Philadelphia Criminal Defense Blog

Zak Goldstein 10/15/21 Zak Goldstein 10/15/21

PA Superior Court Reins in Prior Bad Acts Evidence in Homicide Case

The Pennsylvania Superior Court has decided the case of Commonwealth v. Green, holding that the trial court improperly granted the Commonwealth’s Prior Bad Acts Motion in a homicide trial. The Superior Court found that the facts of the two cases were not sufficiently similar to justify introducing evidence that the defendant had previously committed another crime and therefore the defendant was unfairly prejudiced at trial. This case is very significant because prosecutors frequently attempt to introduce evidence of prior misconduct by the defendant in serious cases and courts routinely grant these motions. Once a jury learns that the defendant already has a criminal record, it becomes extremely difficult to obtain a fair trial. Therefore, it is very important the Superior Court has found a limit to what type of prior bad acts evidence prosecutors may introduce at trial.

Commonwealth v. Green

A woman was shot and killed in her convenience store in South Philadelphia. A man entered the decedent’s store, aimed a firearm at her, and shot her ten times. The man then fled the store. A short time later, the gunman, later identified as the defendant, was seen on video surveillance entering a black Chevrolet Impala located nearby.

A Philadelphia Police detective spoke to the defendant’s girlfriend. The girlfriend told the police about a night that happened six months prior to the murder. According to the girlfriend, the defendant left her alone in his house and after he left, the girlfriend spoke with the decedent’s grandson and they decided to steal the defendant’s favorite necklace. The girlfriend stole the defendant’s necklace and then gave it to the grandson to pawn. They then split the money and used it to buy drugs.

Four days after the shooting, the defendant was arrested and was charged with first-degree murder, carrying a firearm without a license, carrying a firearm on a public street in Philadelphia, possession of an instrument of crime, and recklessly endangering another person. The Commonwealth filed a motion to introduce prior bad acts. Specifically, the Commonwealth sought to present evidence regarding an incident that took place 14 months prior to the murder. During this incident, the defendant allegedly had a physical altercation over a drug dispute with an individual named “Jay” and in retaliation, shot at “Jay’s” grandmother’s house. However, the defendant was not arrested regarding this incident. According to the Commonwealth, this showed that the defendant had a common scheme or plan of committing retribution against the grandmothers of those with whom he had drug disputes. The trial court granted the Commonwealth’s motion to admit the evidence of the prior shooting.

The defendant elected to proceed by jury trial and represented himself. During his first trial, the trial court declared a mistrial because the jury was unable to return a unanimous verdict. During the defendant’s second trial, he was found guilty of all charges. On the same day, the trial court sentenced the defendant to life in prison. The defendant filed a post-sentence motion which was denied. The defendant filed a timely appeal. On appeal, the defendant raised several issues, but for purposes of this blog, only the issue of whether the trial court improperly granted the Commonwealth’s prior bad acts motion will be addressed.

What is a Prior Bad Acts Motion?

Pennsylvania Rule of Evidence 404(b) is the relevant rule that governs prior bad acts motions. Rule 404(b) states:

1) Prohibited Uses. Evidence of a crime, wrong, other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

Evidence of prior crimes is not admissible for the sole purpose of demonstrating a criminal defendant’s propensity to commit crimes. However, this type of evidence may be admissible in certain circumstances where it is relevant for some other legitimate purpose and not utilized solely to blacken a defendant’s character. Specifically, other crimes evidence is admissible if offered for a non-propensity purpose, such as proof of an actor’s knowledge, plan, motive, identity, or absence of mistake or accident. As such, when this evidence is offered for a legitimate purpose, evidence of prior crimes will be admissible if its probative value outweighs its potential for unfair prejudice.

When ruling upon the admissibility of evidence under the common plan exception, the trial court must examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive. In making its decision, trial courts are supposed to consider the habits or patterns of actions undertaken by the defendant. Additionally, trial courts must also consider the time, place, and types of victims. Further, the common plan evidence must not be too remote in time to be probative to the instant matter.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court and granted the defendant a new trial. The Superior Court found that the two incidents were just too different, and therefore the trial court committed reversible error by granting the Commonwealth’s motion. Specifically, the Superior Court found that two different guns were used in the shootings; the defendant was not arrested in the prior bad acts motion shooting; the two shootings were 14 months apart; and in the prior bad acts shooting, only the door was shot. Because these two shootings were too distinctive from one another, the evidence of the prior shooting should not have been admitted at the trial. Therefore, the Court vacated the defendant’s judgment of sentence, and the defendant will receive a new trial.

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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 6/30/21 Zak Goldstein 6/30/21

PA Superior Court: Threatening and Later Hitting Someone Sufficient Evidence for Terroristic Threats Conviction

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Campbell, affirming the defendant’s conviction for terroristic threats. The Superior Court’s decision in this case is not surprising given that the defendant threatened the complainant and then proceeded to physically attack him. However, other terroristic threats cases are not always this obvious. Further, the Commonwealth will frequently charge terroristic threats in addition to other crimes of violence. As such, if you are charged with terroristic threats, it is imperative that you have a skilled attorney representing you because it requires a very specific attention to details in orderly to properly defend against this charge.

Commonwealth v. Campbell

The defendant was painting the floor of the complainant’s house in South Philadelphia. The defendant asked the complainant to give him $500 for more materials to which the complainant responded that he would only give the defendant $300. As a result of this, the defendant became angry and started yelling and cursing at the complainant. The complainant would later testify that he became scared because of the defendant’s yelling. The complainant then tried to call the police, but the defendant slapped the phone out of his hand before he could do so.

After he slapped the phone out of the complainant’s hand, the defendant then went to his van. While he was out there, the complainant was able to call the police. The defendant then returned to the complainant’s house and confronted the complainant on his front porch. The two men got into a physical confrontation which resulted in the defendant punching the complainant in the mouth, knocking the complainant’s two front teeth out. The defendant said to the complainant “if you don’t give me money, I’m going to finish you.” After this exchange, the defendant left the complainant’s residence.

After the defendant left, the complainant retreated to his van to wait for the police. Before the police arrived, the defendant came back to the complainant’s house, this time with his four children. The defendant walked up to the complainant’s car and struck him with a tire iron. A short time later, the police arrived. The complainant initially refused medical treatment because he was waiting for a locksmith to come to change his locks because the defendant had a key to his home. After the locksmith changed the locks, the complainant did go to the hospital for treatment. The record is unclear as to what other injuries the complainant sustained.

The defendant was subsequently arrested and charged with aggravated assault and terroristic events. The defendant elected to proceed by a bench trial. At trial, the complainant testified to the aforementioned facts. The defendant also testified. He admitted to getting into a physical altercation with the complainant over money and punching him in the mouth. He also admitted to hitting the complainant with a weapon, but he said that he hit him with nunchucks and that this was done in self-defense. Finally, and most relevant for this blog, he admitted telling the complainant that if he did not give him his money, he would finish him.

At the conclusion of the trial, the trial court found the defendant guilty of simple assault, possessing an instrument of crime, and terroristic threats. He was sentenced to two years’ probation. The defendant filed a timely appeal. On appeal, the defendant only challenged his conviction for terroristic threats. As stated above, he admits that he made the above statement to the complainant. However, he argued that this was not sufficient to convict him of the charge of terroristic threats because the threat amounted only to a “spur-of-the moment threat made as a product of transitory anger.”

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the defendant’s conviction for terroristic threats and found that his claim was “meritless.” In order to sustain a conviction for terroristic threats, the Commonwealth must prove that the defendant 1) made a threat to commit a crime of violence and 2) the threat was communicated with the intent to terrorize another. The Superior Court found that the purpose of the terroristic threats statute was to impose criminal liability on individuals who make threats which “seriously impair personal security.”

In reviewing the record, the Superior Court found that there was more than sufficient evidence to convict the defendant of terroristic threats. The fact that the defendant actually hit the complainant after making said threat showed that the defendant did not merely make said threat during a period of transitory anger. What was most damning for the defendant, was that he made the threat to the complainant, left the scene, and then returned again to attack the complainant. To the Superior Court, this showed that the defendant had intended to terrorize the complainant when he made said threat. As such, the defendant will not get relief and his conviction will stand.

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

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

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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