essence, he would not report to the draft and “if they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Though the Supreme Court upheld the statute as constitutional, the Court went on to say that the defendant’s conviction could only be upheld if his words conveyed an actual threat, as opposed to political hyperbole. In Watts, the Court held that, given the circumstances in Watts (it was uttered during a political debate, the audience reacted with laughter, and that it was a conditional threat) that the statement was merely just an expression of political dissent and not a true threat.

In subsequent years, courts across the country have struggled to define the “true-threat doctrine.” Some jurisdictions utilize an objective standard, while other jurisdictions put great emphasis on the speaker’s subjective intent when making a statement. In Knox, the Pennsylvania Supreme Court held that there should be an inquiry into the speaker’s mental state and thus evidentiary weight should be given to contextual circumstances of the utterance.

Pennsylvania Supreme Court Affirms Defendant's Conviction

In its decision, the Pennsylvania Supreme Court affirmed the defendant's convictions for terroristic threats and witness intimidation. Specifically, the justices did not find persuasive the argument that the defendant's song was an “artistic expression of frustration.” The Court rejected the First Amendment argument because of the fact that some of the officers involved in his first case were mentioned by name and the lyrics described in graphic terms how he intended to kill them.

To the Pennsylvania Supreme Court, “the lyrics are both threatening and highly personalized to the victims.” Its conclusion is further bolstered by the fact that the song references the officers’ shifts. Additionally, because the lyrics were directly related to the defendant's first case (i.e. the one officer confiscating cash from Appellant to which he says that said officer “knockin’ my riches”) was further support that the defendant's song was personalized to the officers. The Pennsylvania Supreme Court also did not find persuasive the fact that the song was not directly sent to the officers. The fact that the song was published on YouTube and Facebook, despite no direct evidence that the defendant posted it on these mediums so that the police would see it, was sufficient to convict the defendant of these crimes.

Facing Criminal Charges? We Can Help.

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, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Superior Court: Prosecutors May Introduce Evidence that Defendant and Recanting Eyewitness Were Incarcerated Together

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Thomas, holding that the trial court properly permitted the Commonwealth to introduce evidence that the defendant and an eyewitness who later recanted were incarcerated in the same prison before trial together in order to suggest that the eyewitness recanted out of fear of the defendant. The Superior Court allowed this testimony despite the fact that the there was no concrete evidence to show that the defendant and the eyewitness had communicated while they were incarcerated together or that the defendant had pressured the witness in any way.

The facts of Commonwealth v. Thomas

Philadelphia Prosecutors charged the defendant in Thomas with first degree murder, carrying a firearm without a license (VUFA Sec. 6106), and possessing an instrument of crime. The jury found him guilty, and the trial court immediately sentenced him to the mandatory life in prison without parole on the murder charge as well as an aggregate 4.5 to 12 years of incarceration on the other charges.

The evidence at trial showed that the defendant, the decedent, and a group of other men were playing dice in Philadelphia. At some point during the game, the men concluded that the decedent was cheating. One player angrily walked away from the game, but the defendant told him that he was going to handle it. Witnesses testified that later, while the decedent was bending over to roll the dice, the defendant pulled a gun and shot at him from behind, causing the decedent to fall to the ground. The defendant then shot him two more times in the face. Two of the witnesses who testified that the defendant committed the murder were a man named K.F. and a man named E.M. Philadelphia Police responded to the scene and transported the decedent to the hospital, where he was pronounced dead.

Although K.F. gave a statement to police indicating that the defendant committed the murder, K.F. later recanted that statement and wrote a letter claiming that it was not the defendant who actually committed the murder. In response, prosecutors introduced evidence at trial that K.F. and the defendant were incarcerated at the same jail two months prior to trial. The defense attorney objected on the basis that telling the jury that the defendant was incarcerated would suggest to the jury that the defendant was a criminal, but the trial court overruled the objection and allowed the prosecution to introduce the evidence despite this potential for unfair prejudice against the defendant.  

The Superior Court Appeal

After the jury convicted the defendant, he appealed to the Pennsylvania Supreme Court. As one of the main issues, he claimed that the trial court erred in admitting the evidence that he and K.F. were incarcerated in the same prison at some point prior to the trial and K.F.’s recantation. K.F. had previously claimed in a video-taped statement that he watched the defendant shoot and kill the decedent. However, K.F. was subsequently arrested on unrelated charges of his own. Within one month of his arrest and incarceration in the same jail as the defendant, K.F. wrote a letter recanting his video-taped statement. Therefore, the Commonwealth argued that the incarceration in the same jail was relevant to show both the defendant’s consciousness of his own guilt and to explain why K.F. recanted his prior statement.

On appeal, the Superior Court agreed. It recognized that the courts have long recognized that any attempt by a defendant to interfere with a witness’s testimony is admissible to show a defendant’s consciousness of guilt. Additionally, the Commonwealth may cross-examine a witness in an attempt to show that there are reasons, such as fear or intimidation, why a witness may have changed his or her story. Therefore, the Commonwealth’s cross-examination of K.F. was relevant to show both the defendant’s potential consciousness of guilt and why K.F. may have changed his statement.

At the same time, the court recognized that there could be some prejudicial effect to informing the jury that the defendant was incarcerated prior to trial. However, the court found that the trial judge sufficiently eliminated the risk of unfair prejudice to the defendant by providing a cautionary instruction. In the instruction, the trial judge informed the jury that the jury should not consider the defendant to be a bad person or a person of bad character merely because he had been arrested and incarcerated pending trial. The judge made it clear to the jury that the only reason the defendant was in jail was because he was awaiting trial for this case, not because he was serving a sentence on some other case. The judge further instructed the jury not to draw any conclusions whatsoever from the mere fact that the defendant was in jail pending trial. Therefore, the Superior Court found that the trial court properly allowed the prosecution to ask these questions. It found the defendant’s other issues waived and upheld the conviction.

The court’s opinion, of course, completely ignored the fact that it was the Commonwealth’s fault that the defendant and the witness were held in the same jail. Philadelphia has at least four county prisons in which a defendant can be held while awaiting trial, and the jails have procedures by which inmates can be held separately from each other so that they do not have contact with each other. Prosecutors have the ability to house inmates in different counties or states when necessary and routinely do so. Here, the case suggests that the Commonwealth did nothing to inform the prison that the two inmates should be housed in different facilities. The Commonwealth also appears to have introduced no evidence that the two inmates actually came into contact with each other while incarcerated or that the defendant did anything to make the witness change his story. Nonetheless, the Superior Court seems to have ignored these basic facts in finding in favor of the Commonwealth.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free 15-minute criminal defense strategy session to any potential client. If you have been arrested or may be under investigation, call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Full Acquittal: Attorney Goldstein Wins Not Guilty Verdict in Attempted Murder/Carjacking Case

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have continued to find success on behalf of their clients in the courtroom, winning jury trials and motions to suppress in serious cases. Outside of the courtroom, we are also a source of insightful legal analysis on criminal defense issues in the news. Recently, our defense attorneys have won criminal cases involving charges ranging from Attempted Murder to DUI and Possession with the Intent to Deliver. Some of our recent wins include: 

Commonwealth v. R. R. – Jury Acquits Client of Attempted Murder, Carjacking, and Related Charges

R.R. was charged with Attempted Murder, Robbery of a Motor Vehicle (carjacking), Robbery, Aggravated Assault, Conspiracy, and related gun charges. Prosecutors alleged that R.R. and a friend robbed the complainant after a drug deal, taking his cell phone, car keys, and a small amount of money. R.R. then shot the complainant twice when the complainant tried to demand that R.R. return the car keys. The complainant, however, initially denied to police at the scene that he knew who shot him. He was then briefly interviewed by detectives at the hospital, and he again reiterated that he did not know the person who shot him. 

A few days later, after police allegedly received an anonymous tip that R.R. was the shooter in this incident, Philadelphia detectives re-interviewed the complainant. This time, he told them that R.R., a long-time friend, was the person who shot him and stole his car. A second witness also allegedly came forward a few days later and claimed to have been smoking marijuana with the complainant just before the shooting and that she was still present at the scene when R.R. shot the complainant. She called 911 right at the time of the shooting, but when police arrived at the scene, she refused to give a statement. She also did not claim that R.R. was involved in the shooting for a week or two. When she did finally give a statement, she said that she saw R.R. in the area right before the shooting, but she did not see the shooting itself. At trial, of course, she changed her story and testified that she personally saw R.R. shoot the complainant. In addition to the witness statements, police obtained cell phone records that showed that R.R. and the complainant had exchanged a number of text messages and phone calls directly before the shooting. Police also recovered the complainant’s car a few days later and held it for fingerprints and DNA .  

Based on these later statements of the complainant and the eyewitness in which they claimed that R.R. was the shooter, police arrested R.R. and charged him with Attempted Murder and related charges. R.R. rejected the Commonwealth’s plea offer and decided to proceed by way of a jury trial. At trial, Attorney Goldstein was able to successfully argue to the jury that the witnesses had fabricated their statements. Attorney Goldstein highlighted the fact that the complainant gave two separate statements right after the shooting in which he did not tell police that R.R. shot him. He also impeached the eyewitness on the fact that she did not come forward for weeks and was on probation for theft at the time that she made the statement. He also confronted her with her original statement in which she never said that she actually saw the shooting itself. Finally, Attorney Goldstein called the police department’s own DNA analyst as a witness to testify that the steering wheel and gear shift of the complainant’s car had been tested for DNA and they had been unable to match the DNA to R.R. 

In closing, Attorney Goldstein argued that the Commonwealth had simply failed to prove its case beyond a reasonable doubt. The DNA did not match R.R., there was no other physical evidence linking him to the crime, and both the complainant and eyewitness had failed to either implicate R.R. or come forward after the shooting. Both have given multiple contradictory statements, and even the assigned detective had given testimony that was impeached through his own police reports. The jury deliberated for approximately two hours before acquitting R.R. of all charges. R.R., who had been held pending the trial, was released from custody. 

Commonwealth v. A.R. – Motion to Suppress Granted in DUI Case

Police arrested and charged A.R. with driving under the influence of marijuana and Xanax. The arresting officer claimed that he saw A.R. driving through Philadelphia with a defective center brake light, which is a violation of the motor vehicle code. Based on the defective brake light, the officer activated his lights and sirens and attempted to pull A.R. over. The officer claimed that A.R. refused to pull over for numerous blocks and seemed like he was trying to flee from the officer. Further, after A.R. did eventually pull over, the officer approached the car and immediately noticed the strong odor of marijuana coming from the vehicle. The officer further testified that A.R. had slurred speech, slow movements, was uncooperative, and admitted to smoking marijuana.

On paper, the case looked very difficult. Fortunately, A.R. retained Attorney Goldstein. Attorney Goldstein litigated a motion to suppress the statement regarding smoking marijuana and the blood test which showed the presence of marijuana and Xanax in A.R.’s blood. At the hearing on the motion, the officer testified that A.R. refused to pull over and immediately blurted out that he had been smoking weed, but the officer’s report directly contradicted his testimony. In his report, the officer specified the exact location at which he claimed he initially saw A.R. operating the car with the broken brake light and the location at which A.R. eventually pulled over. Although the officer testified that A.R. attempted to flee when the officer activated his lights and sirens, Attorney Goldstein was able to use a map of the area to show that in reality, A.R. had pulled over within two or three blocks at most of first coming into contact with the police officer. Given that A.R. actually pulled over within two or three blocks, the testimony that A.R. refused to pull over simply did not make any sense.

Further, the officer eventually admitted that he had not even waited for A.R. to roll down the window but had instead immediately opened the car door himself. Attorney Goldstein argued at the motion to suppress hearing that the Philadelphia Municipal Court judge should reject the officer’s testimony as not credible because of the obvious contradiction provided by the map and find that the officer engaged in an illegal search of the car when he opened the car door himself without giving A.R. the opportunity to roll the window down. Attorney Goldstein also called the police officer who conducted the blood draw at the police station an hour or two after the arrest to testify that he had not recorded any observations of intoxication or odor of marijuana on the report that this second officer created when he came into contact with A.R.

The Municipal Court judge agreed with Attorney Goldstein and granted the motion to suppress. Without the critical blood evidence and incriminating statement, prosecutors had no choice but to withdraw all charges. 

Commonwealth v. K.H. – Judge Acquits Client of Drug Charges Following Bench Trial

Police charged K.H. with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, Conspiracy, and Possessing an Instrument of Crime. Prosecutors alleged that K.H. and another man sold drugs in Kensington. Philadelphia narcotics officers claimed that they set up surveillance from a vehicle parked down the block and began watching as the alleged buyers approached. The officer claimed that the buyers would each hand money to K.H.’s co-defendant, who was standing on the sidewalk, and then K.H., who was standing in an alley, would hand small items consistent with narcotics packaging to the alleged buyers. As the alleged buyers exited the block, back up officers would arrive and take them into custody. Police successfully stopped four of the five alleged buyers and found that they had drugs on them. Concluding that K.H. and the co-defendant must have been selling drugs, police then moved in to search the alley, the abandoned house nearby, and to arrest the defendants.

Police arrested K.H. and found that he had $40 on him. They arrested the co-defendant, who tried to run. They also found drugs which matched those found on the alleged buyers in the alley, and they found a shotgun in a nearby abandoned house which the surveillance officer claimed that he had seen K.H. briefly enter and exit. K.H. was arrested after walking in and out of a different house on the corner of the block. Officers claimed that they entered and searched both the abandoned house and the house which K.H. had walked out of right before being arrested. 

K.H. immediately retained Goldstein Mehta LLC for his defense. At the preliminary hearing, recognizing that the case would become significantly less serious if K.H. were not facing gun charges, our criminal defense attorneys focused on getting the Possessing Instrument of Crime charge which stemmed from the discovery of the shotgun in the abandoned house dismissed. Attorney Goldstein extensively cross-examined the police witnesses on whether they had ever seen K.H. in possession of the gun, whether the gun was out in the open in the abandoned house, and whether police had attempted to obtain fingerprints or DNA from the shotgun. Because the shotgun was hidden, police never saw K.H. in possession of it, and police had not bothered to conduct any forensic testing on the gun, Attorney Goldstein was successfully able to move for the dismissal of the gun charge. Attorney Goldstein also cross-examined the main police officer on the location from which he was supposedly watching the drug sales, which would become extremely important at trial. 

K.H. then elected to proceed to a bench trial in which the trial judge, instead of a jury, makes the decision as to guilt. At the bench trial, the narcotics officers testified to roughly the same story that they had provided at the preliminary hearing. They claimed that K.H. provided small objects, which later turned out to be drugs, to five alleged buyers. They also claimed that they were successfully able to stop and arrest four of those five buyers and recover the drugs which K.H. had allegedly sold.

On cross-examination, however, Attorney Goldstein was able to use photographs of the crime scene to establish that the officer would not have been able to see into the alley to see who was actually making the drug sales from the location in which he said he was parked at the preliminary hearing. Attorney Goldstein also successfully established that the officer had searched the corner property on the street without a search warrant. Although the officer tried to claim that he could legally search the property without a warrant because the property was abandoned, Attorney Goldstein used photographs of the house and K.H.’s lease for the property to show that the property was not abandoned and police had entered the house without a warrant. Finally, Attorney Goldstein introduced character evidence which showed the judge that K.H. had never been arrested before and had an excellent reputation in the community for being a peaceful, law-abiding citizen. After recognizing that K.H. had no prior record, had not been found in actual possession of any drugs, and that the abandoned house was not actually abandoned, the trial judge found that she had reasonable doubt as to whether K.H. was actually the person in the alley. The judge found K.H. Not Guilty of all charges despite the fact that police claimed to have seen him selling drugs to five separate people. 

Attorney Goldstein Quoted in Philly.com Articles on Indecent Assault and Impact of #MeToo Movement on Criminal Defense Strategies

In addition to winning cases in the courtroom, our attorneys are often asked for analysis of criminal defense issues by the media. For example, Attorney Goldstein was recently quoted in two separate articles in the Philadelphia Inquirer. 

In one article, Attorney Goldstein was asked to provide insight on how attorneys are responding to the #MeToo Movement in sexual assault cases. You can read the article here. 

In the other article, Attorney Goldstein was asked to comment on the potential charges a person could face for groping a stranger in public and whether the victim would face charges if he or she responded by punching the groper. You can read the article here. 

Facing criminal charges? We can help.

If you are under investigation or facing criminal charges in Pennsylvania or New Jersey, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout PA and NJ. We are experienced and understanding defense attorneys with the skill and ability to help you with your case, and we are not afraid to take a case to trial. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a criminal defense attorney today.