Philadelphia Criminal Defense Blog

Zak Goldstein 6/17/21 Zak Goldstein 6/17/21

Third Circuit Court of Appeals: Partially Defective Jury Instructions Still Require Showing of Prejudice

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Baxter v. Superintendent Coal Township, holding that the failure of trial counsel to object to a partially defective jury instruction relating to reasonable doubt does not automatically require a new trial in cases where the evidence was overwhelming. The Third Circuit Court of Appeals found that although the instruction in question was at least partially defective, the defendant was still required to show prejudice, meaning that the result of the trial might have been different had the instruction been completely accurate. In this case, the Court concluded that the evidence was overwhelming, so the defendant will not receive a new trial due to the ineffective assistance of trial counsel.

The Facts of Baxter

In Baxter, the defendant was convicted of first degree murder, criminal conspiracy, and related charges. Numerous witnesses who personally knew the defendant testified against him at trial. All of his state court appeals and PCRA petitions were rejected, and he eventually filed a federal habeas petition. In the petition, he alleged that trial counsel was ineffective in failing to object to an example that the trial judge gave of the meaning of reasonable doubt.

Specifically, the judge gave the following example:

If you were advised by your loved one’s physician that that loved one had a life- threatening illness and that the only protocol was a surgery, very likely you would ask for a second opinion. You’d probably get a third opinion. You’d probably start researching the illness, what is the protocol, is surgery really the only answer. You’d probably, if you’re like me, call everybody you know in medicine: What do you know about this illness? What do you know about this surgery? Who does this surgery across the country? What is my option.
At some moment, however, you’re going to be called upon to make a decision: Do you allow your loved one to go forward? If you go forward, it’s because you have moved beyond all reasonable doubt.

Baxter’s attorney did not object to this instruction at the time, and the rest of the reasonable doubt instruction was correct. Courts have repeatedly held that this example is defective and does not accurately convey the meaning of reasonable doubt. People facing a life-threatening illness are in fact very likely to move forward with even a risky procedure that could save them from the illness.

Baxter was convicted, and he eventually challenged the instruction pursuant to 28 U.S.C. § 2254. § 2254 allows a defendant to challenge a state court conviction in federal court under certain circumstances. In this case, Baxter likely alleged that his original Post-Conviction Relief Act counsel was ineffective in raising the claim that trial counsel should have objected to this hypothetical. Where PCRA counsel has failed to raise a claim, federal courts have the ability to review the claim de novo under Martinez v. Ryan.

The Third Circuit’s Opinion

The Third Circuit accepted that trial counsel was ineffective in failing to object to the instruction. The hypothetical does not provide an accurate example of reasonable doubt, and so counsel should have objected and challenged the issue in the state courts. The Third Circuit, however, found that Baxter was not entitled to a new trial because in addition to showing that trial counsel should have done something differently, a petitioner who is seeking relief under the PCRA or in a federal habeas petition must also show that had counsel done something differently, it could have produced a different result. This is known as prejudice. In other words, the petitioner must show that the ineffective performance tainted the outcome of the trial.

Baxter argued that improper jury instructions create a structural error that requires no showing of prejudice. Under his argument, he would therefore automatically receive a new trial regardless of how strong the Commonwealth’s case was. Structural errors do require a new trial, and some examples include violating the right to a public trial, a complete deprivation of the right to counsel, lack of an impartial judge, an unlawful exclusion of grand jurors of the defendant’s race, and the denial of the right to proceed pro se.

The Third Circuit rejected this argument. It found that Baxter still had to show prejudice. Further, it concluded that because there were so many eyewitnesses who knew Baxter and claimed that he did the shooting, the strength of the case was overwhelming. The Court also reasoned that the rest of the instruction was correct and adequately conveyed the idea of reasonable doubt to the jury. Therefore, because the example likely did not impact the jury’s decision, Baxter could not show prejudice. He will therefore not receive a new trial.

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Zak Goldstein 5/26/21 Zak Goldstein 5/26/21

PA Supreme Court: Rape Shield Law Bars Evidence of Complainant's Prostitution Conviction

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rogers, holding that a defendant may not introduce evidence of a complainant’s prior conviction for prostitution to corroborate his testimony that he did not sexually assault the complainant, but rather merely engaged in paid sexual encounter. This decision addresses Pennsylvania’s Rape Shield Law, which is a powerful law that restricts a defendant’s ability to cross-examine complainants and introduce evidence to show that the challenged sex act may have been consensual. The law shields otherwise relevant evidence from the juries and often makes it difficult to defend against rape allegations even from those who have made false allegations before.

Commonwealth v. Rogers

The defendant physically and sexually assaulted five women over the course of a ten-month period in Philadelphia. The defendant was charged with dozens of crimes, including rape, robbery, and involuntary deviate sexual intercourse. The charges were consolidated for trial. In a pretrial motion in limine, the defendant sought permission to introduce evidence that two of his victims had a history of convictions for prostitution in the general area where the incidents occurred. The defendant wanted to use these convictions to show that his encounters, with these particular women, were consensual acts of prostitution.

In his filings, the defendant acknowledged that the existence of the Rape Shield Law (which generally prohibits the introduction of a complainant’s past sexual history), but argued that the Rape Shield Law did not prohibit the introduction of this evidence. The trial court denied the defendant’s motion because “none of the convictions related to encounters with [the defendant].” The defendant then elected to proceed with a waiver trial. The complainants testified in detail about their assaults and how he also stole personal property from them. The defendant also testified. He testified that he had sexual relations with all the victims, but that all of them were consensual. For two of the victims, he stated that these were sex-for-money transactions. At the conclusion of the trial, the trial court found him guilty of the aforementioned charges.

A sexually-violent predator hearing was subsequently held and the trial court determined that he qualified as such. At his sentencing hearing, the defendant was sentenced to a term of 55-170 years’ incarceration. The defendant then filed a post-sentence motion which was denied. The defendant then filed an appeal. On appeal, the defendant challenged his sentence, the weight of the evidence, and the denial of his motion in limine.

The Superior Court’s Decision

A three-judge panel of the Superior Court affirmed the defendant’s sentence. The Superior Court also denied the defendant’s appeal regarding his Rape Shield Law motion. Undeterred, the defendant filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s appeal. For purposes of this blog, only the issue concerning the defendant’s motion in limine will be addressed.

What is the Rape Shield Law?

The Rape Shield Law prohibits the introduction of an alleged victims “past sexual conduct, past sexual victimization, allegations of past sexual victimization, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct.” The purpose of the Rape Shield Law is to prevent a trial from shifting its focus from whether the defendant committed the crimes he is accused of “to the virtue and chastity of the victim.” Nonetheless, it cannot be applied in a manner that violates the defendant’s constitutional right to a fair trial, including his right to present evidence and cross-examine witnesses.

As such, courts have sought to balance the defendant’s right to a fair trial, including his right to confront his accuser, against the state’s interests embodied in the Rape Shield Law. Consequently, courts have found the Rape Shield Law unconstitutional as applied in circumstances where the defendant seeks to introduce evidence for reasons unrelated to impugning the complainant’s character and when the probative value of that evidence outweighs the danger of unfair prejudice. Each case is very fact specific and courts across the country have decided analogous issues differently. For example, an appellate court in Massachusetts has held that a defendant can introduce evidence of a complainant’s prior prostitution convictions in some cases. However, the last Pennsylvania case to address this issue held that the Rape Shield Law barred the introduction of this type of evidence.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court denied the defendant’s appeal. In its decision, the Supreme Court held that the Rape Shield Law typically only allows the introduction of a complainant’s prior sexual encounters to “demonstrate factual premises other than consent” i.e. that someone else committed the crime, the complainant was biased towards the defendant, or that the complainant had a motive to fabricate the charges. Consequently, the Pennsylvania Supreme Court found that “there is little doubt that the proofs offered by [the defendant] were statutorily precluded.” The Pennsylvania Supreme Court held that the evidence the defendant sought to introduce was the very type of evidence that the Rape Shield Law is designed to preclude. Finally, the Pennsylvania Supreme Court said that the lower court’s ruling did nothing to prohibit the defendant from establishing a consent defense. As such, the defendant will not get relief on this claim. However, he was successful on his other claim and his case was remanded back to the Superior Court to see if he is entitled to relief there.

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Zak Goldstein 5/24/21 Zak Goldstein 5/24/21

PA Superior Court: Defense Counsel Ineffective for Failing to Call Impeachment Witness in Rape Case

Criminal Defense Lawyer Zak Goldstein - Philadelphia, PA

The Pennsylvania Superior Court has decided the case of Commonwealth v. Orner, holding that trial counsel was ineffective for failing to call a witness in a rape case. The defense witness would have testified that the complainant admitted to the witness that she fabricated the claims against the defendant and that the sexual acts between them were consensual. This case really is not surprising given the crucial nature of this type of testimony, but it is a reminder that defense attorneys need to be diligent in investigating their cases and presenting witnesses that are helpful to their defense at trial.

Commonwealth v. Orner

The complainant was celebrating New Years with her boyfriend and their neighbor, the defendant. All three were drinking heavily at the complainant’s house. At approximately 9:00 PM, the complainant reported going to bed while the defendant and her boyfriend left the complainant’s residence to continue drinking at the VFW. The defendant was unable to enter the VFW and parted ways with the boyfriend.

The defendant then returned to the complainant’s residence. The defendant was subsequently questioned by the police where he denied any sexual contact had occurred between him and the complainant. He did eventually concede that he touched the complainant’s vagina when he was confronted with a search warrant for a DNA test. The defendant denied raping the complainant and would later testify that he and the complainant had been engaged in a flirtatious affair and had been “messing around” for about a year. Upon reaching the residence, the defendant claimed that he performed oral sex on the complainant for two minutes, but stopped when she asked him to and left. The defendant asserted that all sexual contact between him and the complainant was consensual.

At trial, the complainant denied that she and the defendant were engaged in a romantic affair. She testified that she had been awoken to the defendant performing oral sex on her. She also testified that the defendant penetrated her with his penis and that the defendant fled the scene after she woke up. After the defendant left, the complainant called her boyfriend, and then she called 911. Officers responded about ten minutes later, and her boyfriend was still present at the house. The boyfriend testified that he was in an insane rage after hearing the allegations, but he did concede that he had previously sent a text message claiming that the defendant and the complainant had been engaged in affair two years prior to the allegations.

The defendant was eventually arrested and charged with numerous crimes including rape, involuntary deviate sexual intercourse, sexual assault, and indecent assault. His first two trials ended in mistrials. During the third trial, defense counsel announced that he had failed to serve subpoenas on a married couple who would have been able to corroborate the defendant’s claims about his relationship with the complainant. A deputy sheriff was able to locate the husband, but the deputy could not locate the wife. The husband testified at trial and stated that the complainant had publicly expressed a desire to have sex with the defendant and had told his wife about her relationship with the defendant on the same day as he had supposedly raped the complainant. At the end of the trial, the defendant was found guilty of the aforementioned charges. The trial court sentenced the defendant to six to fourteen years’ incarceration. The defendant then filed a timely appeal. However, he withdrew his appeal.

The defendant filed a Post-Conviction Relief Act (“PCRA”) petition alleging that the trial counsel was ineffective for failing to call the wife to testify at his trial. The Court held an evidentiary hearing where both the trial attorney and the wife were called to testify. At this hearing, the wife testified that the defendant and the complainant had intended to rendezvous at the complainant’s residence while her boyfriend was drinking at the VFW. According to the wife, the defendant and the complainant were engaged in consensual sex, but they were interrupted when the boyfriend returned home. The defendant then fled the scene when the boyfriend arrived. The wife also testified that the complainant had given the defendant a key to her home and that she had confessed to her that she lied about the defendant raping her. Finally, the wife testified that had she been subpoenaed by the trial attorney she would have testified at the defendant’s trial.

The PCRA court granted the defendant’s petition and awarded him a new trial on the basis that trial counsel was ineffective for failing to call the wife at trial. Specifically, the PCRA court concluded that the wife’s testimony was “crucial because it would have greatly supported [the defendant’s] defense” that the complainant consented to the sexual acts in question that night and had a motive to fabricate the rape charges. The Commonwealth then filed a timely appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the PCRA court’s decision. The Superior Court noted that the Commonwealth’s case against the defendant depended entirely upon the credibility of the complainant. If the wife had testified at trial, her testimony would have directly undermined the complainant’s credibility. The Superior Court ruled that the wife’s testimony was “unquestionably beneficial” to the defendant’s trial defense. Consequently, trial counsel’s failure to subpoena the wife deprived the defendant of crucial support for his proffered defense. Therefore, the defendant’s conviction is vacated, and he will get a new trial.

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Zak Goldstein 5/10/21 Zak Goldstein 5/10/21

NOT GUILTY: Attorney Goldstein Wins Rape Trial

Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia criminal defense lawyer Zak T. Goldstein recently won a full acquittal for his client in the case of Commonwealth v. LJ. In this difficult case, prosecutors alleged that LJ had sexually assaulted his girlfriend’s 9-year-old daughter while the girlfriend was sleeping. Based on the statements of the complainant and the complainant’s mother, who claimed to have seen some suspicious behavior but had not gone to police, prosecutors arrested LJ and charged him with rape, involuntary deviate sexual intercourse, indecent assault, and related charges.

LJ rejected an offer to plead to time served and misdemeanor charges despite knowing that a conviction could result in a life sentence. Attorney Goldstein represented LJ during one of Philadelphia’s first jury trials since resuming trials during the COVID pandemic and successfully challenged the complainant’s credibility on the stand. By highlighting major inconsistencies in her testimony and presenting forensic evidence which made it unlikely that LJ had assaulted her on the day in question, Attorney Goldstein was able to obtain a full acquittal for LJ. LJ will now be released and will not have to register as a sex offender or spend time in prison.

These cases are very serious and often difficult to win, but the Philadelphia criminal defense lawyers of Goldstein Mehta LLC are not afraid to take challenging cases to trial.

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