Philadelphia Criminal Defense Blog

Zak Goldstein 5/24/20 Zak Goldstein 5/24/20

PA Supreme Court: Reckless Introduction of False Evidence Bars Retrial of Wrongfully Convicted Defendant

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that the Pennsylvania Constitution’s Double Jeopardy Clause bars a retrial where the original conviction was based on false evidence and prosecutorial misconduct occurred in the form of prosecutors acting recklessly with respect to seeking the admission of the false evidence. This is an important case which sharpens the teeth of PA’s Double Jeopardy Clause and which provides some accountability for prosecutors who introduce evidence at trial that turns out to be false.

The Facts of Johnson

In Johnson, the victim, Walter Smith, told the police that a man named Clinton Robinson had killed a woman named Margaret Thomas. Later that year, Smith was shot and killed outside of a Philadelphia bar. Based on the ballistics evidence, police believed that there were multiple shooters. Police also found a red baseball cap near Smith’s body.

Debbie Williams, a friend of Smith’s, went to the police station and made a statement to Philadelphia police. She claimed that as they left the bar, there were numerous people outside on the sidewalk or in the street. A man who was wearing a red article of clothing pushed past her towards Smith. She heard shots, so she ducked, and she did not see the shooting. She then saw people run away. After the gunshots, she saw the person who had been wearing the red hat run past her, as well. She went to Smith’s body and picked up his baseball hat, which had a hole in it. The police arrived soon thereafter and took her to the station. She gave the hat to the police.

The case was not solved until 2005. In 2005, a jailhouse informant named Bryant Younger, who was under indictment in a federal drug case, told police that he heard the defendant, who was also in custody, make statements implicating himself in Smith’s murder. The police obtained the defendant’s DNA and compared it to DNA recovered from the red hat. They found that there was a match.

The Commonwealth then somehow got confused and failed to realize that there were two hats – a red hat which was found in the street, and a black hat which Smith had been wearing. The black hat had been tested and in fact had Smith’s blood and DNA on it, and the red hat had the defendant’s DNA on it. But somehow the Commonwealth believed that there was one hat with both men’s DNA on it. The Commonwealth arrested the defendant and charged him with first-degree murder, conspiracy, and possessing an instrument of crime. The case went to trial, and at trial, the Commonwealth’s crucial piece of evidence was the red hat with the DNA on it.

However, due to the Commonwealth’s apparent confusion, the prosecutor argued that the shooter, who was wearing the red hat, must have gotten in close to Smith and shot him, leading both to his own DNA being on the red hat as well as Smith’s blood. This was wrong because Smith’s blood was not actually on the red hat; it was on the black hat.

Nonetheless, the DNA analyst also testified that Smith’s blood and the defendant’s DNA were both found on “the hat.” The defendant’s attorney somehow never challenged the underlying premise that there were two hats. He argued that the DNA may not have been reliable and that no one actually saw the defendant commit the shooting. The prosecution emphasized that the decedent’s blood was on the same hat as the defendant’s DNA in closing argument. The jury convicted, and the court sentenced the defendant to death.

The Post-Conviction Relief Act Litigation

The defendant eventually filed a PCRA Petition after his attorneys uncovered the fact that there had been two hats and the decedent’s blood was only on the black hat. The Commonwealth agreed that the defendant should receive a new trial and also agreed not to seek the death penalty. The court granted a new trial.

Discovery Motions and Double Jeopardy Motions

The defendant then began filing discovery motions based on the finding of the two hats. The motion eventually evolved into a motion to dismiss on double jeopardy grounds due to prosecutorial misconduct in introducing false evidence – the false evidence being that there was only one hat. This led to various evidentiary hearings at which the prosecutors and detectives involved in the original trial had to testify. It quickly became clear to the court that the Commonwealth had not intentionally misstated the evidence but had gotten confused and believed that there was only one hat. Some police officers, however, had also exaggerated the evidence if not completely misstated it.

Following the evidentiary hearing, the defendant moved to dismiss the case. One officer had exaggerated the extent to which he saw blood stains on the red hat, and the other detectives and prosecutors believed that there was only one hat despite the fact that the Commonwealth clearly had two hats in its possession with separate property receipt numbers. He argued that regardless of whether the mistake was intentional or reckless, he had to spend nine years on death row, and the case should therefore be dismissed. The Commonwealth agreed that mistakes were made, but it argued that the mistakes had not been intentional, so it should be permitted to retry the defendant.

The trial court denied the motion to dismiss on double jeopardy grounds. It found that the Commonwealth had acted recklessly, not intentionally, and because the Commonwealth had not acted in bad faith, the double jeopardy clause did not apply. It did, however, permit the defendant to appeal prior to the re-trial by finding that such an appeal would not be frivolous. The Superior Court affirmed, and the defendant appealed further to the Pennsylvania Supreme Court. The Supreme Court accepted the case and reversed the conviction.

The Supreme Court’s Ruling

The Court barred the prosecution of the defendant and dismissed the charges against him.

First, it accepted the trial court’s findings that prosecutors had not acted intentionally but had acted either recklessly or with gross negligence. They had not conspired to deprive the defendant of a fair trial, but they had made so many inexplicable mistakes that the mistakes rose to a level of more than just ordinary negligence.

Second, the Court found that the Pennsylvania Constitution provides greater protections than the United States Constitution. Federal appellate courts have found that the United States Constitution requires intentional misconduct in order for the double jeopardy clause to apply and bar a retrial. But the Supreme Court found that Pennsylvania’s Constitution bars a retrial where the first conviction was vacated as a result of prosecutorial misconduct that occurred recklessly.

The purpose of the double jeopardy clause is not only to penalize prosecutorial error, but also to protect citizens from the embarrassment, expense, and ordeal of a second trial for the same offense. It should also prevent compelling them to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent they may be found guilty.

When the government engages in improper actions sufficiently damaging to undercut the fairness of a trial, it does not matter much to the defendant whether the prosecution did it on purpose. Therefore, the double jeopardy clause applies to bar retrial both when the prosecution acts intentionally as well as recklessly. Because the prosecution here clearly acted recklessly, the Commonwealth could not re-try the defendant, and the Court dismissed the case.

Do you need a criminal lawyer in Philadelphia, PA? 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 successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, 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 5/18/20 Zak Goldstein 5/18/20

PA Superior Court: Restraining Child in Room With Baby Gate May Have Been Justified

The Superior Court has decided the case of Commonwealth v. Yachimoski, holding that a defendant who used a gate to keep his child in her room from leaving at night was entitled to a parental justification jury instruction. This case, aside from the absolute absurdity of it being prosecuted in the first place, highlights the importance of jury instructions in a criminal case. For one, it shows that jury instructions provide guidance to a jury on how to decide a case and, if provided, can help a defendant avoid a wrongful conviction. Additionally, it highlights the fact that a criminal court giving an improper jury instruction is often one of the strongest potential issues on appeal. If a jury is not instructed on a legal defense when there was evidence which would have supported that defense, then a defendant will often be entitled to a new trial.

Commonwealth v. Yachimowski

The defendant and his co-defendant (the mother of his child) were charged with endangering the welfare of a child (“EWOC”). The alleged victim in this case was their five-year-old daughter. The defendants elected to proceed by way of a jury trial and at their trial, the Commonwealth called several witnesses. The first witness was a case manager for Family Psychological Associates. She testified that at approximately 10:30 AM on May 17, 2018, she knocked on the front door of the defendants’ home. The defendant opened the door while holding a portable drill and let her in. After he let her in, the defendant walked to the doorway of his daughter’s room. According to this witness, she saw two baby gates which were stacked one on top of the other. The gates blocked the doorway into the child’s room. The defendant then used the drill to unscrew the top baby gate to allow his child to leave the room.

The witness then stated that she saw the child chewing on either tissue paper or a paper towel. When asked why his daughter was chewing on this, the defendant responded that his daughter “was hungry.” It is worth noting that according to this witness, the child did not look like she was underfed or lacking in proper hygiene. Additionally, she testified that the home was not in disarray and that it looked normal.

The Commonwealth also called a caseworker from Clarion County Children and Youth Services (“CYS”). The caseworker testified that she had received a report that the defendant’s child was being confined in her room by the use of secured baby gates. She also testified that she, along with two Pennsylvania State Troopers, entered the defendants’ home and went to the child’s bedroom. In the room, there was a “potty chair sitting on the floor with a box of wipes and a bed.” The CYS worker asked why they were using baby gates to block the child’s doorway and they responded it was to make sure the child “didn’t get into things whenever they hadn’t gotten out of bed in the morning.”

This was the extent of the Commonwealth’s case. After the Commonwealth rested, the co-defendant testified. She testified that they installed the baby gates in the doorway because the child “likes to get up at two or three in the morning and play” while she and the defendant are asleep. According to the co-defendant, they placed the baby gates to prevent the child’s nightly wanderings. She also testified that the CYS worker spoke to the defendants in a “raised” voice and that she told them they should not have the gates in case there was a fire. The co-defendant then testified that they “didn’t think of that when [they] put the gates up…[w]e were only doing it for [the child’s] safety.”

After being told of the dangers, they took down the gates and put them in the shed. The co-defendant reiterated that these gates were for the child’s safety. Following this testimony, the trial court permitted the Commonwealth to reopen its case. A Pennsylvania State Trooper testified that he obtained a search warrant for the defendants’ shed and they found the baby gates in the defendants’ shed with drill holes in them. They executed this search warrant during the trial because the defendants had denied fully attaching the gates to the wall.

After all the evidence was presented, the defendants’ attorneys requested that the trial court provide the jury with a parental justification instruction. The trial court denied their request because “the defendants did not use force upon or toward the child.” The jury then found the defendants guilty. The trial court sentenced the defendant to a term of nine months to two-years-less-one-day in Clarion County Jail and his co-defendant to a term of three years’ probation. The defendants then filed a post-sentence motion which was denied. They then filed a timely appeal. On appeal, the defendant raised one claim: whether the trial court erred in failing to provide a justification defense instruction.

What is the Parental Justification Instruction?

The Parental Justification Instructionderives from 18 Pa. C.S.A. § 509(1). That statute provides:

The use of force upon or toward the person of another is justifiable if:
(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person and:
(i) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct; and
(ii) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.

The parental justification defense defines conduct that is otherwise criminal, but which under the circumstances is socially acceptable and which deserves neither criminal liability nor even censure. The purpose of the parental justification defense is designed to balance competing interests. Finally, the parental justification defense has four statutory elements:

The actor uses “force upon or toward the person of another;”
The actor “is the parent or guard or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person;”
The force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct;” and
The force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.”

In the instant case, the only issue in terms of whether the instruction should have been provided was the first element which was whether the defendants used “force upon or toward the person of another.” The trial court had reasoned that the defendants did not use force upon the child by simply putting up a gate, so they were not entitled to the instruction. However, in general, defendants are entitled to an instruction for any defense which could be supported by the evidence.

The Superior Court’s Decision

The Superior Court found that the trial court committed reversible error and granted the defendant a new criminal trial. In its decision, the Superior Court analyzed the crimes code and determined that “force” was not defined. Next, the Superior Court reviewed the language of the statute. The Superior Court found that under the plain language of the statute, the defendants’ actions could constitute “the use of force toward” their child. The Superior Court found that the defendants’ actions of creating a physical barricade was a “force that was directed towards [their child].” Additionally, the Superior Court analyzed other statutes and found that confinement qualifies as a use of force in other criminal statutes. As such, the Superior Court found that the trial court erred when it did not grant this jury instruction and the defendant will get a new trial. This does not mean that the Superior Court ruled that the evidence could not possibly support a conviction of the defendants. Instead, it means that they were improperly deprived of a legal defense which was potentially supported by the evidence. The jury should have been instructed that the parents were potentially justified in using the force if they were doing it for the child’s safety. Therefore, they will receive a new trial.

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Zak Goldstein 4/14/20 Zak Goldstein 4/14/20

PA Superior Court: Overheard Statement Made To Other Patient After Treatment Not Covered By Psychotherapist Privilege

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Cook, holding that an incriminating statement made to another patient of an inpatient mental health treatment center which was overheard by a security guard is not covered by the psychotherapist privilege. The Superior Court found the statement admissible despite the fact that the guard had a minor role in providing treatment to patients and the fact that the defendant had been involuntarily committed to the facility.

The Facts of Cook

In Cook, the Pennsylvania State Police began investigating a murder in 1991. In 2016, the defendant was charged with the murder. Specifically, prosecutors filed charges for criminal homicide and robbery. Suspecting that the defense would likely object to the admissibility of certain statements the defendant had allegedly made, the Commonwealth filed a motion in limine prior to trial asking the trial court to find that those statement would be admissible at trial. The statements had allegedly been made while the defendant was involuntarily committed to a mental health treatment center in Minnesota. During that commitment, the defendant allegedly made an incriminating statement to another patient which was overheard by a Security Counselor who worked for the facility. The defendant argued that the statement was privileged under 42 Pa.C.S.A. Section 5944, which governs confidential communications to psychiatrists and therapists.

The trial court issued an order finding that the incriminating statement, in which the defendant admitted to committing a murder in Philadelphia, was privileged and could not be introduced into evidence at trial. The Commonwealth filed a motion for reconsideration, arguing that the statements were not confidential because they were made to a fellow patient rather than a psychologist or psychiatrist and because the Security Counselor had simply overheard the defendant in a public setting. Therefore, the Commonwealth argued the the statements were not made in the course of treatment by a treatment provider.

The trial court held a hearing on the motion to reconsider at which the security counselor testified. The counselor testified that he was basically a security guard and that his job was to ensure the safety and security of the facility. He would count patients for their medications and meals and make sure that they were taking their medication. He would also document any unusual patient behavior and let the nurses know. Notably, he did not administer medications, he did not prescribe medications, and he would only be present for group meetings and interactions for security purposes. He was not involved in making treatment recommendations.

The security counselor heard the statements when the defendant was in the facility’s library. This was not part of a treatment session, and treatment was not conducted in the library. There were no doctors or nurses present at the time. The defendant made the statement to the other patient while they were sitting together on the couch in the library, and the security counselor was a few feet away. The defendant knew that the security counselor was present. The security counselor visibly took notes on the exchange.

Following the hearing, the trial court re-entered its original order, finding that the testimony was privileged. The Commonwealth appealed to the Pennsylvania Superior Court.

The Pennsylvania Superior Court’s Opinion

The Superior Court reversed the trial court’s order on appeal and found that the incriminating statement is admissible. The court noted that evidentiary privileges are limited and must be strictly construed. The psychotherapist privilege applies only under limited circumstances.

Does Pennsylvania have a psychotherapist privilege?

The 42 Pa.C.S.A. Section 5944 provides:

§ 5944. Confidential communications to psychiatrists or licensed psychologists
No psychiatrist or person who has been licensed . . . to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

Can a therapist testify about things that you told them in therapy?

The psychotherapist privilege acts to bar testimony by the treating psychologist or psychiatrist as well as disclosure of certain records. The privilege does not always apply, however. While documents prepared during the course of treatment may sometimes fall within the privilege, the privilege applies only to confidential communications between psychiatrists or psychologists and their patients/clients that were made in the court of treatment. Not all records and documents regarding mental health treatment are protected. The privilege does not extend to reports, documents, or statements that do not contain communications made by the patient to the therapist.

The privilege extends to members of the treatment team, but to be privileged, a statement must be made by the client “in confidence” to a member of the treatment team and '“in the course of facilitating the treatment plan.”

Here, the defendant made his statement in a private conversation to a fellow patient during a recreational time in the library. It was not part of a therapy session, and the statement was not made to a member of the treatment team. Thus, the statements were not confidential or made in the course of treatment. Instead, they were statements made during a private conversation between the defendant and a third-party which were overheard by a security guard. Therefore, the statements are not protected by the privilege and can be used against the defendant at trial.

When does the psychotherapist privilege not apply?

As the court’s opinion illustrates, there are a number of situations in which the privilege may not apply. The privilege may not apply if:

The statement is not confidential - meaning it is made to someone other than the therapist.
The statement is made outside of a treatment setting where other people can hear it and no steps have been taken to keep the conversation private.
The statement is not made during the course of treatment.

This opinion unfortunately fails to reflect that the guard does appear to have been involved in treatment both by documenting patient behaviors for the nurses and that the defendant was committed to the facility involuntarily. Given that he was receiving involuntary, inpatient treatment, the court should have found that any statement made while he was there was privileged as it was all part of his treatment. Nonetheless, this opinion, like many, illustrates that it is much better to not make incriminating statements regarding serious crimes as courts are extremely resultant to prohibit the admission of such statements at trial. When the police tell you that anything you say can be used against you in court, they mean it.

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Zak Goldstein 2/21/20 Zak Goldstein 2/21/20

PA Superior Court: No Search Warrant Required to Access Data on Public WiFi Network

The Superior Court has decided the case of Commonwealth v. Dunkins, holding that the police do not need a search warrant to obtain data that is transmitted over a public WiFi network. This decision is significant because people access public WiFi networks on a daily basis and now may have a reduced privacy interest in that activity. If you are a suspect in a crime, the police then can use this information as substantive evidence to arrest you. Despite this information being very personal, Dunkins holds that the police do not need to obtain a search warrant to obtain this information.

Commonwealth v. Dunkins

The incident in question took place on February 2, 2017 at approximately 2:00 AM at Moravian College in Bethlehem, PA. Two men wearing ski masks pretended to be campus police officers and gained access to the dorm room shared by the complainants. The complainants were apparently known drug dealers at Moravian College. When one of the complainants opened the dorm door, one of the masked men punched him and caused him to fall. The masked men then held the students at gunpoint and demanded marijuana and the key to one of the complainant’s footlockers. The masked men accessed the footlocker and stole approximately $1,000 in cash as well as a jar of marijuana.

Several hours later, around 11:00 AM, one of the complainants reported the robbery to the campus officials. A Moravian Campus Police Officer requested that Moravian’s Director of Systems Engineering analyze its wireless network data to compile a list of the students who logged onto the network near the wireless access point in the dormitory where the complainants resided. The campus officials discovered, at the time of the robbery, that there were only three individuals logged onto the campus WiFi at that location who did not reside in that building. Two of the three WiFi users were female. The male user was the defendant, who was also a Moravian student.

The Moravian Campus Police provided this WiFi data to a detective with the Bethlehem Police Department which subsequently took over the investigation. One of the complainants told the detective that the defendant previously “robbed” him by taking marijuana from him without payment in return. The defendant was subsequently interviewed by the police. He denied the accusations and stated he has not been in the complainant’s dormitory since October 2016. This was obviously contradicted by the WiFi records.

Another student who lived in the dorm room next to the defendant told police that the defendant came to his room after midnight on February 3, 2017 and showed off a large display of cash and bragged that he obtained this money in a recent robbery. According to this student, the defendant boasted that he and another individual posed as campus police officers to gain access to the victim’s room and subsequently stole drugs and money from the complainant’s footlocker.

The Motion to Suppress

The defendant was subsequently arrested and charged with robbery, conspiracy, receiving stolen property, and simple assault. The defendant then filed a motion to suppress, arguing that the campus police conducted an illegal search in obtaining the campus WiFi log-on data without first obtaining a warrant. At his suppression hearing, the Moravian Systems Engineering Director explained that in order to utilize Moravian’s WiFi each student must log on to the network with their individual username and password. However, at their initial log-on, students may choose to have their devices automatically long on to the campus WiFi without entering their credentials again. The parties also noted that the defendant had signed the Moravian Student Handbook which indicated that he accepted and understood Moravian’s policies, including its technology rules. These rules specifically state that “users cannot and should not have any expectation of privacy with regard to any data, documents…or other computer files created or stored on computers within or connected to the institution’s network.” After the evidence was presented, the trial court denied the defendant’s motion to suppress.

The defendant then proceeded to a jury trial where he was found guilty of the aforementioned crimes. On January 4, 2019, the trial court imposed an aggregate sentence of five to ten years’ imprisonment. The defendant then filed a post-sentence motion which was denied. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. For purposes of this blog, only the issue as to whether the trial court improperly denied the defendant’s motion to suppress will be addressed.

Does the Fourth Amendment Protect Data that is Generated from Electronic Devices?

Yes. Fourth Amendment protection is not constrained by the type of property in question, but instead whether the person who claims the protection has a legitimate expectation of privacy in the property. Recently, the United States Supreme Court decided the case of Carpenter v. United States in which the Court held that law enforcement officials improperly acquired the defendant’s cell site location information (hereinafter “CSLI”) without a warrant. In that case, the law enforcement officers compelled the defendant’s wireless carriers to provide a record of his CSLI for a four-month period. This allowed the officers to track his movements during the time when robberies had occurred. In that case, the United States Supreme Court found that collecting this CLSI data without a warrant violated the Fourth Amendment.

However, the United States Supreme Court emphasized that this was a narrow opinion. Specifically, the Court said that its decision does not apply to “tower dumps” which is a download of information on all of the devices that were connected to a particular cell site during a particular interval. Additionally, other federal circuit courts have held that a person can lose their privacy interests in their data when they sign employer policies that state their electronic activity can and will be disclosed to third parties. As such, when an individual signs these “contracts,” they can lose their right to challenge the disclosure of their electronic data being transmitted to third parties.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s order denying the defendant’s motion to suppress. In its opinion, the Superior Court declined to overturn the trial court’s decision for several reasons. First, the Superior Court analogized the acquisition of the data from Moravian’s wireless campus to a “tower dump,” which as previously discussed, is permissible under Fourth Amendment law. Additionally, the Superior Court found that the defendant’s specific CSLI was not obtained in this case and therefore the police’s actions were not specifically intrusive to the defendant. Finally, the Superior Court found it persuasive that the defendant voluntarily consented to third parties accessing the data that was transmitted over Moravian’s WiFi systems. Therefore, the Superior Court found that the trial court properly denied his motion to suppress. Additionally, his other issues on appeal were denied, and therefore the defendant will not get a new trial and he will be forced to serve his sentence.

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 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.