Philadelphia Criminal Defense Blog

Zak Goldstein 7/22/19 Zak Goldstein 7/22/19

PA Superior Court: Failure to Properly Investigate Alibi and File Accurate Alibi Notice May Be Ineffective Assistance of Counsel

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Shaw, holding that a defendant may be entitled to a new trial where the defense attorney provided the ineffective assistance of counsel by failing to properly investigate an alibi defense and by filing an erroneous notice of alibi which was later used to impeach the defendant’s testimony. This case is important because it emphasizes the defense attorney’s both to fully investigate potential alibi defenses and to take care to file an accurate notice of alibi where one is appropriate. It also allows for a defendant to be impeached through the use of the notice of alibi, which was filed by the defendant’s lawyer, in addition to any statements made by a defendant.

Commonwealth v. Shaw

In Shaw, the prosecution alleged the following: on November 30, 2009, the complainant saw the defendant and his accomplice hanging around his apartment building. The complainant spoke with them. When the conversation concluded, the complainant went into his apartment where he was entertaining guests. The defendant and his accomplice came to the door and asked the complainant if he had change for a $100 bill. The complainant accommodated them and then returned to his guests, but he heard another knock a short time later. Assuming it was a food delivery, the complainant opened the door. However, it was the defendant and his accomplice and they forced their way into the complainant’s home. After they entered, they demanded money from the complainant. They then assaulted him and shot him in the chest and the thigh. The complainant’s guests, who were hiding in the bathroom, called 911.

Police and paramedics arrived a short time later. The complainant was taken to the hospital where he was treated for his injuries. While en route to the hospital, the complainant stated that one of the assailants was a small, dark-skinned, black man wearing a grey hoodie. He could not give a description of the other individual.

After he recovered from his injuries, the police showed the complainant a photo array, and he identified the defendant and his accomplice. The complainant stated that the medication he was on in the hospital did not hamper his ability to make an identification and that he was positive the defendant was the one who shot him. The police were also able to locate multiple witnesses to this incident, including a neighbor who would later testify that he saw the defendant and his accomplice in the area earlier in the day. A female guest ultimately testified that she saw the defendant punch the victim.

Police arrested the defendant charged him with attempted murder, robbery, various charges under the Uniform Firearm Act, burglary, possession of an instrument of a crime, aggravated assault, and criminal conspiracy. Prior to his trial, his attorney did not file a motion to suppress the victim’s identification of him. However, his attorney did file an alibi notice. Specifically, the notice of alibi alleged that the defendant was with his girlfriend and another woman in Philadelphia on the day this robbery occurred. However, the defendant’s attorney only spoke to the girlfriend and only called her to testify at his trial. He never spoke with the other woman or called her as a witness. The Commonwealth then used the defendant’s alibi notice to impeach the witness during cross-examination. Based on the notice of alibi, the assistant district attorney asked why the defendant said he was with two women when his girlfriend did not testify to that.

After a jury trial, the defendant was found guilty of all charges and received a 15-30 years sentence. The defendant then filed a timely appeal which was denied and a timely PCRA petition. In his PCRA petition, the defendant raised several arguments as to why his trial attorney was ineffective in representing him. Specifically, the defendant argued that his attorney was ineffective because he did not try to suppress the complainant’s identification of him, he did not request a Kloiber charge, and that he failed to amend his alibi notice prior to trial. He also alleged that the attorney who handled his PCRA claim was ineffective for not raising the issue on appeal. The PCRA court denied his petition, and then the defendant filed this timely appeal.

Can You Suppress a Witness’s Identification?

Sometimes. A defense attorney may file a motion to suppress a witness’s identification if it was unduly suggestive. In other words, if a police officer’s actions during the identification are so egregious that it gives rise to a irreparably tainted misidentification, then a court may prevent that witness from making an in-court identification of the defendant or allowing the Commonwealth to present that pre-trial identification in its case-in-chief.

For example, assume that a woman was robbed and an eyewitness saw the robbery. The police ask him for a description of the assailant and he describes the person as a 5’10, Hispanic male with a beard. The next day, the police provide a photo array and ask the witness if they see anyone they recognize in the photo array. The photo array has six pictures. Five of them are white men with no facial hair, and there is one picture of a Hispanic male with a beard. The eyewitness then identifies this Hispanic male as the person who committed the robbery. Assuming this man went to trial, he could have a strong argument for suppressing the eyewitness’s identification because the photo array was unduly suggestive. There was only one photo of a person who matched the description he gave to the police. The other five pictures were not even close to resembling the perpetrator of the robbery. Thus, it would be clear that the police were trying to make the eyewitness pick the defendant, thereby tainting the identification.

What is a Kloiber Charge?

A Kloiber charge is a jury instruction that is given when the witness did not have the opportunity to clearly view the defendant, equivocated in his identification of the defendant, or had difficulty in making an identification in the past. In the instant case, the defendant argued that because of the complainant’s discrepancies in his initial claim, a Kloiber charge was warranted. The Superior Court rejected this claim. However, a Kloiber charge can be very helpful because it instructs the jury to give less weight to a questionable identification where appropriate.

Can the prosecutor impeach the defendant with the notice of alibi?

Yes. As shown in the instant case, a defendant may be impeached with his or her alibi notice. It was also of no consequence that the defendant did not testify. In other words, the Commonwealth can use the defendant’s alibi notice to impeach the alibi witness that the defense calls. However, and this is very important, if a defendant decides to withdraw his alibi notice prior to trial, the defective notice cannot be used against him or her. The Commonwealth also may not use a withdrawn notice of alibi as evidence of a defendant’s lack of truthfulness at sentencing. Therefore, it is extremely important that a defense attorney thoroughly investigate an alibi and only file a notice of alibi where the defense has merit and the notice will be accurate. If further investigation reveals defects in the notice of alibi, then it should be withdrawn prior to trial.

The Superior Court’s Decision

The Superior Court held that the defendant’s trial attorney was not ineffective for failing to try to suppress the complainant’s out-of-court identification of him or for not requesting a Kloiber charge. The Court, however, also found that the defense attorney was ineffective for failing to amend the alibi notice to accurately reflect the witnesses he intended to call at trial. As the Superior Court stated, it is common knowledge that the Commonwealth can impeach a witness and use the defendant’s alibi notice against him or her if it is not accurate. In the defendant’s case, the trial attorney should have known this because he should have spoken with his witness and realized that the other witness was unlikely to appear for court, and he should have amended his alibi notice to reflect the witnesses he intended to call and what they would actually say. The attorney should have removed the name of the one witness he did not intend to call. If he had done this, the Commonwealth could not have impeached the witness with the erroneous alibi notice. The defense attorney, however, testified that he did not realize that the witness could be impeached with the alibi notice. Therefore, the Superior Court found that there was no reasonable strategy for failing to amend the notice.

The Superior Court also found that the defendant was prejudiced by the attorney’s failure to amend the notice. Alhough the identifications of the defendant were not unconstitutional, they were not the most reliable. Additionally, there was no physical evidence that tended to corroborate these identifications. Consequently, because of this failure by his attorney to amend his alibi notice, the defendant will get a new trial.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 6/29/19 Zak Goldstein 6/29/19

Not Guilty: Attorney Goldstein Wins Murder Trial

Criminal defense lawyer Zak T. Goldstein, Esquire recently obtained a full acquittal from a Philadelphia jury in the case of Commonwealth v. K.E. for a client charged with Murder and Possession of an Instrument of Crime (“PIC”).

According to the police, K.E. and the decedent worked together at the airport. They became involved in a verbal argument after K.E. was part of a group of co-workers which broke up a physical fight between the decedent and another co-worker in the break room. Prosecutors claimed that the decedent pushed K.E., and K.E. then stabbed him one time in the leg, severing the femoral artery and quickly causing the decedent to bleed to death. The Commonwealth argued that K.E. did not act in self-defense and that he showed consciousness of guilt by allegedly fleeing the scene, hiding the knife, and telling the police that he had stabbed the decedent with keys after being punched. Police arrested K.E. a few minutes from the scene of the incident when K.E. walked over to a patrol officer and told the officer that he was the person they were looking for and that he had been punched and responded by stabbing the decedent with his keys. At that time, K.E. did not know that the decedent had died, and he later gave a statement to detectives in which he claimed self-defense but maintained that he had committed the stabbing with his keys. Three days later, however, an airport employee found a bloody knife near where the stabbing occurred, and police quickly concluded that that knife must have been used in the stabbing. Accordingly, they charged the defendant with Murder and PIC.

Fortunately, K.E. retained Philadelphia criminal defense attorney Zak Goldstein. At the time, the defendant had initially been held on $250,000 bail. However, Attorney Goldstein was quickly able to file a motion for release on house arrest pursuant to Pennsylvania’s Speedy Trial Rule (Rule 600B) and have the defendant released pending trial. This made it much easier to prepare for court and investigate the case.

K.E. decided to proceed by way of jury trial, meaning that a jury panel of twelve Philadelphians would be tasked with deciding whether K.E. committed the stabbing with malice or whether he had acted in self-defense. Because prosecutors charged K.E. with third-degree Murder, they would not have had to show that K.E. had intentionally killed the decedent in order to obtain a conviction. Instead, they needed to show only that K.E. had acted with malice – meaning he had acted recklessly and in conscious disregard of a substantial risk of death or serious bodily injury with an extreme indifference to the value of human life.

Through effective cross-examination of the Commonwealth’s witnesses, Attorney Goldstein was able to show that the defendant had not in any way meant to kill the decedent and had instead acted in self-defense. The evidence ultimately showed that although K.E. had a reputation for being a peaceful, non-violent person who had never been involved in any kind of violence before, the decedent had attempted to fight a supervisor shortly before the incident, had attacked a different co-worker just minutes before the incident, and had then attacked the defendant from behind by knocking him to the ground prior to the defendant stabbing him one time in the leg with a small knife in self-defense.

Attorney Goldstein also presented the testimony of the defendant. He testified that he had been part of breaking up the fight between the decedent and the other co-worker and that he had then been attacked from behind by surprise as he turned to walk away. After he was knocked to the ground, he felt that the decedent was going to continue assaulting him, and he quickly defended himself by stabbing him one time in the leg with a knife. He admitted to and apologized for not being totally honest with the police about the keys, but he adamantly refuted the Commonwealth’s allegations that he had acted out of malice, been the aggressor in the fight, and that he did not need to defend himself with deadly force. Ultimately, many of the witnesses agreed that the decedent had actually been the aggressor, and it was also an extremely unexpected result that the decedent would unfortunately die from one stab wound to the leg with a two inch knife. Attorney Goldstein was also able to get the Medical Examiner who conducted the autopsy to agree that based on the nature of the injury, the decedent could have been moving at the time that he was stabbed, suggesting that he may have been moving towards K.E. to continue assaulting him. Thus, Attorney Goldstein argued both that K.E. had acted in self-defense and that he had not acted with malice because one would not expect a person to die from a relatively small knife wound to the leg.

After deliberating for nearly eight hours, the Philadelphia jury of twelve citizens returned a verdict of Not Guilty to both charges. K.E. was acquitted of Murder and Possessing an Instrument of Crime. This verdict is an example of the law of self-defense in Pennsylvania. If a person is in genuine, reasonable fear of death or serious bodily injury, then they may defend themselves with deadly force. Even if that force results in death to another person, the person has not committed a crime because you have the right to defend yourself.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorney Zak Goldstein

Zak Goldstein 5/29/19 Zak Goldstein 5/29/19

PA Superior Court: Improper Exclusion of Defendant's Family Members from Jury Selection Requires New Trial

The Pennsylvania Superior Court has decided the case of Commonwealth v. Jordan, holding that the trial court erred in refusing to permit the defendant’s family members to be present in the courtroom during selection. Because the trial court did not have sufficient reason to believe that the defendant’s family members were involved in any witness intimidation, the trial court violated the defendant’s right to a public trial by barring the family members from the courtroom. Therefore, the defendant will receive a new trial.

The Facts of Commonwealth v. Jordan

In Jordan, the defendant was arrested and charged with Conspiracy, Attempted Murder, and other related charges for an incident which took place in Philadelphia. The defendant chose to proceed by way of jury trial, and he was eventually convicted by the jury and sentenced to 37.5 - 100 years’ incarceration. Although the defendant appealed on the sufficiency of the evidence, the Superior Court rejected this portion of the appeal.

More interestingly, however, the defendant also appealed the trial court’s order barring his family members from remaining in the courtroom during voir dire (jury selection). During jury selection, the defense attorney specifically objected to the defendant’s family being excluded from jury selection. He argued on the record that they did not cause any problems the previous day and that jury selection is part of the trial, and the law requires that criminal trials be public.

After the defense lawyer objected, the judge stated that on the previous day, a large group of people barreled into the courtroom in an intimidating manner. The judge did not know who they were, but she somehow knew that they were there on behalf of the defendants. The judge further stated that witnesses voiced their concerns about their safety. In previous cases, the judge had had problems with jurors feeling intimidated, and so the judge decided to bar everyone, including the defendant’s family, from watching jury selection.

In response, defense counsel argued that the defendant’s mother was in her mid-50’s and his step-father was in his mid-60’s and that they had not been a part of whatever problem had occurred the day before. Therefore, he requested that they be allowed to stay in the courtroom. The court denied the request and prohibited the defendant’s mother and step-father from remaining in the courtroom during jury selection.

The Right to a Public Trial

Following his conviction, the defendant appealed. In addition to arguing that the evidence was insufficient to support the conviction, he also argued that the judge violated his Sixth Amendment right by barring his family members from the courtroom during jury selection. Under the Sixth Amendment, a defendant has a right to a public trial. The right is for the benefit of the accused and ensures “that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” In previous cases, the United States Supreme Court has held that the right to a public trial includes the right to have the public attend voir dire and view the jury selection.

Can the Judge Close the Courtroom to the Public in a Criminal Case?

Although the general rule is that a criminal trial should be public, the trial judge may close the courtroom under limited circumstances. In order to close a courtroom, the judge must properly find that:

1) there is an overriding interest that is likely to be prejudiced,

2) the closure is no broader than necessary to protect that interest,

3) there are no reasonable alternatives to closure, and

4) the court can make findings adequate to support the closure.

If these four requirements are not met, then the judge may not close the courtroom and must allow members of the public to view all portions of a criminal trial, including jury selection.

Nonetheless, the Pennsylvania Supreme Court has held that “where trial courts perceive a threat to the orderly administration of justice in their courtrooms by an unmanageable public, they may always place reasonable restrictions on access to the courtroom, so long as the basic guarantees of fairness are preserved.” This means that a trial judge may be able to close a courtroom in response to legitimate security or intimidation concerns. However, even when overriding interests warrant closure, if the parties or the press petition the court to admit a limited number of specified individuals, the court must consider the request and place on the record the reasons for denying the request. This enables the appellate court to examine whether exclusion was justified.

In this case, the Superior Court rejected the trial court’s reasoning and found that the court failed to follow the above rules. Although the court may have been justified in barring large groups from the courtroom during jury selection due to intimidation concerns, the court failed to give any real consideration to whether allowing just the defendant’s parents to remain in the room would alleviate the intimidation concerns.

An exclusion of the general public does not necessarily warrant the same treatment as the exclusion of the defendant’s close family members or the press. Therefore, if the mother and father had participated in the previous day’s disturbance, the trial court may have been justified in excluding them. However, the judge did not make any findings as to whether the defendant’s mother and stepfather had done anything. Instead, the court unreasonably failed to consider whether permitting just them to remain would be a reasonable alternative to barring everyone from the room.

Improper Denial of the Right to a Public Trial Requires a New Trial

In most cases, a defendant who appeals a legal error made by the trial judge will not receive a new trial unless the defendant suffered some kind of prejudice as a result of the legal error. This means that the Commonwealth usually has the right to argue harmless error, which is the idea that a conviction may be upheld if the Commonwealth can show beyond a reasonable doubt that even without the mistake, the defendant would have still been convicted.

However, there are certain types of errors that automatically require a new trial without a consideration of prejudice. This type of error is called a “structural error” or “structural defect.” The violation of the right to a public trial constitutes a structural error that will always invalidate the conviction. In this case, the defendant’s family members were excluded from the courtroom in violation of his right to a public trial without any real consideration of whether that was absolutely necessary to avoid witness intimidation. Therefore, the court committed a structural error, and the defendant will receive a new trial.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or are 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 won cases involving charges such as Conspiracy, DUI, Aggravated Assault, Rape, Possession with the Intent to Deliver, and Homicide. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/6/19 Zak Goldstein 5/6/19

PA Superior Court: Relevant, Exculpatory DNA Evidence Requires New Homicide Degree of Guilt Hearing

The Pennsylvania Superior Court has decided the case of Commonwealth v. Payne. The Superior Court held that the trial court erred in denying the defendant a new degree of guilt hearing where recently-obtained DNA evidence showed that the defendant did not rape the victim in a case in which the prosecution obtained a conviction for first degree murder by relying primarily on the fact that the defendant had allegedly raped the victim prior to killing her. This case involved a Post-Conviction Relief Act (“PCRA”) challenge based on after-discovered evidence to the defendant’s conviction for first degree murder at a degree of guilt hearing in which the defendant pleaded guilty to homicide generally but argued that he should only be convicted of third degree murder. The degree of guilt matters tremendously in a homicide case because first degree murder requires a sentence of life without parole and third degree murder does not.

Commonwealth v. Payne

In 1977, the defendant pled guilty to murder generally, and three judges were empaneled to decide his degree of guilt. At this hearing, the Commonwealth presented evidence to support its position that the defendant committed a first degree murder. Specifically, the Commonwealth argued that the defendant murdered the victim while he was raping her.

As part of its case-in-chief, the Commonwealth presented the testimony of a Mr. Evans who was incarcerated with the defendant in Erie County prison. Mr. Evans testified that the defendant admitted to him that he strangled the victim in the woods after he raped her and that her death “was a culmination of a sexual fantasy that he had been living with for a long time; that he likes to tie women up and do crazy things to ‘em.” The Commonwealth also called a chemist employed with the Pennsylvania State Police to corroborate Mr. Evans’s testimony that the victim died while “protesting a sexual attack upon her.” The Commonwealth also presented a statement made by the defendant to the police.

Per the Superior Court’s decision, this statement was similar to Mr. Evans’s testimony. At the conclusion of the hearing, the defendant argued that this was a third degree murder. The Panel rejected his argument and convicted the defendant of first degree Murder. In its decision, the Panel placed significant weight on the conclusion that the defendant raped the victim when making its determination that it was a first degree murder and not third degree. Although other evidence was presented, the Panel relied exclusively of the testimony of Mr. Evans and the chemist in its opinion. The defendant was therefore automatically sentenced to life imprisonment without parole. The defendant then filed the first of several appeals and PCRA petitions.

After several unsuccessful attempts at post-conviction relief, on January 8, 1997, the defendant filed a PCRA petition requesting DNA testing on the seminal fluid that was recovered from the victim’s body. The PCRA court denied his petition. The Pennsylvania Superior Court affirmed the trial court’s decision and the Pennsylvania Supreme Court denied his petition for allowance of appeal. On February 6, 2003, the defendant filed a Motion for DNA testing pursuant to the then-newly passed provision of the PCRA permitting DNA testing under certain circumstances. The PCRA court again denied his motion, and he appealed to the Pennsylvania Superior Court. The Pennsylvania Superior Court affirmed the trial court decision and the Pennsylvania Supreme Court denied his petition for allowance of appeal.

Undeterred, the defendant then filed a complaint in the United States District Court for the Western District of Pennsylvania against the Erie County District Attorney’s Office alleging violations of 42 U.S.C. § 1983 for its refusal to permit the DNA testing. While his case was being litigated in federal court, the defendant filed a second motion for DNA testing. On October 4, 2011, the PCRA court again denied relief and both the Pennsylvania Superior Court and Supreme Court also denied him relief. However, on December 16, 2014, the United States District Court signed a stipulated order permitting the post-conviction DNA testing. The DNA test results established conclusively that the defendant was excluded as a contributor to the seminal fluid found on the victim’s body.

Based on this new evidence, the Defendant filed another PCRA petition asserting that he is entitled to a new trial or degree of guilt hearing based on this after-discovered evidence. Again, the PCRA court denied him relief and the defendant filed another appeal to the Pennsylvania Superior Court.

What is a Degree of Guilt Hearing?

A degree of guilt hearing is required when a defendant pleads generally to murder in a case in which the defendant could receive the death penalty. If a defendant pleads guilty or no-contest, then the degree of guilt shall be determined by a jury, unless the Commonwealth elects to have a judge make a determination as to what degree of murder the defendant is guilty of and consequentially what his sentence will be. These hearings are quasi-trials where the Commonwealth and the defense can present evidence and argue that the defendant should be found guilty of first or third degree murder.

What is after-discovered evidence under the PCRA?

42 Pa. C.S. § 9543 (a)(2)(vi) is the statute that governs the after-discovered evidence prong of the PCRA. In order to obtain relief under this subsection, which could include a new trial and/or sentencing, a defendant must show that 1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; 2) the evidence is not cumulative; 3) it is not being used solely to impeach credibility; and 4) it would likely compel a different verdict. The test is conjunctive, meaning that each element must be satisfied. Further, the defendant must satisfy each element by the preponderance of the evidence standard in order to be successful.

In making this determination, the court will consider several factors in making its decision including: the nature of the new evidence; whether, and to what extent, the new evidence is consistent or inconsistent with the other trial testimony; whether, and to what extent, the new evidence is consistent or inconsistent with documentary evidence; the prosecution’s theory at the original trial, and the difficulty of making this argument in light of the new evidence; the prosecutor’s closing remarks, which may demonstrate the importance of the new evidence; and other relevant factors. However, one must remember that this “after-discovered evidence” does not require that the new evidence prove a defendant’s innocence beyond a reasonable doubt. In other words, the defendant does not have to prove his innocence in order to be successful in his petition, he is only required to show that it would have likely compelled a different outcome.

The Superior Court’s Decision

The Pennsylvania Superior Court held that the defendant was entitled to a new degree of guilt hearing. According to the Superior Court’s decision, the only issue was whether the defendant had established by a preponderance of the evidence that the DNA evidence would have changed the outcome of the trial if it had been introduced. In the instant case, the Superior Court held that this evidence would have changed the outcome of the hearing.

The reason is because the Commonwealth’s theory of the case was that the defendant killed the victim while sexually assaulting her. The prosecution repeatedly emphasized the evidence of seminal fluid during the closing argument to the Panel arguing that “at least it was a rape” and that the presence of seminal fluid was proof of the intent required for a first-degree murder conviction. As such, because the DNA evidence was uncontroverted in that the defendant was not the source, the Panel erred in placing such significant weight on it when making its decision. Further, this evidence discredits Mr. Evans’s testimony, a key witness against the defendant. Therefore, the defendant satisfied the after-discovered evidence requirements and the defendant is entitled to a new degree of guilt hearing.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have obtained full acquittals, dismissals, and other successful results in cases involving charges such as Conspiracy, Aggravated Assault, Theft, Rape, and 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.